Vocational Experts’ Evidence – the Basics
For newer worker’s compensation practitioners, vocational expert evidence is likely unfamiliar, possibly uncomfortable territory. This is a review of vocational expert evidence broken down to the basics.
To start, what manner does the Worker’s Compensation Appeals Board want vocational expert evidence produced? The Labor Code section 5703 and the Title 8, section 10606.5 of the California Code regulations both set forth that the favored manner of production of vocational expert evidence is by way of written report. LC section 5703 (j) specifically provides that, if vocational evidence is otherwise admissible, the evidence shall be produced in form of written report.
The code also establishes that vocational expert witness testimony shall not be received at trial, unless upon a showing of good cause. So pragmatically speaking, absent special circumstances, out of considerations of judicial economy, a finding of good cause would be rare, and thus presentation of vocational expert evidence would likely be limited to by way of reporting. As such, knowing what elements can and should be incorporated into a vocational report is of high importance. Note that, vocational reports that do not satisfy the requirements mandated by the code are arguable not substantial evidence.
The technical stuff. Title 8, section 10606.5 (b) of the California Code of Regulations provides vocational report shall, meaning must include the following elements: a declaration by the vocational expert that the information contained in the report is true and correct; the report shall disclose the qualifications of the vocational expert, typically satisfied by attaching a curriculum vitae; and the report shall contain a second declaration that no person other than the vocational expert participated in the non-clerical preparation of the report; and expert herself must personally compose and draft the conclusions of the report. A report can be objected to as inadmissible for failure to comply with the requirements of this code section. It would also be appropriate to argue that the report should hold little evidentiary weight, and is not credible, reliable, or substantial evidence due to noncompliance with code requirements.
A vocational expert’s report should include the following:
- The date(s) of any evaluation(s), interview(s), and test(s);
- The history of the injury;
- The employee’s vocational history;
- The injured employees complaints;
- A listing of all information reviewed in preparation of the report or relied upon for the formulation of the vocational expert’s opinion;
- The injured employee’s medical history, including injuries and conditions, and residuals thereof, if any;
- Findings and opinions on evaluations;
- The reasons for the opinion;
- The signature of the vocational expert.
The work history assessment should include a description of the physical duties for each job, “Specific Vocational Profile” for each job (which is an evaluation of level of skill needed to be proficient for each job) and the U.S. Department of Labor Dictionary of Occupational Trades (DOT) codes for each job, and whether the claimant performed the job as described in the DOT or not.
The expert should assess whether the applicant is presently capable of performing his past relevant work, taking into consideration work restrictions and current impairments- both physical and mental. The expert should consider whether the applicant has any transferable skills that can be used in other jobs.
Most importantly in a LeBoeuf rebuttal, the expert must assess whether the claimant is amenable to vocational rehabilitation. And if it is determined that applicant is not amenable to rehabilitation, the expert must clearly assess why not.
Vocational exert reporting is offered to challenge a standard permanent disability rating. Look to the body of the report. Review the expert’s analysis and opinions, and ask yourself, what is being attacked? What information did the expert rely upon in reaching her opinion? Was the report robust with analysis? Or did expert provide mere conclusory statements of opinion? Are the report requirements provided by the code satisfied by this report? Is the report credible and reliable? And same as with medical reports, the ultimate consideration is whether the report rises to the level of substantial evidence, or not.