A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management

 

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• Marjory Harris


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American Board of Vocational Experts (ABVE) is a professional credentialing body whose Diplomates and Fellows have academic preparation in several disciplines (rehabilitation, psychology, economics and various aligned disciplines) and in assessment, counseling and consulting.


HARRIS: Many of us know you as a LeBoeuf expert.
Are you also doing diminished future earning
capacity [DFEC] analysis under the new Labor
Code §4660?


SCHUSTER: I have just started with DFEC cases in
state workers’ compensation. I have done DFEC
analysis in family law and personal injury cases,
where there are similar issues of employability and
earning capacity.

 

To learn more about diminished future earning capacity [DFEC] analysis under the new Labor Code §4660, click here


HARRIS: What methods do you use to analyze
loss of ability to compete in the open labor market
under the old rating system, and DFEC under the
new system, and how do they differ?


SCHUSTER: The methods are similar for the two,
and also for family law and personal injury cases.
I want to know how the individuals spend their time,
how they feel, their daily responsibilities, education,
interests, work and medical histories, what they want
to do, what they have done. I do empirical research –
calling potential employers, examining want ads,
and the like – if I think the individual has any capacity
to work.

With DFEC, I look at pre-injury earning capacity --
what they did earn or might have earned. Then I
evaluate what that earning capacity is now post-injury
for both entry level and experienced level. I also look
at the worker’s “worklife expectancy” and whether it
has been reduced because of the injury.

 

HARRIS: How do you determine “worklife
expectancy”?


SCHUSTER:
I rely on The New Worklife Expectancy
Tables
and the medical reports and records. I also
look at pre-injury worklife expectancy for the type of
work and educational level. Even if the worker had
never been injured and was in good general health,
there is a limit to how long he or she can work at a
particular occupation. Other factors have to be
considered: we have to look at age, education, unemployment, gender and disability, both before
and after the work injury.

 

"Worklife Expectancy" is the number of years somebody is expected to work between now and the end of his or her life expectancy. From Vocational Econometrics, Inc.

The New Worklife Expectancy Tables, now in its sixth edition for 2006, continues to be the only source of worklife expectancy statistics adjusted for disability. Derived from government statistics, these tables are subdivided by:

Age - Worklife expectancies are provided for each age from 16 through 74.

Education - Education categories are: less than high school, high school degree or equivalent, some college but less than baccalaureate, and baccalaureate and higher.
A final category is included averaging all persons, regardless of education level.

Gender - Separate tables are provided for males and females.

Level of Work Disability - Using data from the Annual Social and Economic Supplement and from the American Community Survey of the US Census Bureau, worklife expectancies are further divided by disability status. From the ASEC, the categories are those with no disability, those with a "not severe" disability, and those with a "severe" disability. A category is also provided for the average of all persons with disability, regardless of severity. From the ACS, categories for Physical and Cognitive Disability (by severity) are added.


HARRIS: It is my experience that you call it as you see it, no matter who is hiring you. Yet I find that members of the defense bar are generally not willing to use an agreed-upon vocational expert, although they are used to using Agreed Medical Evaluators. Are the methods that you employ “scientific” and objective?

SCHUSTER:
This is not hard science. It is opinion
testimony. No matter how scientific you may make it
sound, the outcome is only as good as the input.
I start with a thorough interview and analysis. I need
to spend enough time with the individual to get a
clear picture of what he or she can or cannot do. I do
testing. Then I use a software program -- Robert
Hall’s SEER program – to analyze transferable skills
for jobs that are appropriate post-injury. Then I use
published data from Employment Development
Department (EDD) and the Department of Labor to
assess wages for entry level, medium level and
experienced levels. Lastly, I use a formula developed
by Robert Hall, Ph.D., known as “SEDEC” to arrive at
the “estimated diminished earning capacity over
the worklife.

 

For Robert Hall’s article, “Determining Diminished Earning Capacity in the California Workers' Compensations Program: The "SEDEC" Method,” click here


HARRIS: What do you need from the attorneys
who retain you? Are there particular types of
documentary evidence we should send? Do you
want or need to see all the subpoenaed medical
records and the entire medical file? Do you like us
to prepare a brief case synopsis?

SCHUSTER:
I always appreciate a synopsis. I do not
have to see all of the medical or physical therapy
records. I need the narrative reports from the various
examiners, on both sides. If there is a functional
capacity evaluation. I want to see it. I want to see
anything related to vocational rehabilitation, if
available. If I am sent inadmissible medical reports
to review, I would like to be told that, so that I do not
base my opinions on inadmissible evidence.

 

HARRIS: Would you like us to obtain the
employment records from all past employers?
It would help us in tailoring our subpoena requests
to know what exactly you are looking for in the
employment records. Could you give us some
pointers?

SCHUSTER:
I find employment records very helpful.
If I know that the employee got good performance
reviews, awards, raises, or had special skills or
supervisory experiences, it tells me the employee,
before the injury, had better than average earning
capacity for that kind of work. If after the injury, they
are hardly functioning, I know that premorbidly they
were very different. Payroll records provide earnings
history. Union records for people working out of union
halls are helpful. The unions keep wage information
for the various categories, such as apprentice,
journeyman, foreman, etc., and that would tell me
what the worker would have been earning if not
injured. So it is not just what they were earning on
the date of injury that I need to know.

 
Sample Request for Personnel and Payroll Records

HARRIS: In my experience, you write very thorough
reports and draw firm conclusions. Cases often
settle without testimony. If you do have to testify,
what do you need from the lawyer who retains you
in order to be effective as an expert witness?

SCHUSTER:
I always appreciate the opportunity to
talk about the trial with the attorney. I want to know
their theory of the case, where the attorney is going with the case and how my testimony will be helpful.
Or whether anything has changed since they sent
me the client and the records. It is also a good time
to find out whether more information is needed,
whether there have been any medical or vocational
changes in the worker’s life since I reported on the
case. It is also a good opportunity to make sure the
attorney has my CV and will qualify me as an expert
witness.


 

Sandra Schuster, M.P.A., holds certifications as a
vocational expert, rehabilitation counselor, and
case manager.

For more information, click here.

Sandra Schuster, M.P.A.
161 W. 25th Avenue, Suite 105
San Mateo, CA 94403

Telephone: (650) 357-1276
Facsimile: (650) 522-9084
sschuster@sbcglobal.net

 
   



The Vocational Expert Witness

Sandra Schuster, M.P.A. is a vocational expert, certified by the American Board of Vocational Experts, who testifies in LeBoeuf and other cases. In this interview with Marjory Harris, she explains the process she follows when evaluating employability and earning capacity.
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HARRIS: Sandy, you are
retained by both sides of the
bar as an expert witness in
civil and workers’
compensation cases, to
examine issues of
employability and diminished
earning capacity. How did you
get into this line of work?


SCHUSTER: By accident. I was
working on a case as a Qualified
Rehabilitation Representative,
when the applicant’s attorney
was sued for malpractice for failing to file a third party case. I was called as an expert witness in the jury
trial, on the issue of mitigation of economic losses.
After that, I could honestly say I had experience as
an expert witness. So I started to be retained and by
word of mouth, built a practice as an expert witness.
I spend around 70% of my time preparing for
litigation as an expert.