Long Term Disability

Considering an expert: the definition, the record and the window

The considering stage decides three things in order. First, which definition governs: an own-occupation standard asks whether the person can perform the material duties of the job they held, an any-occupation standard asks whether any suitable occupation exists, and a policy may move from one to the other after a stated period. Second, whether the administrative record already contains the functional evidence a vocational opinion needs, or whether a functional capacity evaluation or an updated medical statement must be obtained first. Third, whether the record is still open, because in an employer-sponsored plan the vocational report usually has to be in the file before the final administrative decision to be considered at all.

Counsel who resolve those three questions know whether an expert is useful, what the expert will be asked, and by when the report must exist.

Retaining: the definition applied to the functional profile

Retention in a disability matter hands the expert the policy language, the administrative record and the medical and functional evidence, and asks a precise question: under this definition, with these restrictions, does the occupation the person held remain performable, or do suitable occupations exist. The engagement should state which definition applies at the relevant date and whether the expert is to address the transition from one definition to the other. KWVRS vocational experts apply the definition as written, identify the material duties or the suitable occupations from occupational and labor market sources, and state which functional findings each conclusion rests on.

The records package is the policy with its definitions, the complete administrative record, the medical records and any functional capacity evaluation, and the employment and salary history, and the engagement letter should set the deadline against the record closure date rather than the litigation calendar.

Preparing for deposition: the definition, the restrictions and the labor market

Where a deposition is taken, it tests whether the expert applied the right definition, grounded the transferable skills analysis in documented restrictions, and showed that any occupation identified exists in meaningful numbers in the person's labor market at a wage the policy treats as suitable. Preparation walks through the definition adopted and why, each restriction relied on and its source, the skills transferred and the occupations they support, and the labor market evidence. The expert should be ready to say what changes if the other definition applies, because that question is asked whichever side retained the expert.

Where the case is governed by the administrative record, preparation also covers what the expert may and may not add beyond it.

Trial: the policy definition explained to a bench or a jury

Trial in a disability matter is often a bench proceeding on the record, and where live testimony is taken the vocational expert explains the definition, the functional profile and the occupational analysis in that order, in plain terms and without straying from the record the court is reviewing. Where an individual policy outside an employer plan reaches a jury, the same testimony is given with demonstratives that compare the material duties of the prior job with the person's documented capacity. In either setting the account must match the report in the file and any deposition, and counsel confirms the forum's rules on expert evidence before the witness is called.