Personal Injury

Considering an expert: which loss is contested, and at what size

The considering stage decides whether earning capacity, future care or household services is actually in dispute and whether the amount at stake justifies an expert on either side. A soft tissue injury with a full return to work usually presents nothing for a vocational expert to evaluate; a permanent restriction that removes a person from the only trade they know presents a great deal. Counsel reads the medical record for permanent restrictions, the employment record for a job those restrictions defeat, and the household facts for services no longer performed, and retains only for the questions that survive that reading.

Timing is the second decision. Retaining after the medical picture has settled avoids a report built on interim restrictions, but waiting until discovery closes can leave the expert without the depositions and testing the opinion needs. The stage checklist sets those two considerations against the case calendar.

Retaining: the contested question, the records and the evaluation

Retention defines the question narrowly. A vocational engagement in a personal injury matter states whether the expert is to opine on employability, on earning capacity, on both, or on the reasonableness of a job search, and whether an evaluation with standardized testing is part of the scope. The records package is the medical record with any functional capacity evaluation, the employment and earnings history, the educational record, prior vocational testing and the claimant's and treating providers' depositions where taken. KWVRS vocational experts state in the report which of those were received and which were not.

Where a life care planner or an economist is also retained, the engagement letters allocate the questions so that future care is the planner's, work capacity is the vocational expert's and present value is the economist's, and each report names the others it relies on.

Preparing for deposition: the method, step by step

A personal injury vocational expert is deposed on method. Preparation rehearses the transferable skills analysis from the work history through the skill inventory to the occupations retained and excluded, the application of the functional capacity findings to the demands of each occupation, and the labor market survey with its employers, dates and wages. The expert should be able to name each source and each restriction adopted, and to explain how any pre-existing condition was treated. Opposing counsel will look for a generalization from the functional capacity evaluation that the evaluation does not support, and preparation removes it before the transcript does.

The same preparation covers the planner and the economist where retained: the treating recommendations behind each care item, and the assumptions behind each projection.

Trial: an accessible account of what work remains

At trial the vocational expert explains, without jargon, what the person did, what the injury took away, what work remains open and what it pays. Side-by-side occupational comparisons and a simple wage chart do more than a recitation of occupational codes, and the labor market survey is presented as the concrete inquiry it was. The economist's present value testimony follows and uses the vocational figures as inputs, so the two witnesses are prepared together and sequenced deliberately. The trial account must be consistent with the deposition in every detail, and counsel on either side prepares the expert for the pre-existing condition questions that are asked in nearly every injury trial.