The RAPEL Method: How Vocational Experts Organize an Earning Capacity Opinion

The five letters stand for Rehabilitation plan, Access to the labor market, Placeability, Earning capacity, and Labor force participation. Roger O. Weed, a rehabilitation counselor and certified life care planner, developed RAPEL in the early 1990s as a mnemonic, a memory prompt meant to keep a forensic report from leaving out an element of future care or earning capacity damages; his own account calls it a method, and the authors who extended it call it a model (Weed, 2004; Neulicht & Berens, 2005). Each letter poses a question the evaluation answers, and the earning capacity answer builds on the three before it:

• R - Rehabilitation plan. What services, training, accommodations, or medical steps would realistically support a return to work, and what would they cost and take?
• A - Access to the labor market. Given the person's education, skills, work history, and documented restrictions, which occupations remain open, and which are now closed?
• P - Placeability. Of the occupations that remain open, how likely is the person to actually be hired, considering the local labor market and real-world barriers?
• E - Earning capacity. What wage range is reasonably available now and over the working life, compared with pre-injury capacity?
• L - Labor force participation. How consistently can the person be expected to work over time, full time, part time, or intermittently, and for how many remaining work years?

The rehabilitation plan component asks whether a realistic path back to work exists and what it requires. The evaluator considers medical recommendations, functional capacity findings, retraining or education options, assistive technology, and workplace accommodations. The plan is documented in terms of specific services, duration, and cost so that the same assumptions can be carried into the economic analysis and, where applicable, a life care plan.

Weed bases the plan on the person's vocational and functional limitations, vocational strengths, emotional functioning, and cognitive capabilities, and lists testing, counseling, training fees, rehabilitation technology, job analysis, job coaching, and placement among the services it may include, with reasonable accommodation considered as well (Weed, 2004).

Access is established through transferable skills analysis: the evaluator identifies the worker traits and skills acquired through prior work and education, then compares them against occupational requirements using the Dictionary of Occupational Titles and O*NET (U.S. Department of Labor, 1991; National Center for O*NET Development, n.d.). Medical restrictions are applied to exclude occupations whose physical, cognitive, or environmental demands exceed the documented capacity. The result is a defined set of occupations the person can still perform, and a defined set that has been lost. Access is measured from the person's worker traits without regard to whether the jobs are open today, and it can record a loss of choice on its own: a person may lose access to most of the occupations once open and still earn the pre-injury wage (Weed, 2004).

Placeability asks a different question than access. Access counts the occupations that fit the person's traits and restrictions; placeability asks how likely the person is to be hired into one of them, which is where, in Weed's phrase, "the rubber meets the road." Even at the same starting wage, a person with fewer realistic openings may have less room to climb the ladder over a career (Weed, 2004). An occupation can be within a person's capacity yet be difficult to obtain because of local demand, hiring practices, licensing or certification requirements, the need for schedule flexibility, visible limitations, gaps in work history, or age. The evaluator may use a labor market survey and published employment data to test whether the remaining occupations are realistically attainable in the relevant geographic area. Placeability is an assessment of likelihood supported by evidence; it is not a job search and does not guarantee an outcome.

Earning capacity compares what the person could reasonably earn before the injury with what remains available after it. Pre-injury capacity is grounded in actual earnings history and the occupations held or realistically attainable. Post-injury capacity is drawn from the wages of the occupations that survive the access and placeability analysis, using published wage data such as the Occupational Employment and Wage Statistics program (U.S. Bureau of Labor Statistics, n.d.). The opinion is often expressed as a reasonable range rather than a single figure, and the difference between pre- and post-injury capacity is the loss of earning capacity that the forensic economist then projects and discounts to present value.

An earnings history does not always show capacity. In Weed's examples, a third-year law student injured while delivering pizzas is assessed at the earning capacity of an attorney, not of a delivery driver, and a parent at home with a master's degree has a capacity to earn without recent earnings. He adds that the earnings history may represent capacity by about age 35 to 40, though each person is evaluated individually (Weed, 2004).

The final component addresses how much of the remaining work life the person can be expected to spend working. It considers whether full-time, part-time, or intermittent participation is realistic given the condition, the expected course of treatment, and the demands of the surviving occupations. Published worklife expectancy tables provide the population baseline, with case-specific adjustments where the record supports them (Skoog, Ciecka, & Krueger, 2011).

Weed asks for the reduction to be shown in dates or percentages. In his example, a person who worked 40 hours a week before a brain injury and can reasonably be expected to work four hours a day afterward shows a 50 percent reduction in time at work, which he counts as a loss of worklife expectancy before any other factor is considered; a longer job search, more time between jobs, time off for treatment, and earlier retirement are among the other sources of loss he lists (Weed, 2004). Worklife tables count years in the labor force, not hours worked (Skoog, Ciecka, & Krueger, 2011), so a forensic economist usually carries a part-time limit as lower annual earnings rather than as fewer worklife years; as the worklife expectancy guide explains, a limit applied both ways is counted twice.

PEEDS-RAPEL is the pediatric extension of the model, introduced by Ann T. Neulicht and Debra E. Berens for evaluating children (Neulicht & Berens, 2005). A child usually has no work history to measure, so five steps come before the RAPEL elements:

• P - Parental and family occupations. The work and skill levels of parents, older siblings, and other adults likely to serve as role models.
• E - Educational attainment. The family's pattern of schooling and the skills it produced.
• E - Evaluation results. The child's physical, cognitive, emotional, and vocational capacities from interview and formal assessment, compared with pre-incident function when appropriate.
• D - Developmental stage. The milestones expected at the child's age and the effect of the disability on reaching them.
• S - Synthesis. Those findings integrated into the options reasonably available to the child.

The five RAPEL elements then follow, with earning capacity framed by the skill level of the occupations the child could reasonably have been expected to perform before and after the injury (Neulicht & Berens, 2005). In a 2023 survey of forensic vocational consultants, 57 percent reported using PEEDS-RAPEL during their careers (Sprong et al., 2023).

After a catastrophic injury, RAPEL's rehabilitation plan may call for a full life care plan, and the placeability and labor force participation findings can change the care that plan has to fund (Weed, 2004). Weed designed RAPEL for life care planners as well as vocational experts. Where the person can still be educated or trained, the life care plan carries the vocational services: educational support, vocational assessments, counseling, job analyses, and labor market surveys. Access to the labor market usually stays out of the life care plan report. Placeability and labor force participation reach back into it: Weed describes a case in which the life care planner, assuming the person could not work, provided 24-hour attendant care, while the vocational expert on the same case concluded the person could work at least part time and did not need attendants around the clock. Part-time work or an earlier retirement can call for added attendant care or other services, so the care schedule and the work schedule have to describe the same person.

When an opinion organized under RAPEL is challenged under the Daubert standard, the court looks at the reasoning and methods behind that particular opinion and at whether they were reliably applied to the facts of the case (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993; Kumho Tire Co. v. Carmichael, 1999); a state that applies its own test frames the question in its own terms. RAPEL names the questions but leaves the methods to the evaluator, so the weight rests on what sits under each heading: the skills analysis, any labor market survey, and the wage data (Robinson & Pomeranz, 2011). In one federal case, the court denied a motion to exclude a vocational expert who had applied RAPEL, treating the objection that he had not reviewed all of the relevant records as a matter for impeachment rather than a ground for exclusion (Hobus v. Howmedica Osteonics Corp., 2023). Attorneys confirm the governing rule for their case.

The research literature describes both sides of that design. A 2011 article that reviewed the published models before introducing the authors' own, the Vocational and Rehabilitation Assessment Model (VRAM), called RAPEL the most widely referenced vocational rehabilitation model of earning capacity analysis, with strong face and content validity within the vocational rehabilitation community, based on its breadth of publication (Robinson & Pomeranz, 2011). The same article cautioned that the flexibility of RAPEL's sub-methods could compromise its reliability and that no empirical evidence of its validity or reliability had been reported; a 2023 survey study repeats that the empirical evidence has not been shown (Robinson & Pomeranz, 2011; Sprong et al., 2023).

RAPEL does not favor a plaintiff or a defense position. Its value is that each conclusion is tied to a stated question, a stated method, and identifiable data, which lets the court and opposing counsel trace how the evaluator reached the opinion. Professional standards for forensic vocational practice call for opinions that are demonstrably objective and reasonable, in reports that are thorough and make clear where any data gathered by others came from (International Association of Rehabilitation Professionals, n.d.).

"RAPEL produces the damages number." It does not. RAPEL organizes the vocational findings; the economic loss is calculated separately from those findings.

"Placeability means the expert found the person a job." Placeability is an evidence-based estimate of the likelihood of employment in identified occupations, not a placement service.

"A RAPEL report is only for plaintiffs." The same framework is used to evaluate or rebut an opposing opinion, and an evaluation may conclude that little or no capacity was lost.