Determining Diminished Earning Capacity for Your Personal Injury Client

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earning capacity for your personal injury client

Sometimes calculating damages in a persuasive, understandable way is the hardest part about proving your client’s case in court or at the settlement table.  If you are an attorney who has an extensive book of personal injury clients, then getting help from experts – like vocational experts – is the key to a compelling presentation of damages.  Note, you need to not only prove those damages but explain how extensive the damages are, so you can obtain the most compensation for your client at the end of the day.  

To that end, in this article, we will discuss a case study to demonstrate how helpful vocational experts can be to prove damages in your case.  The case study is, in fact, one in which our own vocational experts at Occupational Assessment Services, Inc. (OAS) were involved. If, after reading this article, you have any questions about how an OAS vocational expert can help with your personal injury case, please contact us.

Case Study: The Backseat Passenger

A New Jersey woman was sitting in the back seat of a car stopped at a red light. A truck rear-ended the vehicle. The victim, who works as an office cleaner, suffered back injuries. At first, she was treated conservatively for her spinal injuries, but later she had to endure a two-level spinal fusion. 

After recovery, she returned to her job cleaning offices. However, complications from her back injury slowed her down, resulting in a 20 percent diminished earning capacity for the remainder of her working career.

She sued the truck driver. 

As part of her settlement discussions, OAS vocational experts conducted an objective assessment of her medical condition and analyzed the details of her job market. With the help of these experts, her attorney was able to negotiate a settlement of $1.3 million.

Proving Diminished Earning Capacity

At trial, after hearing all the testimony from witnesses and expert witnesses, it is the jury’s job to decide on an appropriate award of damages for diminished earning capacity. If it’s proven to the jury that the plaintiff suffered the injury, then it considers the following factors in determining an award:

1. Length of time plaintiff was unable to work;
2. Income before the injury;
3. How the injury affected their ability to perform tasks required for the job;
4. Decrease in income after returning to work; and
5. Other jobs that the plaintiff, with their education and skill set, could perform to earn income.

Prior to deliberation, the judge also provides the jury advice on how to consider the testimony of expert witnesses. This includes the following in evaluating the reliability of their testimony:

1. Cross-examination by opposing counsel;
2. Evidence presented by the opposing party, including their experts; and
3. Independent assessment of any bottom-line figures proffered.

How Vocational Experts Help Prove Diminished Earning Capacity

The vocational expert’s job, as part of the personal injury lawyer’s team, is to calculate the extent of diminished earning capacity and then be ready to present their evidence at trial. Backed by hard data and armed with powerful exhibits, they educate the jury about the impact of the injury on the plaintiff’s lessened ability to earn a living.

There are two fundamental bases to proving diminished earning capacity – establishing the plaintiff’s injuries and their effect on employment. The personal injury lawyer uses physicians for proving the injuries, while the vocational expert works with economists on demonstrating the injuries’ effect on employment.

The process for proving diminished earning capacity consists of these steps:

1. Executing a vocational evaluation
2. Considering the effect on employment
3. Completing final preparations.

1. Vocational Evaluation

This step provides the vocational expert with the background information needed to begin the assessment. It consists of reviewing documentation, a home visit, interviews, an assessment of how the plaintiff’s injuries impact his or her daily life, and research on the relative expenses of living in the area. The vocational evaluation provides a roadmap for the next step undertaken by the vocational expert – evaluating diminished earning capacity.

2. Effect on Employment

The vocational expert uses an earning capacity assessment. It helps develop recommendations on the plaintiff’s functional capacity, current work proficiencies, and readiness for work. The vocational expert undertakes to answer the following:

1. Is the plaintiff able to return to work?
2. Can they execute all the necessary functions of the job?
3. Are they able to work overtime?
4. If unable to return to their pre-injury field of work, can their existing skills and education be used in another occupation that needs fewer physical capabilities?
5. If transferrable skills are not available, what unskilled work can they perform, considering their injuries?
6. If unskilled work is available, what is the compensation?

With this information in hand, the vocational expert gathers current government labor statistics and analyzes trends in wages and benefits in the plaintiff’s occupation. They work with an economist to review all this data and determine the diminished earning capacity and discount the estimate to present value.

3. Ready for Trial or Settlement Discussions

Once the diminished earning capacity is estimated, the vocational expert prepares to answer all anticipated questions. Additionally, they put together exhibits for the trial. These include easy-to-understand demand charts and bar graphs, before and after earning capacities, and other compelling presentations. These ensure the vocational expert is ready to demonstrate to the jury how their work was performed so the jury can understand their objective testimony regarding diminished earning capacity.

Let the Experts at OAS Provide the Information You Need to Get Appropriate Compensation for Your Personal Injury Clients

The experts at OAS have over forty years of experience documenting the diminished earning capacity and other damages of those who have suffered severe physical and mental injuries. 

OAS has served as experts on many multi-million-dollar outcomes, from the backseat passenger case above to a record-setting $102 million verdict in a NY catastrophic injury case and many more in between.

We strongly believe in the importance of a clear and understandable presentation of the facts. OAS is the leading provider of vocational expert services

OAS is your vocational expert nationwide, with offices in New York, New Jersey, Connecticut, Pennsylvania, Georgia, Florida, Texas, Nevada, and California. 

To discuss your case, call us at 1-800-292-1919, contact us at a location near you, or through our online form.