From Iowa Lawyer, 2004
Cross-examining the Vocational Expert: 50 Points to Cover
Vocational consultants specialize in assessing individuals who have disabilities and assisting them in finding vocational alternatives. As a result, vocational consultants often provide testimony regarding the scope and severity of vocational disabilities, including those that may be subject to claims for monetary damages.
But what should an attorney ask a vocational consultant? When attorneys consult me, I typically suggest the following fifty points as a foundation. Naturally, I can provide more specific cross-examination suggestions after reviewing the opposing vocational consultant's report and/or deposition.
- Summarize your education and training.
- From which university program did you graduate?
- Which degrees have you earned beyond the undergraduate level?
- Was the university program that granted your highest degree accredited?
- Describe the requirements you completed to earn your highest degree. (Especially important if the program was non-traditional, i.e., not accredited, or non-residential)
- Did you complete a thesis or dissertation in order to earn your highest degree? If not, why not?
- Did you complete an internship, practicum, or other training in order to earn your highest degree?
- How long were you enrolled in your highest degree program?
- Summarize your relevant work experience as it pertains to vocational rehabilitation.
- How many years experience do you have in this field?
- Describe your experience in returning persons with disabilities or those with work-related injuries to work.
- Are you a certified rehabilitation counselor?
- How long have you been certified?
- Describe the professional activities in which you engage in order to maintain your certification and remain current in your field.
- Do you know your certification number?
- Identify the relevant professional organizations to which you belong.
- When did you last attend a relevant professional national conference?
- Which relevant professional publications do you read on a regular basis?
- Can you identify a book or resource you recently acquired for use in your practice?
- Do you volunteer your time and services on behalf of persons with disabilities? How often and how much?
- What was the topic of the last seminar or course you attended that contributed to maintaining your professional certification?
Knowledge & Judgment
- Identify anyone you had contact with to discuss this case.
- Identify the information and sources of information you accessed during your case preparation.
- Did you conduct vocational assessments or testing in the development of this case?
- Identify the tests or assessments, the manner in which they were conducted, and describe the results.
- Identify the medical and/or psychological reports you familiarized yourself with in order to prepare this case.
- Describe how you determined a residual functional capacity in this case.
- Describe the resources and sources of information you used in forming your opinion.
- How would you define transferable work skills analysis?
- Is there a distinction between worker traits and worker skills? If so, please explain that distinction.
- Does the claimant possess any transferable skills? If so, what are they?
- Do jobs exist in the claimant's geographical area within his/her residual functional capacities?
- List the job titles the claimant would be able to perform. If none, please explain why.
- Did you utilize survey data in your case preparation? If so, which surveys and how current is the information?
- Did you conduct your own labor market survey? If so, how many employers did you contact?
- Did you conduct an on-site job analysis? If so, please describe how you went about it.
- Has the claimant experienced a loss of labor market access?
- How did you determine the difference between pre-injury and post-injury employability?
- Explain the concept of vocational disability.
- Is it possible to determine an individual's disability rating in terms of percentage points? If so, how would you go about doing so? If not, why not?
- What is the difference between pre-injury and post-injury earning capacity?
- What is the distinction between lost earnings and lost earnings capacity?
- How would you calculate a loss of earnings capacity?
- How do you determine the number of years remaining in one's work life?
- Which professional ethical code do you subscribe to?
- Please summarize the content of this code.
- Describe the resources you employed during your involvement in this case.
- Did you make use of computer programs in the development of this case? Which computer programs?
- Can you describe how this/these computer program/s process data?
- Can you describe the source of the data used in this/these computer program/s?
It behooves an attorney to understand the vocational evaluation process, and how that understanding can be applied to challenge a vocational consultant. The following list — although not exhaustive, offers many of the resources commonly used by vocational consultants.
Dictionary of Occupational Titles — DOT (1991)
Department of Labor publication listing 12, 741 job titles.
The Occupational Information Network (O*NET)
O*NET™ is replacing the Dictionary of Occupational Titles (DOT) as the nation's primary source of occupational information. O*NET is administered and sponsored by the U.S. Department of Labor's Employment and Training Administration.
U.S. Department of Labor Bureau of Labor Statistics
Occupational Outlook Handbook 2002-2003
A nationally recognized source of career information. Revised every two years, the Handbook describes what workers do on the job, working conditions, training and education needed, earnings, and expected job prospects for a wide range of occupations. Also available online: http://www.bls.gov/oco/
America's Job Bank
One of the most comprehensive websites for occupational exploration and job searches.
U.S. Census Bureau
Iowa Workforce Development
Social Security Administration
Asenjo, B. (2003). Vocational expert testimony can be challenged effectively in damage cases. Iowa Lawyer, March, pp. 16-17.
Deutsch, P. (1990). A Guide to Rehabilitation Testimony: The Expert's Role as an Educator. PMD Press.
Weed, R. & Field, T. (2001). Rehabilitation Consultant's Handbook (Revised). Elliott & Fitzpatrick.
Bill Asenjo, Ph.D., C.R.C., is a vocational consultant based in Iowa City. A certified rehabilitation counselor and vocational consultant since 1994, Bill received his Ph.D. from the University of Iowa's Rehabilitation Counseling Program. Bill is also a brain tumor survivor. Contact Bill by visiting his site (www.billasenjo.com); email (firstname.lastname@example.org); or phone (319-351-1528).
© 2004 by Bill Asenjo