Index:

• Vocational Evaluation in Family Law Cases
• Sample Report
• Testimonial for the Iowa State Bar Association's Family Law Seminar

Vocational Evaluation in Family Law Cases

Bill Asenjo, PhD, CRC
Vocational Consultant

As the need for information supporting requests for Alimony and Child Support increases, so does the need for assessment of earning capacity and vocational potential. Determining a spouse's earning ability can pose a difficult and complex dilemma. A spouse may be out of work by mutual agreement, e.g., health reasons or raising children, or may be unemployed involuntarily, e.g., job change or downsizing. When issues arise regarding support of the spouse or children, determining the earning capacity for which either spouse should be responsible becomes a critical issue.

In such cases a Vocational Expert (VE) may provide a vocational evaluation (also known as an employability or spousal rehabilitation assessment). A VE will determine the highest level of vocational functioning, the ability to make a financial contribution, and the need for further training or education. The VE may provide professional evaluations, testimony and opinions regarding the vocational aspects of a case. Once these evaluations have been completed, the VE determines what a party "should" or "could" earn. The court is then asked to hold the individual to that earning capacity. These questions often arise during a divorce action or may be revisited post-divorce due to a change in circumstances. A vocational evaluation may be requested for, or by, either party to identify careers compatible with that individual's training, skills, experience, and education.

WHY ASK FOR A VOCATIONAL EVALUATION?

Vocational Experts may serve as excellent resources regarding:

• Vocational/job skill requirements and transferability issues;
• Re-training or educational transition requirements in today's job market;
• Effects of injury or illness on the ability to work and on earning capacity;
• Requirements and restrictions for various types of work;
• National and local labor market trends and statistics

WHO ASKS FOR A VOCATIONAL EVALUATION?

A vocational evaluation may be requested at any point in the divorce process to:

• Assist with settlement efforts
• Assist with trial strategy
• Assess the type or extent of alimony/spousal support warranted

Either spouse, depending on the circumstances, may request a vocational evaluation. The judge may order a vocational evaluation if a question exists regarding either party's income potential or capacity for employment.

Vocational testing could be appropriate in cases involving:

• The unemployed
• The under-employed
• Career-changers at any age
• New workers
• Down-sized workers
• Disabled individuals
• Students and adult children

THE PROCESS

The process usually begins when the attorney retains a VE to conduct a vocational evaluation. Information of interest to a VE includes:

• Educational and training history — dates, locations, degrees, certifications, licenses.
• Current and former employment history — dates, locations, employers' name, job titles, requirements, wage rates, job descriptions.
• Medical and psychological problems or restrictions — dates, related pain or discomfort. This information may be analyzed relative to the individual's ability to engage in the physical, mental, or social aspects of employment.
• Medications, treatments and side effects
• Family and marital relationships — living arrangements
• Ability to engage in physical activities (walking, lifting, carrying, standing, sitting, pushing/pulling, and bending)
• Ability to engage in non-physical activities (concentration, memory, social interaction, family interaction, public interaction, following instructions, other thinking skills).
• Former and current hobbies, sports, interests, social activities.
• Future goals and plans — career, education, employment.
• Financial documents, tax filings, personnel files, educational documents, and other relevant background information may be requested or provided to the expert.

For most evaluations the VE will want to interview the individual. Prior to the interview a VE may send a questionnaire covering such topics as work history, educational background, and daily living activities. After a review of this documentation, the interview and remaining steps in the evaluation take place. Vocational testing may be conducted to determine aptitude, vocational interests, etc. After testing the expert will interpret the data and provide a vocational analysis addressing career options, job market information, and recommended actions. Job search strategies and sample employment opportunities may also be assessed. At this point the expert will likely discuss his or her opinions with the retaining attorney; a written report can be provided if requested. Further consultation and expert witness testimony can also be provided.

The specific format may be adapted to the individual case, ranging from a single-session vocational interview to a multi-session assessment.

FINDING A VOCATIONAL EXPERT

Resources for locating a vocational expert include colleagues who practice in the field of workers compensation, personal injury, or general tort law — vocational experts are often retained as experts in these fields. Before selecting an expert, consult with attorneys who retain such experts and who are familiar with resources in your area. This gives you the opportunity to discuss the particular expert's skills, methods, and most importantly, their potential biases, with practitioners who may be more familiar with the right questions to ask.

QUESTIONS FOR THE VOCATIONAL EXPERT

What should an attorney ask a vocational consultant? Consider the following fifty points as a foundation for questioning this type of expert. Naturally, most VEs could provide more specific cross-examination suggestions after reviewing the opposing vocational consultant's report and/or deposition.

Education/Training

• 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?

Work Experience

• 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.
• dentify 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?

Ethics

• Which professional ethical code do you subscribe to?
• Please summarize the content of this code.

Resources

• 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?

RESOURCES

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 a selection of resources commonly utilized by vocational consultants.

• Dictionary of Occupational Titles — DOT (1991)
  Department of Labor publication listing 12, 741 job titles.
• The Occupational Information Network (O*NET) — http://online.onetcenter.org/ — O*NETT 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 — http://bls.gov/
• Occupational Outlook Handbook — http://www.bls.gov/oco/ — 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.
• U.S. Census Bureau — http://www.census.gov/
• Social Security Administration — http://www.ssa.gov
• FedStats — http://www.fedstats.gov

CONCLUSION

In summary, a vocational expert can be invaluable in cases concerning earning capacity or vocational potential issues.

SAMPLE REPORT

Bill Asenjo, PhD, CRC

Vocational Consultant

www.billasenjo.com
319-351-1528
basenjo@avalon.net

June 27, 2005

Retaining Attorney
XXXXX & XXXXX
XXX St., Ste. XXX
POB XXX
Chicago, IL

Re: XXXX

VOCATIONAL REHABILITATION ASSESSMENT

INDEX
Introduction
Medical
Vocational/Educational/Social Information
Labor Market Survey & Earning Capacity
Transferability of Skills
Employability vs Placeability
Impressions
Summary & Recommendations
Sources

OPINION SUMMARY

XXXX is a 56 year-old female with limited education, work experience and training. Due to a recent injury she is presently unemployable in her most recent job description, and with the exception of minimum wage employment, is not employable in other occupations unless she receives training and/or education.

INTRODUCTION

I reviewed XXXX 's file for the purpose of completing a vocational rehabilitation assessment. This report is based on the provided information at this time and may be amended if additional information becomes available.

XXXX had been employed as a Certified Nursing Assistant when she sustained injuries to her neck on, or about, February 9, 2004 and July 12, 2004. In addition to reviewing the provided records, I interviewed XXXX on June 7, 2005.

Thus far I have reviewed documents from the following sources:

• Metro MRI Center
• Quad City Neurosurgical Associates
• Work Fitness Center
• Genesis Medical Center
• Trinity Medical Center
• Radiology Group
• Community Health Care
• Genesis First Med
• St. Luke's Hospital
• Mercy Hospital

MEDICAL

In her notes of 7/12/04 Dr. Jennifer Aanestad of the Work Fitness Center wrote, "The patient was assisting a resident while she was showing (sic) when the resident became angry or agitated and grabbed her left arm twisting the entire arm medially and then pulling it...Of note, patient did have a cervical strain in February of 2004. She was MMI on March 1, 2004.The patient was placed on.Work restrictions with no use of left arm."

Christine Deigman, MD noted on 7/13/04, "Cervical strain with radicular symptoms on the left.Restrictions are no patient transfers, maximum lift of 5 lbs., no above shoulder work or far reaching on the left."

On 8/25/04 Dr. Deigman noted, "Patient states that Dr. Ridenour told her she needs a cervical fusion. She was very upset to hear that.I spent more than 15 minutes with the patient, more than half of which was spent in counseling."

In his correspondence to Jessica Kemp, RN of Bass & Babb Co., Todd Ridenour, MD wrote, "She does indeed have cervical spondylosis and degenerative changes extending from C4-C5 through C6-C7."

According to XXXX , she underwent the recommended surgery performed by Dr. Ridenhour on 11/12/04.

XXXX stated that in spite of the surgery and the medications she takes, she continues to experience chronic debilitating pain. Since money is an issue, e.g., XXXX has to choose whether to buy her prescribed asthma or hypertension medication since she cannot afford both, she relies on over-the-counter pain medication rather than prescribed pain medication.

A smoker for over 30 years, XXXX 's medical history is remarkable for asthma, bronchitis, emphysema and hypertension.

VOCATIONAL/EDUCATIONAL/SOCIAL INFORMATION

XXXX was born on May 8, 1949. Although she dropped out of high school, she did complete a GED. XXXX denied military service. At 56 years of age XXXX has worked most recently as a Certified Nursing Assistant, preceded by employment as a receptionist and secretary. When asked why she did not opt to return to secretarial work, XXXX stated that she is unfamiliar with the technology required of secretaries in today's labor market. In addition, XXXX stated that she likes working in the medical field.

According to XXXX , Dr. Ridenour had told her it was okay to return to work. She reported that she currently works light duty, and that at the time of her injuries she earned $11.40 per hour. Her current schedule entails working 34 hours one week, followed by 37 hours the following week.

LABOR MARKET SURVEY & LOSS OF EARNING CAPACITY

Considering XXXX's lack of education beyond high school, along with a limited work history as well as physical work restrictions, it is not surprising that a survey of the labor market in her geographic locale revealed that she is only capable of being employed at, or barely more than, minimum wage.

Data regarding XXXX 's most recent employment and earning capacity is represented by the following.

Certified Nursing Assistant

Description: Provides basic patient care under direction of nursing staff. Perform duties, such as feed, bathe, dress, groom, or move patients, or change linens.

Source: Bureau of Labor Statistics, Occupational Employment Statistics Survey; Iowa Workforce Development, Labor Market Information

¹  Job Openings refers to the average annual job openings due to growth and net replacement.

Source: Bureau of Labor Statistics, Office of Occupational Statistics and Employment Projections; Illinois Department of Employment Security; Iowa Workforce Development, Labor Market Information

TRANSFERABILITY OF SKILLS

In view of XXXX 's employment history and physical restrictions, a reasonable transfer of skills to similar occupations generating comparable income include the following:

• Medical Assistant
• Medical Records and Health Information Technician
• Medical Transcription

Medical Assistant

Description: Medical assistants perform routine administrative and clinical tasks to keep physicians' offices running smoothly. Duties vary from office to office, depending on office location, size, and specialty. Most employers prefer graduates of formal programs in medical assisting. Such programs are offered in vocational-technical high schools, postsecondary vocational schools, community and junior colleges. Postsecondary programs usually last either a year, resulting in a certificate or diploma, or 2 years, resulting in an associate degree. Accredited programs include an internship that provides practical experience in physicians' offices, hospitals, or other healthcare facilities.

Source: U.S. Dept. of Labor — Occupational Outlook Handbook [2002-2003].

Source: Bureau of Labor Statistics, Occupational Employment Statistics Survey; Iowa Workforce Development, Labor Market Information

¹  Job Openings refers to the average annual job openings due to growth and net replacement.

Source: Bureau of Labor Statistics, Office of Occupational Statistics and Employment Projections; Illinois Department of Employment Security; Iowa Workforce Development, Labor Market Information

Medical Records and Health Information Technicians

Description: Compile, process, and maintain medical records of hospital and clinic patients in a manner consistent with medical, administrative, ethical, legal, and regulatory requirements of the heath care system. Process, maintain, compile, and report patient information for health requirements and standards.

Most employers prefer graduates of formal programs in health information technology. Such programs are offered in vocational-technical high schools, postsecondary vocational schools, community and junior colleges.

Source: U.S. Dept. of Labor — Occupational Outlook Handbook [2002-2003].

Source: Bureau of Labor Statistics, Occupational Employment Statistics Survey; Iowa Workforce Development, Labor Market Information

¹  Job Openings refers to the average annual job openings due to growth and net replacement.

Source: Bureau of Labor Statistics, Office of Occupational Statistics and Employment Projections; Illinois Department of Employment Security; Iowa Workforce Development, Labor Market Information

Medical Transcriptionists

Description: Medical transcriptionists use transcribing machines with headset and foot pedal to listen to recordings by physicians and other healthcare professionals dictating a variety of medical reports. They transcribe dictated reports and translate medical jargon and abbreviations into their expanded forms. Medical transcriptionists edit and return reports in either printed or electronic form to the dictator for review, signature, or correction.

Most employers prefer graduates of formal programs in medical transcription. Such programs are offered in vocational-technical high schools, postsecondary vocational schools, community and junior colleges.

Source: U.S. Dept. of Labor — Occupational Outlook Handbook [2002-2003].

Source: Bureau of Labor Statistics, Occupational Employment Statistics Survey; Iowa Workforce Development, Labor Market Information

Source: Bureau of Labor Statistics, Occupational Employment Statistics Survey; Iowa Workforce Development, Labor Market Information

¹  Job Openings refers to the average annual job openings due to growth and net replacement.

Source: Bureau of Labor Statistics, Office of Occupational Statistics and Employment Projections; Illinois Department of Employment Security; Iowa Workforce Development, Labor Market Information

Summary:

Labor market research reveals that in order for XXXX to earn a wage in a related occupation comparable to her current wage level of $11.40 per hour (representing the upper 20% of the Iowa labor market for certified nursing assistants), will require additional education and training as previously described.

EMPLOYABILITY vs PLACEABILITY

In 1998, the National Organization on Disability surveyed 1,000 American adults with disabilities and found that only 29 percent of adults with disabilities, ages 18-64 years, worked full or part-time, compared with 79 percent of the non-disabled population (Stodden, 2000). When, and if, an individual with a disability is able to find employment for which they qualify, there remains yet another barrier to employment — employer attitude towards hiring someone with a disability, i.e., the prospective employee's "placeability". Unfortunately, identifying and addressing negative employer attitudes are difficult tasks (Paul, et al., 2003).

In fact, recent data from the U.S. Equal Employment Opportunity Commission (EEOC) revealed that allegations of discrimination based on age and disability against private employers are conspicuously increasing (Coyle, 2002; EEOC; Wiscombe, 2002).

Such attitudes are perpetuated by myths regarding people with disabilities, by ineffective job placement methods, and by hiring procedures designed to prevent hiring potential employees deemed high risks (Ash, P. & Goldstein, S., 1995; Gilbride, D., Stensurd, R., Ehlers, C., Evans, E. & Peterson, C., 2000; Kregel & Unger, 1993; Tate, 1992a; Tate, 1992b).

The most significant predictors of return-to-work (RTW) are education, age, and time elapsed from injury to referral for vocational rehabilitation. Typically, less education translates to fewer transferable skills to other employment. Studies indicate that individuals over the age of 50, who have little education, and who have experienced a protracted delay in receiving vocational rehabilitation services are least likely to return to work (Blackwell, T., Leierer, S., Haupt, S., & Kampotsis, A., 2003; Gardner, 1991).

Moreover, the longer one remains unemployed due to disability the less likely they are to be successfully returned to work (Gardner,1991; Weed & Field, 2001). According to Carbine, et al. (1989):

• 50% of injured workers out of work for 6 months never return to work
• 90% of injured workers out of work for 12 months never return to work
• 100% (rounded) of injured workers out of work for 24 months never return to work

Advancing age diminishes the possibility of making a successful vocational adjustment. Advancing age also has a significant impact on transferability of work skills. Furthermore, the Social Security Administration's Vocational Expert Handbook states on page 27 that injured workers who are ".approaching advanced age (50-54), combined with a severe impairment and limited work experience, seriously affects the claimant's ability to adapt to a significant number of jobs in the national economy."

XXXX is 56 years of age.

IMPRESSIONS

XXXX 's work-related injuries, work history limited to certified nursing assistant (for which she is no longer physically capable of performing) and secretary (for which she no longer possesses the appropriate technological skills or knowledge), and her lack of education and training leave her with very few vocational alternatives beyond those paying minimum, or near minimum, wage.

SUMMARY & RECOMMENDATIONS

A review of the provided documents and my interview with XXXX reveals that she has sustained work-related injuries to her neck, for which she has undergone surgery. Consequently, XXXX experiences chronic pain.

A survey of the labor market in XXXX 's geographic locale reveals that her disabilities pose substantial challenges to her ability to work. In addition, XXXX 's employment potential beyond her current light duty is seriously diminished due to her age (presently 56), limited work experience, lack of training, and limited education.

My professional opinions have been stated to a reasonable degree of certainty as a Certified Rehabilitation Counselor and Vocational Consultant.

Respectfully Submitted,

Bill Asenjo, PhD, CRC
Vocational Consultant
Certified Rehabilitation Counselor

SOURCES

Ash, P. & Goldstein, S. (1995). Predictors of returning to work. Bulletin of the American Academy of Psychiatry and the Law, 23, 205-210.

Bednar, J., Baeshim-Griffith, P., Osterman, A. (1998). Workers compensation: Effect of state law on treatment cost and work status. Clinical Orthopaedics and Related Research, 351, 74-77.

Blackwell, T., Leierer, S., Haupt, S., & Kampotsis, A. (2003). Predictors of vocational rehabilitation return to work outcomes in workers' compensation. Rehabilitation Counseling Bulletin, 46 (108).

Carbine, M. E., Schwartz, G. E., & Watson, S. D. (1989). Disability Intervention and Cost Management Strategies for the 1990s. Washington, D. C.: Washington Business Group on Health/Institute for Rehabilitation and Disability Management.

Coyle, M. (2002). Age bias suits stand at a crossroads. National Law Journal, 24(27), A1.

Drebing, C. (2002). Vocational rehabilitation and older adults. Journal of Rehailitation, July-September.

Finch, J. & Robinson, M. (2003). Aging and late-onset disability. Journal of Rehabilitation. 69(2), 38.

Fischler, G. & Booth, N. (1999). Vocational impact of psychiatric disorders: A guide for rehabilitation professionals. Gaithersburg, MD: Aspen.

Gardner, J. (1991). Early referral and other factors affecting vocational rehabilitation outcome for the workers' compensation client. Rehabilitation Counseling Bulletin, 34, 197-209.

Gilbride, D., Stensurd, R., Ehlers, C., Evans, E. & Peterson, C. (2000). Employers' attitudes toward hiring persons with disabilities and vocational rehabilitation services. Journal of Rehabilitation, October - December.

Havranek, J., Field, T., & Grimes, J. (2001). Vocational Assessment: Evaluating Employment Potential. 3rd Edition. Elliott & Fitzpatrick. Athens, GA.

Havranek, J. (1997). Forensic Rehabilitation: A Resource for Vocational Experts. Elliott & Fitzpatrick. Athens, GA.

Hellwege, J. (1995). Failing to accommodate depressed workers can be costly. Trial, 31 (12), 14.

Kregel, J. & Unger, D. (1993). Employer perceptions of the work potential of individuals with disabilities. Journal of Rehabilitation, 3 (4), 17-25.

Paul, H., Hunt, R. & Brodwin, M. (2003). Unemployment and underemployment of people with disabilities. Rehabilitation Professional, 11(1), 56-60.

Provine, K. (2005). Helping older workers with disabilities re-enter the workforce. Rehabilitation Professional, 13(1), 45-46.

Social Security Administration Office of Hearings & Appeals (1990). Vocational Expert Handbook. Author.

Stodden, R. (2000). Postsecondary education and employment of adults with disabilities. American Rehabilitation, 25(3), 19-20.

Tate, D. (1992a). Workers' disability and return to work. American Journal of Physical Medicine and Rehabilitation, 71 (1), 92-96.

Tate, D. (1992b). Factors influencing injured employees return to work. Journal of Applied Rehabilitation Counseling, 23 (2), 17-20.

Weed, R., & Field, T. (2001) Rehabilitation consultant's handbook. Athens, GA. Elliott & Fitzpatrick.

Wiscombe, J. (2002). Workplace bias claims rise. Workforce, 81(5), 16.

© 2009 Bill Asenjo

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