The Cross-Examination of a Vocational Expert
By Sherod H. Eadon, Jr., and Gerald Reardon with Harriet Fowler, M.Ed., CRC
Attorneys who handle Social Security and Workers' Compensation claims must be prepared to cross-examine a vocational expert. Understanding the role of a vocational expert is essential to a practitioner in order to increase a claimant's chance of collecting disability benefits. By limiting the effectiveness of an adverse vocational expert, the claimant's attorney greatly increases the client's chance of success in an administrative hearing.Likewise, many workers' compensation claimants and insurance carriers use vocational experts and medical professionals to substantiate their respective positions regarding a claimant's ability to return to work. Carriers also frequently use rehabilitation nurses and cases managers to assess a claimant's injuries, prognosis, and ability to return to work. In many cases, rehabilitation nurses and cases managers are not qualified to testify regarding a claimant's ability to return to a specific job.
Generally, the vocational testimony in a workers' compensation c case is submitted as an expert report in accordance with Regulation 67-611. To prepare for cross-examination and to investigate qualifications the adverse party's vocational expert, the claimant's attorney should request a copy of the expert's resume in order to determine if the expert is in fact a qualified vocational expert. Likewise, the claimant's attorney should review the curriculum vitae of the vocational expert scheduled to testify in their client's social security disability claim. Generally, the issue of qualification arises more frequently in the workers' compensation setting as opposed to social security hearings.
Qualifications vary for vocational experts throughout the country. South Carolina does not have any legal requirements for certification of a vocational expert. One of the most recognized guidelines for standards of practice in the vocational field is outlined by the Commission on Rehabilitation Counselor Certification (CRCC). The CRCC has noted that the rehabilitation counseling profession has required an extensive body of research based knowledge with respect to the specific competencies and job functions that are vital to a counselor's performance3. The job functions and competencies include assessing an individual's aptitudes and education, providing diagnostic descriptions of mental, emotional, and behavioral conditions, and designing treatment programs. The CRCC requires a vocational expert to be trained at a master's degree level. Completion of a master's degree in an approved program includes, in addition to counseling, medical assessment and case management course, vocational assessment/analysis, vocational and career development and job development and placement 4. Theses areas are unique to vocational rehabilitation counseling as opposed to the training of a nurse, case manager or psychologist whose training may also include medical and/or psychological testing, but may lack specific vocational/employer/career analysis training.5 Following completion of a master's degree, including a required internship, the Certified Rehabilitation Counselor exam must be passed in order to receive a CRC designation. To remain a certified rehabilitation counselor, continuing education requirements must be met as well as an adherence to the Code of Professional Ethics for Certified Rehabilitation Counselors. The Code states that "the primary obligation of rehabilitation counselors is to their clients.."6
When the practitioner doubts the competency of the adverse vocational expert, a complete cross-examination exploring qualifications should be conducted. The attorney must be aware of the applicable standards of admissibility for expert testimony set forth in State v Council, 335 S.C.1 515S.E.2d 508, and should be aware of the relaxed standard of causation discussed in Tiller v. National Health Care of Sumter, 334 S.C. 333,513
S.E. 2d 843. Within this framework, the vocational expert should be questioned about education and experience in the field of rehabilitation counseling. The expert should be asked how frequently they have placed clients in actual jobs. They should be asked how many job sites they have visited in the past year and how many different jobs they analyzed during this period. As to the specific case, the vocational expert should be questioned about his or her specific knowledge of the claimant's job. Ask if the expert met with the claimant or reviewed the claimant's job description. The vocational expert should also be asked whether he or she visited the site of the claimant's job.
In the case of the nurse practitioner or case manager masquerading as a vocational expert, the attorney should cross-examine the witness on the body of knowledge familiar to a certified rehabilitation counselor. Question the expert on his or her familiarity with the Dictionary of Occupational Titles (DOT) published by the Department of Labor. Determine if the witness can give the criteria for the functional level of work, which he or she claims your client can perform. By example, although light work involves lifting no more than 20 pounds at the time, the worker must be on his or her feet up to six hours of an eight-hour day. Similar questions may show the expert to be unqualified and result in the rejection of the expert's report. Even if the report is admitted into evidence, the weight of the adverse testimony will be greatly reduced. Once adverse vocational evidence is admitted, the claimant's attorney must be well prepared for cross-examination to limit the effectiveness of the adverse testimony. Preparation begins with knowing your case. Know the physical demands of your client's job. Obtain a copy of his or her job description from the employer. Determine the client's exertional and non-exertional impairments. Ask each treating physician to complete a physical capacities form outlining the client's permanent physical and mental limitations. Ask for duration of the client's limitations during an eight-hour workday. A physical capacities form can be obtained from any competent rehabilitation counselor.
Remember that your client is the best source of information to prepare for cross-examination. Prepare hypothetical questions, which incorporate limitations derived from the physical capacities form and from the client interview. As a cautionary note, the fact finder must be convinced that the limitation is legitimate or the effectiveness on cross-examination will be limited.
At a social security hearing, a vocational expert will evaluate a claimant's residual functional capacity and vocational profile to determine whether a claimant can perform substantial gainful work. Primarily, a vocational expert will consider age, education, prior work experience, and the alleged physical and mental impairments of the claimant to determine the claimant's ability to work. A vocational expert must assess the physical demands of a job, which are classified by the DOT in terms of exertion levels: sedentary work, light work, medium work, heavy work, and very heavy work. A vocational expert must also determine the skill level of past work (skilled, semi-skilled, or unskilled), and whether or not the claimant has any transferable skills. Skills are transferable to other jobs which have (1) the same or lesser amount of skill: (2) the same or similar tools and machines; and or (3) the same or similar work processes, materials, or services.7
The vocational expert will identify specific jobs, which he or she claims that the claimant has the residual functional capacity to perform. The trial attorney must negate this testimony through effective hypothetical questioning. Counsel should use the limitations of the claimant which appear in the medical record and which were testified to by the witnesses at the hearing. Ask the vocational expert to assume the claimant's hand and arm pain causes swelling (as documented in the medical) which in turn causes claimant to be unable to use his or her hands for one-third of the day (per FCE or claimant's testimony). Then ask the vocational expert if claimant could perform the jobs identified when unable to use his or her hands for one-third of the workday.
Frequently, a workers' compensation practitioner will encounter a situation where a doctor releases a claimant with simple restrictions on lifting. For example, the doctor concludes the claimant can lift up to twenty pounds. Based on this finding a rehabilitation nurse or case manager will often determine that a claimant can return to work without considering any other factors such as standing, walking, stooping, reaching, etc. This gives the claimant's attorney an excellent opportunity to cross-examine the vocational expert on other functional aspects of work. If the carrier's doctor has not taken into account the other requirements of the claimant's job or if a physical capacities evaluation has not been conducted, a vocational expert cannot properly assess the claimant's ability to return to work. Often vocational experts will not have an accurate description the claimant's actual jog but will rely only on the DOT description. An awareness of the specific requirements of your client's job will allow you to demonstrate that the simple fact that your client meets the lifting criteria of the job does not mean they can perform other duties. Question the vocational expert as to the other functional requirements of the job set forth in the job description. Include in the cross-examination hypothetical similar to those used in the social security setting; taking into account all the client's limitations, including pain.
Vocational testimony can be effective when presented by a qualified expert. Plaintiff's counsel should be prepared to identify adverse experts who are not qualified and should challenge their expertise. When cross-examining qualified vocational expert, council; should know the claimant's limitation, job description and understand the criteria for the category of work in question. By using this knowledge and well-crafted hypothetical questions, a plaintiff's attorney can effectively limit the weight of adverse vocational testimony.
References
9 Am J. Trial Advoc.237.
Id.
Commission on Rehabilitation Counselor Certification: The Foundation for
Rehab Education and Research.
Id.
Id.
Id.
41 Soc. Sec. Rep. Ser.679.
Published in South Carolina Trial Lawyer Bulletin, Summer 2000
South Carolina Trial Lawyers Association Web Site Address
http://www.sctla.org/
