A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management

 

How To Do It: Articles, Interviews &
Practice Tips

Articles emphasizing practical knowledge you can't find in practice guides

People Who Made A Difference
Profiles of people who changed workers’ compensation law.

• The Honorable Mervin N. Glow
• Jettie Pierce Selvig, Esq
• Barry J. Williams, Esq.
• Melissa C. Brown, Esq.
• William A. Herreras, Esq.

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Letters to the Editors

Meet the Editors
• Warren Schneider
• Marjory Harris


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HARRIS: Rob, you are retained by both sides of the
bar as an expert witness in civil and workers’
compensation cases, to examine issues of
employability and diminished earning capacity.
How did you get into this line of work?


COTTLE: In 1984, I was providing vocational
rehabilitation services to an injured worker who had
a third party case for which he was being represented
by an associate of Mr. Melvin Belli. As a result of my
work on that case I was recommended to Mr. Belli to
provide vocational testimony in Superior Court as to
one of Mr. Belli’s client’s employability and his
diminished earnings capacity. The case involved a
PG&E lineman who had a medical malpractice suit
stemming from a botched surgery resulting in him
loosing his employment. A very large jury verdict for
the plaintiff was awarded. That exposure launched
my career as a vocational expert.


 
American Board of Vocational Experts (ABVE)
is a professional credentialing body whose Diplomates and Fellows have academic preparation in several disciplines (rehabilitation, psychology, economics and various aligned disciplines) and in assessment, counseling and consulting.

HARRIS: Many of us know you as a Le Boeuf
expert. Now you are also doing diminished future
earning capacity (DFEC) analysis under the new
Labor Code §4660. What has been your experience
so far with this new approach to rating permanent
disability?


COTTLE: Truthfully, my experiences have been mixed.
We are all trying to feel our way through this new law
and are trying to see what the WCAB judges are
going to do with the numeric value a vocational
expert comes up with. My first two cases, after
issuing my report, were referred back by the judge to
the rater for re-rating. I have the sense the judge did
not want to have to make a decision and wanted to
encourage a settlement. With the cases being rated
again, the parties did reach a settlement. More
recently, my analysis seems to be a vehicle through
which the parties begin serious settlement
negotiations, agreeing to a compromise between the
AMA rating and the numeric value I have reached.
Only one of my cases so far has actually proceeded
to trial. I am eagerly awaiting the outcome of the
judge’s determination for the AMA rating in that case
was only 11% for this injured union apprentice and
my DFEC rating was 26% after taking into
consideration this gentleman’s reduced work life
given his apprentice hourly wages. However, when I
considered his earning capacity as a journeyman,
given his union contract wage and union benefits as
a journeyman he had a 65.2% DFEC. This I felt was
his true loss of earning capacity.


 
To learn more about diminished future earning capacity [DFEC] analysis under the new Labor Code §4660, click here.

HARRIS: What methods do you use to analyze
DFEC under the new rating system and in particular
what computer program?


COTTLE: As in a personal injury case, I look both at
the individual’s earnings immediately prior to the
time of injury and their realistic earning capacity had
there been no injury; and now their subsequent
earning capacity as a result of their work limitations
and possible reduced work life. My methodology
includes performing a transferable skills analysis
(TSA) to aid in identifying pre-injury and post-injury
vocational options consistent with the individual’s
education, work history and work limitations. Once I
have identified vocational occupations compatible
with the individual’s transferable skills and work
limitations, I determine the current wages for the
occupation or group of occupations compatible with
the individual's current work capacity. I utilize the
SkillTRAN Pre/Post Injury program to aid in my initial
TSA. I then apply my professional experience as a
vocational rehabilitation counselor to realistically
select occupations which exist and for which the
individual can compete, procure and retain beyond
a probationary period of employment. I apply the
wages for those occupations to the Stepwise
Estimate of Diminished Earning Capacity (SEDEC)
method to reach a numeric value for diminished
earning capacity. I prefer the SEDEC method, for as
the Labor Code requires, it provides a numeric
formula based upon empirical data and it allows me
to find the aggregate average percentage of long-
term loss of income resulting from the injury, and
SEDEC is logical and simple to apply.


 
“The formal transferable skills analysis (TSA) process used by vocational evaluators consists of compiling occupations from the U.S. Department of Labor's Dictionary of Occupational Titles (DOT) to represent a person's work history, and analyzing the work activities (Work Fields) a person has performed in the previous jobs, along with the objects upon which the work activities were performed (Materials, Products, Subject Matter, and Services, or MPSMS). These data are then used to identify a set of occupations that a worker should be able to perform. If the worker has been injured or otherwise disabled, their residual functional capacities can also be considered by adjusting the worker traits associated with their DOT work history.”

For Robert Hall’s article, “Determining Diminished Earning Capacity in the California Workers' Compensations Program: The "SEDEC" Method,” click here.


HARRIS: We are getting some reports from
vocational experts that talk about the existence of
jobs in the labor market for which our clients may
qualify but which we believe they could not retain if
hired. Does this have anything to do with your
analysis of DFEC?


COTTLE: Yes. If an injured worker is unable to retain
the job they procured they will experience a reduced
work life which must be factored into the DFEC. The
greater the number of times an individual changes
jobs and careers, generally the longer the periods
of unemployment between jobs for employers are
reluctant to hire individuals with too many or too long
of employment gaps in their work history. If the job
applicant is older, it is even more problematic if they
have too many changes in their employment. So if an
injured worker is unable to retain a job because of
their work preclusions, the DFEC should factor in a
reduced work life to reflect the individual’s broken
periods of employment and the fact that the next
position they accept may pay even a lower wage
because of their less desirable work history.


 
 

HARRIS: What do you do with a worker who,
before the injury, was capable of various types of
employment, despite not knowing English or having
a poor educational background, but now is very
limited by the work-related disability? Do you
apportion out the fact the worker does not know
English, or lacks a GED?

COTTLE: It is possible to show a percentage for the
range of occupations which require minimally a high
school education or the equivalent of a GED. For
example, 90% of the jobs require the equivalent of
high school reasoning, language and math skills.
What I try to do through labor market research is
identify specific occupations for which, as an
example, a monolingual Spanish speaking individual
would qualify (for example, a Spanish-speaking
Pre-Needs Sales Representative for a cemetery),
but for their physical work preclusions they are now
not able to perform the work. Rather then cite
statistics, which I would question as to their
reliability, I would acknowledge the fact the injured
worker would have reduced employment
opportunities, but give factual examples of jobs they
could do in spite of their education and/or limited
English language skills, but for which they can no
longer perform because of their injuries.


 
 

HARRIS: I frequently hear that DFEC should not be
used on workers who make minimum wage or low
hourly rates but that it is for those who earn above
$10.00 per hour, or some such figure. What is your
view of the earnings floor – is there one?


COTTLE: I don’t believe you should arbitrarily
establish a fixed minimum hourly wage by which to
determine if an individual should be evaluated for a
potential diminished earning capacity. Each referral
needs to be assessed on the case’s own merits.

For example, take the 23 year old UC Berkeley Civil
Engineering student who was helping put himself
through school working nights and weekends in
security, earning $9.50 an hour. We would all agree
his wage at the time of injury was not his earning
capacity. His career plans were to work with his
father who is a civil engineer and owns his company.
This client suffered very severe injuries resulting in a
5 level spinal fusion. Between his physical limitations
resulting from his failed spinal surgery and his heavy
reliance upon narcotic medications for chronic pain,
he will not be able to work as a civil engineer. In
calculating his future work capacity I feel he will
suffer a reduced work life in addition to a DFEC. His
DFEC could come to over 60% or higher depending
upon a set of different factors. I would hate to think if
the legal community sets a minimum earnings
threshold for evaluating cases, how some individuals
would only be evaluated based upon the AMA Guides
which reflects impairment and not work disability
which impacts earning capacity.


 
 

HARRIS: We’ve talked about a few of the problems
we have been seeing – claims of jobs that could be
obtained but not retained, low earnings, poor
education, lack of English language skills. Are there
more problems you have encountered in this new
process?


COTTLE: As we all have heard many times, the
issue of motivation often arises. Many injured
workers are not psychologically sophisticated.
Those particularly with a limited educational level,
few transferable skills to a physically appropriate
new career and now limited access for vocational
guidance and retraining, are scared, feeling “lost”
and experiencing a degree of depression. It is not a
lack of motivation; it is a combination of a lack of
services, education, awareness and support. When
one cuts benefits and services it is very difficult to
move forward.

Also, when injured workers are in chronic pain,
especially moderate to severe pain, coupled with
depression, it negatively impacts “motivation”. It also
impacts employability and competitive work performance. Worker traits impacted by such impairments include understanding and memory, concentration and persistence, social interaction,
adaptation to work tasks, work attendance,
productivity, etc. Such lack of worker traits may be
viewed as a lack of motivation, but are actually a
result of the fatiguing nature of chronic pain and
depression.

 
“When injured workers are in chronic pain, especially moderate to severe pain, coupled with depression, it negatively impacts “motivation”. It also impacts employability and competitive work performance.”

HARRIS: We are often seeing various software
programs, for example, McCroskey’s MVQS
Volcano, O*Net, SkillTRAN and OASYS to mention
a few, that vocational experts are relying upon in
reaching their conclusion as to what DFEC value or
in the case of Le Boeuf, to what percent of the
labor market an applicant has lost access. Which
software is best to rely upon?


COTTLE: Before I comment on your question “which
software is best to rely upon” for an analysis, if I may
take a second and comment on software usage in
a forensic or legal system. Using a software program
to perform a Transferable Skills Analysis (TSA) for an
injured worker is just the starting point in the
evaluation. But it is a critical point, for the software
analysis is only as good or accurate and helpful as
the database contained in the software program and
the reliability of the data inputted into the program by
the vocational expert.

The degree of transferability of skills ranges from
very close similarities to remote and incidental
similarities. Often times, when entering into the
database an injured worker’s physical limitations,
there is not a match between the strength factors for
a job, the SVP, Work Fields, MPSMS and the
description provided by the physician, the FCE
and/or the injured worker. So the database must be
manipulated by the vocational expert. Such
manipulation leaves a lot of room for subjective
interpretation and input error.

If you are looking for the best software program to
rely upon, keep in mind vocational experts are
currently in a dilemma about transferable skills
analysis because the Department of Labor (DOL) is
transitioning from the Dictionary of Occupational
Titles (DOT) to the new Occupational Information
Network (O*Net) system. The DOL is no longer
updating the DOT and will in the future promote the
O*Net as a replacement for the DOT for career
exploration and workforce investment determination.
The O*Net is still being developed with the goal of
annually increasing the database by around 100
new titles. The validity and reliability of the O*Net
data is yet to be determined and therefore should
not be relied upon in forensic cases and
adjudication of disability.

Meanwhile, the SSA has determined and an
examination of O*Net by forensic vocational experts
has determined use of the O*Net is not suitable for
disability adjudication and vocational forensic use.
Although the DOT is outdated, the SSA definition of
skills transferability remains defensible and relevant
today. So any TSA software program utilized today
for disability adjudication should, in my opinion,
utilize the DOT.

Rather then select a vocational expert or rely upon
a vocational expert’s opinion solely because they
use specific software, I recommend you rely upon a
vocational expert who starts their TSA with the use
of the DOT, for it has the longevity (1930) and
defensible depth required by the courts. The
vocational expert needs to then carefully analyze
the DOT tasks and worker characteristics to assure
they are still relevant. The vocational expert should
use the proper method for TSA, for example, Work
Fields, Specific Vocational Preparation (SVP) and
MPSMS for these taxonomies best fit the SSA
definition of transferable skills. This is the generally
accepted and the current industry standard of
practice.

Remember, no computer program or system will
ever replace the scrutiny of an experienced, knowledgeable vocational professional.

 
“If you are looking for the best software program to rely upon, keep in mind vocational experts are currently in a dilemma about transferable skills analysis because the Department of Labor (DOL) is transitioning from the Dictionary of Occupational Titles (DOT) to the new Occupational Information Network (O*Net) system.”

Transferable Skills Analysis and Vocational Information During a Time of Transition


HARRIS: Are each of the specific software programs utilized by vocational experts alike in
their methodology and reliability?


COTTLE: A recent study investigated different ways
in which TSA can be conducted utilizing the
McCroskey MVQS Volcano, OASYS and SkillTRAN
software programs. A total of 129 different
occupations were identified by the three software
programs. The study revealed considerable
similarity
in the output generated by the OASYS and
SkillTRAN programs. The McCroskey MVQS output
was quite different from the other two programs. Of
the 129 total occupations identified by the three
software programs only 8 occupations were identified
by each of the 3 software programs MVQS, OASYS
and SkillTRAN. This came to a 6.20% agreement
amongst the 3 software programs on occupational
selection amongst the 129 occupations identified
in the study.

So when it comes to which software is more reliable
or valid, the research study did not provide an
answer. Remember, transferable skills analysis
software only provides suggestions for vocational
consideration when performing vocational forensic
examinations. The benefit of utilizing TSA software
is the fact they allow the vocational expert to take
many more variables into consideration and perform
an analysis more quickly and accurately than can be
done manually.


 
Dunn, P.L., Williams, J.W., & Bast, S. (2005). Software Applications and Transferable Skills Analysis : A Comparison of Methodologies and Results. Journal of Forensic Vocational Analysis. 8, 11-19.


HARRIS: In addition to whether the applicant has
transferable skills or what percentage of the open
labor market they have access to, what other
afctors do you feel are pertinent for consideration
as to an applicant’s ability to compete in the open
labor market?


COTTLE: When employers are considering job
applicants for hire from a competitive pool of applicants, and when evaluating the new hire during
their initial probationary employment period,
employers look at issues such as: 1) the worker’s
ability to accomplish the task efficiently and
accurately within an assigned time period and
within the ability to meet the mental and physical
demands of the job; 2) the worker’s ability to perform
the work without becoming a hazard to him/herself
or to others; 3) the worker’s ability to perform the
work functions and tasks so as to not aggravate
the disability or limitations of the worker; and 4) the
worker’s ability to accept supervision and work
appropriately with the public, peers, supervisors
and management.


 
 

HARRIS: How has the Costa decision, which
came out late last year, affected your business?
Have you been inundated with requests for DFEC
analysis?


COTTLE: It has certainly had a positive impact with
respect to the number of referrals now being
received. Applicant attorneys, I believe, are feeling
they can now proceed in getting DFEC evaluations
performed with the cost for such evaluations being
paid for as a legal expense by the carrier. What I am
hearing from the attorneys I meet at the Board, there
will be many more cases being referred out to
vocational experts for DFEC opinions.


 
Costa v. Hardy Diagnostics, 71 Cal. Comp. Cases. 1797 (W.C.A.B. 2006): In this en banc decision filed December 7, 2006, the Workers' Compensation Appeals Board held, inter alia, that Labor Code §4660, as amended by SB 899, allowed parties to present rebuttal evidence to the 2005 permanent disability rating schedule and that defendants could be ordered to reimburse reasonable costs of applicant’s vocational expert, even if the WCJ does not rely on the expert’s opinion.

HARRIS: Are there any trends you have identified
that might be important for the attorneys to know
of in preparing our cases for trial?


COTTLE: I have noticed, and it is occurring with both
applicant and defense attorneys, the trend to identify
the agreed upon QRR as their vocational expert.
I suspect this occurs because at the MSC they
realize they need a vocational expert so they list the
QRR. Once that occurs, the counseling relationship between the QRR and the injured worker changes
from that of being a counselor to an expert. Our Code
of Ethics states we are not to "change roles" once a
counseling relationship has been established.
Changing roles could be raised as an ethical
concern for, in part, it could cause the injured
worker to loose trust in the counseling relationship
and profession. I would therefore recommend the
parties hire their own independent vocational experts
on Le Boeuf cases and call the QRR, if they desire,
to testify as the agreed upon QRR, as to the services
provided, the applicant's employability and other
related issues. Another option would be to have the
parties agree at the MSC that the agreed upon QRR
will serve in a similar capacity as to an AME but
addressing, obviously, only issues pertaining to
vocational feasibility and employability.


 
 


Robert Cottle, Ed.D, CDMS
is a vocational expert, certified by both the American Board of Vocational Experts and Disability Management Specialists, who testifies in Le Boeuf and DFEC cases as well as in other jurisdictions such as FEHA, ADA, and personal injury.

Robert Cottle, Ed.D.
2909 McClure Street, 1st Floor
Oakland, CA 94609
(510) 451-6009
Fax: (510) 451-6619
email: cottleco@sbcglobal.net

 
For more information,
click here.

The Vocational Expert Witness

Robert B. Cottle, Ed.D., is a vocational expert, certified by the American Board of Vocational Experts and Disability Management Specialists, who testifies in Le Boeuf, DFEC and other cases. In this interview with Marjory Harris, he explains the process he follows when evaluating employability and earning capacity.

In the first of the vocational expert series, we featured Sandra Schuster.
> AMA Guides
> The Doctor's Office: Pain
> Vocational Expert Witness
> Present Value TPD
> The Defense Perspective