Introduction by Murray Grossan
MD
When is allergy a
disability? When is asthma a cause of worker's compensation
claim and disability? Here is an article by an "expert"
to explain how these critical subjects are decided.
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More persons than ever are being declared
disabled due to asthma and allergy. For instance, a nurse
who develops a latex(rubber) allergy may be disabled. Or
a chromium worker who develops asthma as a result of this
exposure. Or a nursery worker who developed a life threatening
anaphylactic reaction to a bee sting. How these cases are
evaluated is the subject of this article by an Dr Bruce Growick
who is trained in making these evaluations.
Dr Growick is often called upon to review
the background and cause of the potential disability, and
to give legal and other testimony in these cases.
He is a consultant to insurance companies
and attorneys in these matters.
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Use
of Vocational Experts in Disability Determination
Bruce Growick, Ph.D.
The process of determining 'disability'
in America today has become clearly more complex over the
last few years. In workers' compensation, social security,
pension/disability funds, and personal injury, the medical
status of the individual alone is no longer sufficient for
determining disability. Other factors, such as an individual's
age, education, past work experience, and access to the labor
market, must now also be taken into consideration.
Broader Criteria
For many years, the medical condition represented
by the Guides for Permanent Impairment by the American Medical
Association was the sole source for determining disability.
If an individual's physical and/or mental condition was serious
enough as determined by the percentage of impairment, then
a finding of Disabled was granted. However, other factors
are now being considered relevant in determining an individual's
ability to return-to-work and whether they are disabled.
In particular, the vocational opportunities
available to an injured individual, as a function of other
factors such as age and education, must also be taken into
consideration. If a person possesses enough residual functional
capacity and work-related skills necessary to perform a job
adequately, then a determination of Not Disabled is warranted.
Likewise, if an individual after injury or illness cannot
perform any work due to their medical limitations and their
age, education, work history and available employment, then
a determination of disability is indicated.
Using the AMA Guides for Permanent Impairment
as the only criterion for disability has given way to a more
inclusive process. Disability determination is now based on
personal and social factors that affect employability as well.
This broadening of the decision-making process has been beneficial
yet difficult. It is difficult because, like any new process
that broadens its mandate, there are more factors and professionals
that need to be considered. Where the disability determination
process used to be the sole providence of the medical doctor,
now the facts and opinions of vocational experts must be considered.
Expert Interpretation
The vocational expert is a professional who
has studied and understands the relationship between the functional
limitations of illness and/or disability, and the physical
and mental demands of work. No longer is it permissible to
determine disability solely based on the percentage of impairment
as dictated by the AMA Guides. Ideally, the physical and psychological
limitations that are imposed by an accident and/or disease
must now be translated into the loss of specific vocational
opportunity. And, that vocational loss must be interpreted
in terms of the whole world of work per the U.S. Department
of Labor, the availability of jobs within different geographic
areas, and the average wage that those jobs command.
The vocational expert is the professional who
is retained to provide such information to the court. They
are usually asked to provide an opinion on the overall employability
of the individual, taking into account not only their physical
and psychological limitations, but also their age, education
and past relevant work. These latter factors are tremendously
important to the overall employability of the individual being
considered for permanent and total disability.
Historically, the Federal Social Security Administration
was the first entity to consider these other factors in their
disability determination process, and to use the vocational
expert. The Social Security Administration requires that in
making a determination of disability a vocational expert is
necessary to provide an opinion on the nature of a person's
past work, and their ability to perform it or any other work
in substantial numbers in a certain geographical area. The
vocational expert describes a person's work history according
to skill and exertional level per the Dictionary of Occupational
Titles, and provides an opinion on whether the individual,
given the functional limitations of the medical condition,
can perform the essential functions of a job adequately. Furthermore,
the vocational expert needs to articulate whether a substantial
number of those jobs exist in the national economy.
In Workers' Compensation in my state, the vocational
expert is used on a regular basis in a similar manner. The
Stephenson decision by the Ohio State Supreme Court in the
1980's mandated that the Ohio Industrial Commission must consider
an individual's personal and social factors in determining
permanency and totality of disability. As a result, the Industrial
Commission uses the vocational expert not only to define past
relevant work according to skill and exertion, but also to
indicate which jobs an individual can perform given their
functional limitations, age, education, and work experience.
The decisions of the Industrial Commission in workers' compensation
in Ohio are now considered more fair and equitable.
Interestingly, but not surprisingly, pension
and disability funds have also begun to use the vocational
expert to assist in the process of determining extent of disability.
Currently, the Ohio Police and Firemen's Pension and Disability
Fund uses the vocational expert, in conjunction with medical
advisors, to help in determining the vocational affect of
disability for its members who apply for disability retirement.
It appears that a fairer and more prudent disability rating
is achieved when the vocational factors, as well as the medical
aspects of an individual, are considered.
Civil Litigation
In the context of civil tort proceedings, such
as personal injury, medical malpractice, or product liability,
the vocational expert is also being used more often. In this
venue, the vocational expert is being asked not only to provide
an opinion on the availability of jobs for an individual with
a disability or illness, but also on the affects of the disability
on lifetime earning capacity. The concept of 'loss of earning
capacity' is very important in civil proceedings because it
helps to quantify the extent of the disability, and places
a dollar amount on the projected loss. In this situation,
the vocational expert indicates which jobs an individual can
perform, and what they can earn doing it. The loss of earning
capacity is a function of what jobs a person can do, and what
they can earn over their working life. Vocational experts
provide a very useful purpose to the court because they demonstrate
the relationship between an individual's residual abilities,
the world of work (i.e., employability), and earning capacity.
The role of the vocational expert in the legal
arena over the last few years has increased as attorneys realize
that the vocational expert can help bridge the gap between
medical limitations, and the physical and mental requirements
of work. The vocational expert helps to determine what jobs
an individual can perform, how many of those jobs exist, and
what they pay. In fact, at my university, more of our coursework
in the field of rehabilitation covers the role and functions
of the vocational expert in litigation, and more of our graduates
are becoming employed in this area. The scope of practice
and the acceptance of the vocational expert in the courts
will certainly increase as lawyers continue to use us for
assisting in the process of disability determination.
Contact Dr. Growick at growick.1@osu.edu
First Published: September, 2002
Updated: September 2003
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