Industry sign banking minnesota work order fast
just a quick disclaimer I'm much more
comfortable in the courtroom than I am in this room okay
something about a jury of your peers you know is not what I'm accustomed to anybody know what anniversary this year
is 2018 what happened to a hundred years ago any idea any guess yeah the Workmen's Compensation Act the first
workers comp legislation in the history of the world 1918 so this is a hundred
year anniversary for us just a little little thing I thought of kind of
relevant here prior to that all work injuries had to be litigated based on
negligence on the part of the employer if an injured worker could not prove the
employer was negligence the liability was considered their problem literally
okay sure employers had no obligation to an injured worker the thought was if you
entered a dangerous occupation you're responsible when you get hurt or you
shouldn't have been doing this kind of work that wasn't a real effective way to
handle the problems of injured people particularly railroad workers and a lot
of other you know heavy off off or longshore you know off off loaders and
people doing dangerous work where there are lots of injuries back then and so
the word comp idea emerged in around 2013 through 1918 that it you should
recall you know has has led to all of the work comp systems in the country
that that each state follows now is it considered the grand bargain give up
negligence and the burden of proof in exchange for Easy Act
to benefits services and partial compensation wait wait replacement all
right how many of you have seen an independent vocational evaluation have
one cross your desk is there anybody who hasn't ever seen or read or heard of an
IV e okay how many of you have performed an IV at least once okay pretty good
number there's about 300 QR C's registered in the state and just kind of
you know thinking myself I could identify at least 30 people that I know
who on occasion performed that kind of work activity my guess is it's probably
much more so you know start with the idea that that somewhere around 10% of
the cure C's registered may do an IV e and the rest of you at some time or
another you're gonna come across one you might be a victim of one or you might be
supported and your work enhanced by one depends on you know the dynamic okay I
think there's a lot of people that could give this presentation very likely many
of them better than I can but I just want to recognize that the way I was
taught and the way I developed my technique as an expert is is unique to
me it's based on on a reasonable foundation but there are many other ways
to do this and I don't consider anything that I'm going to tell you to be
absolute gospel if you have a better way or way you like to do it do that if it
works for you continue to do that if it doesn't work for you change it okay I
have no idea how many evaluations I've done I'm sure it's in several hundred
most of them are work comp but I've also done a lot of P I work long term
disability few Social Security Disability done divorce cases I've done
a number of discrimination cases it doesn't seem that common
they are are out there and in a variety of different federal jurisdiction cases
the federal cases are a different kind of deal from what we see in Minnesota
work comp okay just keep that in mind I'll try to talk about that a little bit
toward the end if there's time okay when I talk about independent vocational
evaluation and I'll use the term expert vocational expert and other things I'm
talking about the same thing okay my opinion expert work is not for the
thin-skinned okay you don't like getting your feelings hurt then don't put
yourself out there to do that because it will happen anytime you offer an opinion
in in a court case deliberately for that court case not as part of your case work
but for the for the court the other side basically has no rules and what they can
do to embarrass you to make you feel bad to put you off your game off your mark
to get you confused frustrated angry or anything else that they can take
advantage of they'll put guys like this character up at the front table here to
make big weird faces and distract you during the middle of your your testimony
okay anything is is fair game in in court
okay as I see it expert work is a teaching activity what you're what
you're there for is to tell and teach the judge and in some situations the
jury what they need to know to make a valid decision about whatever damages or
vocational losses or needs are involved in that that legal action so you're
telling them what vocational rehab is what vocational evaluation is how
services are or should be provided and then how you reach your opinions and
conclusions in your evaluation a lot of venues motor vehicle as well as a lot of
federal cases other personal injuries earning capacity is a huge issue loss of
earning capacity capacity is a huge issue
you have to quantify it you need numbers you can't just kind of ballpark it and
expect to be successful and and you know working in that in that capacity very
often it's more perspiration than inspiration you know the the smart
people may have an advantage but the hard working people tend to prevail in
that environment there's no fast easy convenient way to get through it and I
believe fully that I can outwork the the experts that are better trained better
educated smarter and more talented than I am okay and I think I've had a good
measure of success doing that in the past so more perspiration than
inspiration not even really good shortcuts or easy ways to do this kind
of work in some venues expert work is war okay no-holds-barred winner winner
takes the spoils they take no prisoners they offer no quarter okay it's not nice
it's not supposed to be nice somebody's life may be on the line their financial
life their future life their medical medical needs and somebody's money is on
the line you know whoever's being sued you know may have to pay substantial
awards in in some of these cases now I just came back from a seminar last week
and there were people talking about 74 million-dollar cases there was an MD who
is doing a patent infringement case on a pharmaceutical action that they they
talked about it being a billion-dollar case
okay now you know that MB is you know not in my category
those guys were charging 1500 bucks an hour
every time they you know kind of vaguely thought about the case and they had
according to what they were describing they had kind of an unlimited budget you
could imagine with them with a billion dollars on the line you know they don't
care what the expert work costs so it's war one of the rules of course is never
bring a knife to a gunfight all right you don't prepare you don't
work you don't do your research you don't make the effort to do it and do it
well you're gonna get outgunned plain plain and simple now in my mind if you
hate attorneys expert work probably is not for you you know you have to talk to
attorneys you have to spend time with them you know you have to listen to them
you know you ever met an attorney doesn't like to hear themselves talk you
know let me know okay if you love attorneys always wanted to be one you
know I dream to go into law school probably not for you okay they will
disappoint you they will abuse you they will lie to you
they will misrepresent the facts of the case and then expect you to distort your
opinion to fit what they want need they think of it as I'm paying for it you you
give me what what I need I think we all know that just doesn't work but you know
attorneys doesn't stop them from from going there time after time you want to
remember attorneys are sharks plain and simple they went to school for what
three four years to learn to become a shark to learn to lie and misrepresent
professionally how to beat witnesses up how to get people to say things they
don't want to say or didn't intend to say so keep that in mind there sharks
what does that make us sharkbait correct we're gonna know we're
these little fish that they just you know chomp on that at their leisure and
again you know they see it as war they're there to win they don't have to
be nice they don't get paid to be nice they don't make more money for
themselves or their client whomever that is by being nice okay you can also think
of of the courtroom as theater everybody has a part you play your part
the attorneys part is to be a shark your part is to survive the shark attack
okay and still teach the judge and jury what you would like them to understand
and and and learn so that your opinion is adopted in the judges or juries final
final determination yeah as I see it it's it's hard to do expert work on a
hit and miss basis okay if you only rarely do it you may do a great job but
in my experience and when you go out and talk to the national experts you know
the real big guns they all emphasize it takes practice it takes repetition it
takes you know a dedication determination if you do it well
and I think that's somewhat true in a Minnesota work comp system we have a
much softer system the rules are are kind of less rigorous it's still
somewhat a good old you know good old boy system almost good old boy or good
old girl system you know you know that from your your case work any time you go
to court you don't really get beat up by a you know by making a small mistake in
other venues you make a little mistake they drive a huge hole through it okay
you can get you disqualified from a case get your testimony your opinion thrown
out so the the judge and jury never hear it okay so
again that's big stakes you can do it on a part-time basis but if you want to be
effective and successful it takes a little more investment and dedication to
it you need to be able to support your opinion in in a forensic environment
everybody has an opinion I have a seven year old granddaughter she has an
opinion on everything she doesn't know much not yet
and you know you think of it that way it's not having the opinion that's
important it's being able to support it being able to show a rationale and again
in our system the rationale is based on the rules understanding of the statue
and some you know some clinical experience and the federal court system supporting your rationale is everything
okay if you can't articulate what theoretical perspective what methodology
what scientific evidence you bring to the activity you can be they call it
darted out of the process and so you have an attorney that's maybe spent you
know four or five six thousand dollars paying you to work up this work and if
you're found to have made a methodological error that money goes up
the window the attorney gets nothing back and the case moves on without you
okay all right vocational assessment I just want to
want to differentiate Lynne Vincent's vocational evaluator the real deal okay
anybody remember Elroy Kelly yeah great guy he was a real vocational evaluator
you should be a guy at st. Paul rehab back in the day anybody remember st.
Paul rehab it was a dedicated rehabilitation center
they had valve power equipment I can't remember his name I can see his face he
was a real vocational evaluator we have a few you know in the audience here
among the qrc ranks anyway vocational assessment ice as I see it is what we
all do when we gather data we gather testing information we do a tense
transferable skills analysis or at least we kind of do one for the purpose of
developing a plan and delivering services you know you have to develop
some job goals you look to the client you say you know what do you want to do
well they don't know so you have to start somewhere and so it's a it's a
brainstorming activity vocational assessment becomes more formal when you
want it needed to but that is different than what I'm talking about in this kind
of independent vocational evaluation so John read a definition of voc eval I
think for that for the intro yeah it's a comprehensive evaluation comprehensive
analysis everything is is included everything is considered and the
emphasis is on analyzing and evaluating to support your opinion this kind of
work is specific to the venue that you're in you all know that SSDI rules
are and their criteria are different than work comp different than motor
vehicle you know they even have different an acronym in in the field and
then federal and other kinds of personal injuries other kind of actions they all
have different different rules different goals and different ways that they work
so this kind of forensic work is specific to the venue and it's done with
the clear knowledge that the the results will lead to specific legal consequences
to the party somebody wins somebody loses there may be a split decision on
occasion but still you lose or in that part of the decision like Ray
Peterson talked about a couple years ago you know experts qrc service writers we
don't win or lose literally the attorneys do but when
you're when you're paid to be their professional their expert you want to be
a big part of that winning or or losing strategy and outcome otherwise they're
not going to use you in the future if you're not effective if your testimony
isn't meaningful if it's not pertinent well you know why would they hire you
again okay all right now just a just a hypothetical should an IV report be
short and specific to the point or should it be long and comprehensive if I
have an opinion depends yeah
depends on who you are what you like how you work and it pins on the venue that
you're in and who's hiring you who is employing you okay if an attorney
retains you they are literally employing you okay you still have impartiality
neutrality if you want to call it but you are literally working for that part
of the the court system you're not there to represent the Department of Labor and
Industry you're not there to represent you know employers or you know other
factions you're either on the defense or the or the the petitioners site I prefer
long detailed thorough reports it's just the way I work I'm OCD I you know just
cannot break that habit I know there are other people oh illustrate with Jan lo
Jan lo kind of writes general summary report cuts to the quick gets right
right to her her statement gets out of there gets it done you know sends it out
she puts I think or time into the labor market research
generating stats and that kind of thing then she does into her opinion I believe
she has a strategy for that and I understand that that strategy it works
very well for her allows her to come into court and talk about things that
the other side may not have had time to digest and evaluate and prepare a
response to that works well in Minnesota worktop I don't know if it works as well
in in motor vehicle cases and other venues it in my understanding would not
likely work well in a federal jurisdiction case okay in the federal
system you can only testify in court on the issues and the opinions and the data
that you used in your report if it's not in your report there often is a
discovery deposition involved in the federal process if it's not in your
report and it did not come out in the deposition you are not allowed to say it
in front of the jury okay if you do you risk you know having that stricken it's
a big big kerfuffle and you know can can be bad that bad for the case bad for you just for definition transferable skills
analysis and by the way this is a kind of a pet project of mine yes a I'm
defining as an acquired or is a skill acquired as a result of work activity
and available for transfer to a different job requiring similar or lower
skill level you don't have a transferable skill if your past
experience has a skill component at this level and the new job requires a skill
at this level that's not transfer ability that may be an advantage it may
be a strong you know trait or characteristic but does not fit the
definition okay things that are academic skills not
transferable skills not unless you learn to read on the job okay is reading a
transferable skill maybe if you're proof reader if you're an editor publisher if
you read copious amounts of material as a part of your job and develop that
skill as a research librarian or legal legal researcher maybe for the rest of
us reading is an academic skill personal skill basic skill not subject to
transfer ability to a new job you can persuade potentially persuade an
employer that it might be but it's not okay there's a lot other examples of is
driving a transferable skill well if you're a professional driver yeah but if
you're you know my 16 year old daughter no she got a license she drove the heck
out of the vehicle she had was not a transferable skill or god forbid does
she ever wind up in a driving occupation I'm picking her it's she she deserves it
though trust me I see a lot of transferable skills lists in reports
that I'm evaluating your reports that give me a lot of concern I can't do
justice to what I'm referring to but I've seen people refer to a high level
of motivation as a transferable skill hey I don't really think that that fits
the definition anybody's you know real definition now I understand why people
do that we all do that when we're working the case we're trying to
generate ideas we're trying to do counseling and services we're not
preparing it for a judge to make a technical determination of this person's
employability so in your case work you know you generate lots of ideas so that
you have something to look at something to start with something to work on
that's great what's important to me is to know the difference though to know
that when you great lists of ideas even if you call
them a transferable skill put that in report tell the insurer yeah we have
something to work with that's great but you need to know that when you report to
the courtroom you should not define it and describe it the same way okay it's
wrong it's professionally wrong so ethically wrong probably morally wrong
okay again there are consequences to what what we do particularly in that
environment okay we have primarily oh I had a question here for you how
important is it to distinguish between a TSA and a worker trait okay very
important it's important again to know the difference and to be able to
articulate that difference when it's appropriate okay I don't care what you
tell your clients and you know they don't understand any of what what we're
you know what we're talking about technically and how we get to these
things but when you're when you're reporting to court know the difference
we would all be better off if we were if we were more precise in our language and
our labels but you know we all have the same tendency in habits anybody gone to
an employer meeting and called it a job site analysis anyone know my the only
one okay well I've seen it I've read it in your reports okay
had a case where where over and over again in the report it it documented I'm
going to do a job analysis I did a job analysis and then the description was of
about a five-minute discussion with the employer looking at some handrails in
the nursing home making sure that you know this person could wipe down the
handrail do a little a little bit other light you know very light work now
that's all the Cure see intended to do that's all they wanted to do or needed
to do they called it a job analysis okay I understood clearly what they were
talking about what they were doing and why but
you know in court if you call that a job analysis people think of the definition
of job analysis found in Minnesota rules fifty to twenty and it you know didn't
approximate that I think we probably do similar things to that all the time okay
so we all could likely benefit from more precise language on some of these
technical definitions these things that can confuse people later okay there's basically two databases that we
have to choose from for Occupational analysis to understand a job the
requirements the expectations the demands the skills the true the specific
vocational preparation the general educational development required and
involved and discriminated in those jobs basically to deal T and the o-net yeah
you know there's there's all kinds of other variants of those on on the market
the one that comes to my mind to my mind immediately when I was drafting this was
the e dot okay everybody anybody seen the e dot I came across an evaluation
about a year ago a dot is the electronic do t-- okay and it's a private group I
don't know where they came from or or how they formed it's a private group
that was attempting to update the dictionary of Occupational titles which
you know our government can't do that but this group was going to do it
alright I found another expert using it as an
authoritative source for occupational analysis when I looked it up and I
wasn't familiar with that what the hell is this I looked it up and there's a
disclaimer you know one of the first pages on the website small print but you
know it was there and the first thing they said is we make no claim that this
this data is reliable valid or yeah useful in any other way so of
course I challenge I butted the other expert on the basis of that and a case
quickly resolved just on that that single single issue be aware that the
dictionary of Occupational titles is the authoritative source for occupational
analysis in the Minnesota workers comp system okay it's right in in 52:20
somewhere in the beginning I think it's under definitions if my memories right
now I don't know why that is you know we all know the deal T is horribly dated
virtually useless in in some job descriptions in some ways but that's why
we have the O net okay we're all entitled to our opinion but is the O net
any better okay and you know you should think about that
I'm not sure what it's better at okay it's incomplete to my knowledge it's
never been actually finished as a comprehensive database for our labor
market yeah I'll talk a little bit more about about those those two later okay
you can do an occupational analysis you can break down a job description all the
the requirements the aspects the factors involved in it manually
matter of fact a good number of us that's how we started with the old the
OT books like this jobs classification book you know
oh the Occupational Outlook Handbook jobs analysis book and you just spend
hours and days just wading through just looking for anything that you could you
know latch on to and hoping and praying that somebody didn't find a description
that was better than one that you that you picked
okay my first Social Security disability case and I was I was brought in by an
attorney it was right when the laptops came out I
had this teeny little laptop and all I had on it was Oasis okay Chuck Robo was
the rep back then some of you may have known Chuck great great guy great
character and I really didn't know how to use it but I could kind of you know I
could get a job description I could enter you know some terms and I could
get get some some job titles through it and the SSDI expert testified that my
client was employable on the basis of a job description that the judge had given
an eye pathetical and then the attorney got to take it take his turn and the
judge was really critical because the attorney didn't have a clue what he was
doing I didn't have a clue what I was doing and the they were just about to
shut the hearing down and the judge asked me another question and I said
well Your Honor my problem with your expert is she used the wrong job
description because I had been banging on my little laptop looking at it this
our client was a punch press operator well there's two skill levels in punch
press operating okay the expert their expert was using the higher skill level
that involves setup and you know some real machining type or operational type
skills my client didn't know anything like that she just knew to keep her
hands away from the punchy part and you know they hit the two control knobs at
the same time so she didn't lose her hand okay that's literally she could put
the part in take the part out hit the hit the control once I made that point
to the to the judge we talked about a little bit the judge reframed the
hypothetical asks the SSDI expert now using that description he also
interviewed the employee or the the client the applicant
and the experts said well on the basis of that no I would agree she's not
employable okay so now that we have these systems on
behind now that you know we have the computer computerized versions of all
these things there are a number of variants to pick from I use a way
ciseaux Asus is now owned by skill Tran skill Tran has other analysis software
that they market there's the mccroskey system you never
ready it has everybody seen McCroskey yeah you guys use it you've used it
since Billy Joe was in st. cloud I think probably right
Jan Lowe uses it people who liked it liked it okay I don't really understand
it but that's my my limitation and there's a there's a there's a number of
others there's a there's a program called sere I think it's a little
different focus but you know there are convenient easy to follow easy to use
computer applications that help you with the occupational analysis okay the key
to using those is you know the old garbage in garbage out you still have to
spend some time locating the correct descriptions the correct information
entering that information to get a good to get a good printout or a good result all right let's talk about the process
first thing you should you should do after or you should see after talking to
the attorney agreeing to the to the evaluation now in work comp I've never
never asked or been offered a retainer or a fee I guess retainer
you know agreement in other venues it's very common and the consensus among
experts is get the money upfront don't do a stitch of work until you have
a signed fee agreement and any retainer you require to begin your your time and
your your activity on the file and you talk to those guys and they tell stories
all day long about getting stiffed getting you know
again I can misrepresent it manipulated by attorneys that asked them to do the
work and then don't want to pay for a variety of reasons okay so records
should be the first step in the process they should send to the records in
advance ideally I'd get them a week or two and
you know ahead of the the interview the appointment time so they have time to
read them begin analyzing sorting kind of compiling that that information I am
of the mind that that we should receive anything and everything that may be
relevant okay have you ever gotten one of these referrals where the paralegal
or maybe the attorney themselves says well what do you want what do you need
and my answer is what do you got okay tell me what you have and I'll tell you
I want all of it that that could even potentially affect my analysis my
opinion and be useful in court okay they don't always like to do that for
some odd reason I don't know what what you know what the issue is but you want
everything I try to touch every page okay and you've you've seen these files
that you know or like this I don't know how many pages that is but it's a lot I
try to touch every page now if it's an EMG graph I'm not going to do anything
but touch it because I don't you know I don't know what the heck those lines
mean anyway okay I'll read the narrative though and I'll tabulate it I'll mark it
with a postie of some sort I use a ever changing sticker color system sometimes
forget what the colors were supposed to mean but you know I tab them I write
notes in the margin and I usually have a separate note sheet and I'm the the
things that really stand out and that I think are going to be important I'll
take notes on to help prompt my memory later you have to watch what you write
on the margins okay opposing counsel has a right to
review your file if you write rude comments about their evaluator or about
the independent medical examiner or about anybody else that's subject to you
know being used against you used to embarrass you used to make you
uncomfortable and affect your your testimony layer it's happened a couple
of times I had jaundice everybody know John Ness done this and associates you
know serious intense defense attorney got my file during a break quickly I
don't know how he you know there's a thick file I don't know how he zeroed in
on it but zeroed in on one piece of paper that I did not know was in my file
and it pretty much he was like okay that's a Japanese referral you know
Harry Caray he pretty much gutted me after that break okay it was
embarrassing that was a long time ago and I'll never forget what that was like
I was also underprepared at that hearing but they have the right to look at your
filing look at anything that you used or that you show up with in your in your
hand in your briefcase in court doesn't happen very often in in work comp
happens a lot more in other systems okay in the federal system anything that you
wrote is subject to discovery related to a case they don't care if it's in the
trunk of your car in your office at home in your back pocket if they think you
have it and they can can get at it you have to provide it if you don't and
you're out of the out of the process all right second step
is the interview I tend to find that about two to three hours is what I
require for a thorough diagnostic interview of an injured worker or any of
the other people that I'm evaluating now my long-term disability evaluations are
shorter some of the divorce cases are shorter to the point but for a beer case
in most Minnesota work comp cases I'll spend about three hours talking to this
person I look at it as this is my perhaps one opportunity to get all the
data all the information I need from them to understand from their
perspective what did they go through what happened why what were they doing
what were they thinking I'm step ahead of myself I think and to try to tie that
together with the records and the material that I have what I read from
the doctors the qrc the other people that are writing and providing
information about that person their case you know you can do it shorter that
works for you great I just like to spend time I like to engage in a little little
chitchat I think rapport with that person is real important people will
really if you spend a little time so I'm a little positive regard they will spill
their guts to you differently than if it's just a cold clinical you know let's
just get right to it kind of kind of conversation or interview I'm looking
for personal history you know miracle status
what were you you know what were you like growing up with your parents do
what area did you grow up in you know we're an army child where you moved all
over the country or did you you know always live in you know North Duluth and
you've never lived more than six bucks from that house you were born in okay
actually I have a sister that you know has never lived more than about a block
and a half from the house that we were born in so there are people like that
and it it says something about them about their worldview about their
the way their brain works the way their their behavior works you know
educational history obviously I always ask well okay you graduated
what are your basic skills like can you actually read I may give them I'm gonna
give them a medical report maybe their own medical report to say can you read
this do you understand it okay and typically they're like well I get the
most of it but the technical jargon well I don't get that either so that's that's
okay you want to know you know can they do their taxes if they chose to
hardly anybody seems to choose that anymore but could you if you needed and
wanted to could you balance your checkbook
does anybody balance their checkbook anymore okay I don't have a checkbook
anymore but but could you if you need and wanted to do you have that basic
elementary kind of math skill I talked to him about discipline you know were
you rebellious and immature like I was in high school okay
then you go into later education you know did they do any technical or
Community College any University College work have any other degrees any in-house
training any on-the-job type type training activity and as part of that
educational because of the times we're in I always ask about computer skill
okay if I don't put it there I might forget it later so at that time I always
go in to tell me about your computer proficiency you know are you like me
it's basically a paperweight or you know did you grow up with this technology or
did you invest time and and work in learning it as a as a later as an adult
I don't know your experience but my my experience is it's probably the number
one basic skill in our current labor market that that affects the
employability factors of anybody that's I don't know 55 and older okay I knew he would be trouble
yeah Jeff if I think about it I may ask you know I mean if they tell me my dad
was an engineer well then yeah I'll ask about that oh yeah university degree oh
you're you know what about your parent you know your mother your siblings yeah
I have a federal case where that was a big deal because this whole family was
was highly educated and he was he had been a professional athlete got a degree
but you know was one of those he was playing football that's all he wanted to
do and you know the other side was was trying to say oh he doesn't have any
ability ability you know he barely maintained his eligibility and part of
my my analysis eventually was yeah but you know playing football in a program
like that is a full-time job in addition to go into school you talk to those kind
of people you talk to an NC double-a to a college athlete and they'll tell you
that it's it's you know almost year-round the the people who want to
succeed their training and preparing year-round whether it's a requirement of
their team or not and they just don't have the time that the rest of us may
have had to study that little extra bit you know to hang around after class and
talk with other students or the professor that kind of thing so you know
in that case it was it was very relevant and I was recommending a unique
retraining program for that that person he he had been in Jurassic what's the
last Jurassic movie he had been in that movie okay whatever it does I don't I
don't really follow that and tried to make it as an actor I you know not
making enough to live in LA and he wanted to work behind the camera which
there's much more opportunity than in front he had seen it and done it and so
I was recommending a BFA program at Chapman University in
Orange County they're expensive but that information on family history was
apparently meaningful to the to the jury in that case obviously you're going to
work history you know some you know how that is sometimes it's kind of a cursory
thing sometimes you're really drill in and you want to know job title job
duties really tell me what you were doing you you decide based on the case
and your feel for the client how much you need and want in that regard at a
minimum I try to confirm you know that I'm talking about the right job right
employer that I don't have you know I'm not thinking somebody is a present punch
press operator when they were a CNC Machinist okay and a lot of times I'll
pull up the the job description from d-o-t on Oasis while I'm sitting there
with the client show them what I'm looking at say does this fit is this
what you actually did you can do work history any way you want you know I like
a chronological and just the way my simple brain works you want to talk
about ADL's activities of daily living you know what time you get up what do
you do in the morning how do you spend your day oh you haven't worked in three
years what do you do all day what are you doing with yourself you know are
they are they sitting there reading are they watching soap operas or are they
constantly chasing their chronic pain trying to find you know a moment of
relief a moment of escape a moment where they can reset so that they can tolerate
the next day okay so a lot of that I think is useful sometimes it's just kind
of being thorough and and and doing the job but I like to talk about ADL's
and then I start with medical history you know first unrelated to the issue
that we're focused on what other history do you have you know history cancer
diabetes you know how's your eyesight how's your hearing within normal normal
limits you know you want just because it's it's part of the
protocol I think you want height weight you know are you left-handed
right-handed often that's very very significant but anything like that
external to the matter that that I'm dealing with and then drill into the
medical history on the case I'm not sure a lot of our clients fully understand
what happens or what has happened what what services they've received what
their treatment has been when you asked them and they said well I had a back
surgery well what level l.l something you know I
mean you do hear that I think they may know they may know clearly but there are
times where where they don't you know I talked to them about it and then I kind
of compare what I got from them with what the records say if the records have
told me something different I've had time to review them in advance well then
I can come back and say well maybe it was the l5 s1 disk that was decompress
and they'll say yeah that sounds sounds right you want that information be
accurate okay you don't want to miss state it you don't want to make a
mistake or an error because again it's important your analysis and it's
important to your credibility in front of the judge or the or the jury
professional witnesses who get things wrong are not looked at favorably by the
finders of that okay and then I'll talk about their rehab history did you have
accuracy who was she sometimes they remember sometimes they don't okay
typically if it's active they remember I can't think of one who didn't know their
current qrc but I I know I talked to somebody just recently that could not
think of a qrc that they had worked with about a year earlier I don't think that
means anything about the qrc I think it meant something about the client and
their level of participation in their own rehab
their own rehab services and they had kind of been been absentee we talked
about what what happened what was that like you know what did you think about
it what the cure see tell you okay I try to ask if it's a permanent total
disability case oh you've been a job search for two years was your cure C
tell you about that okay I want to know is that is is you are you as qrc s
telling that person that if they just keep looking for work they'll find a job
no matter how many years it takes okay or are you telling them something
different okay are you telling them well we need to keep looking because we have
no other option if we don't there gonna be other consequences of their problems
so let's just work together keep doing what we're able I'm sorry to ask you to
do this a lot of times I'm told that the Cure C tells the the person that I don't
think you're gonna find a job but you need to keep looking for work anyway
that doesn't surprise me then concern me at all
what I would like to see in that situation is a qrc saying that in the
record okay it does on occasion bother me a little bit although I think I
understand why you may not may not want to put it out there until the right time
but on occasion that bothers me when the client says Mike you are C my placement
specialists agree I'm never gonna find a job tell me to keep looking and I look
through you know a mountain of reports and there's never a comment that even
implies that that's what the qrc is documenting that they're there taking a
stand offering an opinion making a
recommendation okay again I understand why that may not appeal to people you
know you say that in the wrong way to write or at the wrong time you get beat
up okay somebody may not like it could be the insure could be a defense
attorney could be the employees attorney okay
they all have their strategies and their schemes and we sometimes do get as
service providers trapped within that the beauty of it being of
being a vocational evaluator being a being a forensic expert is you don't
have to you know play pattycake with that stuff you're there to offer an
opinion so you just cut right through the BS and say no reason to continue
this job search this person will never find a job if that's your opinion or job
search should continue but the injured worker needs to get serious about their
obligation to participate fully and will never be successful until they they flip
that switch and actually agree to do that okay this next slide is the vram
models vocational rehabilitation assessment model it's a really nice
schematic of what we've just talked about what you're looking for in records
and in the interview okay I keep it I look at it occasionally you know I've
kind of got this internal schematic that I operate from but every once while it's
good to look at this and go oh yeah I'm not asking enough about employability
versus place ability or about job retention likelihood you know so I use
this as a refresher I think it provides a good place to just kind of kind of
look at the overall picture of what you're doing in the process here okay all right vocational testing everybody
knows about vocational testing skill testing that's the rat reading spelling
you know vocab and computational math day typically Journal bility is IQ
testing okay many variants of that that stuff's easy
to find all over the Internet interest is an inventory or a survey I
don't see it as an actual evaluative activity you know you're not really
measuring things within with an pattern you're describing and surveying
their preferences their likes and dislikes
by the way interest in my mind is something that should be changing as a
part of the vocational rehabilitation process okay the route of rehab is rehabilitate it prevents you from doing
the things that you had done previously vocationally or avocation aliy it is an
obligation you have as that person to develop new interests I just told a
client yesterday morning new new intake that she said well what if I'm not
interested I said well you have to become interested okay if I can't
motivate you and lead you to some some new interests in your life you have to
figure that out if you don't you will not be happy with the outcome of the
system the process she was concerned she's a PA actually she's concerned
about winding up in some you know dumb or her low-level low-skilled job that
bores her to death and they say well you know we can avoid that but you've got to
work on your interests all you ever wanted to do was medical pathology okay
she cuts tissue puts it on a slide and you know answers questions that the
doctors have asked for the surgeons of ass she does the work she gives it to
the MD pathologist and the MD you know signs off on it and said you can't do
that her hands are blown out she's got got really bad deformed hands and you
can't do that so you're gonna have to think of other things that you could do
or that you could become interested in I hate to see an adverse opinion when I'm
recommending retraining for a client which I do every opportunity I can I
hate to see an adverse opinion that says but it doesn't fit their interest my
response is it will by the time they're out of school they
will be interested in this topic their pattern will change you know truck
drivers all many of them any all they're going to do was let's drive a truck when
it's taken away from them if they want to work they have to become interested
in other things otherwise they're not going to be satisfied they're not you
know they're not going to have good vocational experience in the future
after two testing and I just want to make sure I'm clear aptitude is an
acquired or natural ability for learning and for proficiency for performance okay
some people think of aptitude as more permanent and fixed that's not the the
training and education I had I see it as as changeable develop all subjective
development based on experience avocation allure vocational and training
or education okay you can develop better aptitude and you look at you look at the
aptitude materials that are out there if you test a law school applicant their
aptitudes will well you know they should be you know up there if you test them
again after law school they should not have the same aptitude pattern they
should have some strengths some some proficiencies or or learning abilities
that have improved as a result of that that education okay all right okay this is a chart comparing the DLT
in the onat basically the d-o-t it's good for assessment evaluation
transferable analysis job matching and vocational guidance helping people
select among the merits of different jobs the the d-o-t is quantitative
there's actual measurement I don't know how reliable it is after
what thirty thirty some odd years of not being maintained an update but that's a
political problem okay it's not a problem of the DLT that's a problem of
our society that refuses to invest in the infrastructure that we need to do
our job okay DoD has had its strong suit it's still they're still used by SSDI is
still used in the long term disability field and other venues okay
and what are you gonna do well you can use the O net the O net is good for
expiration it's good for it's it's very descriptive okay if you want people to
explore jobs explore ideas for future work show them that shown the the O net
stuff go through that with them okay that'll help it'll help generate ideas
but it's not quantitative there's no measurement so it's of limited value in
an analysis or in evaluative context like forensic work this is by it's by an
author a pair of author's name weed and field that's just me I just think that
could you imagine studying under dr. weed okay I just think that's hilarious
well well-regarded authors Tim field is out of University of Georgia he has
published mountains of material on vocational evaluation expert work life
care planning and and you know he's an academic guy okay alright labor market
research and I say research because in my mind
surveys are no longer you slaw picking up a phone and expecting to
call perspective employers and get information just as a dysfunctional
activity in my in my experience at this time wasn't that way in the 80s back in
the 80s the first LMS I did I picked up the phone I called about 20 trucking
companies there were guys that would talk to me for half an hour about
trucking about drivers about mileage rates about what they look for okay you
might find somebody that'll do that now but good luck ok my guess is it would
take to do a good LMS it would take an ordinate amount of time and I can't
imagine why anybody would want to pay for that time ok
there's simply a change in technology and change in our system back then in
the 80s there was no computerized source for that information I do recall going
to the st. Paul library trying to find BLS statistics in the st. Paul library
back in the 80s it was not really reinforced by nice supervisor at the
time as an appropriate billable activity or work work strategy today that's
reversed that information is available in a matter of seconds it's reliable
it's valid at least as its constructed and I cannot think of a reason not to
use the research and that data and the information available through sources
like career-wise that's the old I seek program Bureau of Labor Statistics
Occupational expiration or occupational Employment Survey and then BLS has a ton
of other data that they that they have developed on vacancy rates and so does
career career wise or the minute Minnesota economic analysis system so
you know use use those sources and then there's other internet information
indeed salary surveys you know the kind of thing that you can easily find just
just you know using search terms here's what I'm looking for pay a little
attention to make sure that it's a reasonable source that you're not using
garbage you know junk in junk out that there's some scientific merit in it I
did quote a forum once on truck typing it was just truck drivers writing and
stating their opinions you know it kind of slid by but you know I had my fingers
crossed the whole time not a good source it's still you know it helped and helped
me but so so look at at those sources in terms of yeah is this does this really
make sense does it line up with the other information that we can get and
use from other sources my opinion lms surveys are unreliable and therefore
invalid okay yeah I I wish it wasn't true alright the report pretty simple
you lay that all out in some fashion that you think is readable that the
other other people can comprehend review the the history the information the data
that you're relying on do your analysis state your opinion period okay
what level do you write your report at okay now hopefully you have college
level writing skills USA Today is written at a sixth grade reading level
Wall Street Journal is eighth grade gonna check my fingers eighth grade
technical manuals sir maybe twelfth grade and a lot of the
legal stuff twelfth grade you know adapt to your audience based on on the kind of
case it is okay alright I like long and detailed again others seem to do very
well with kind of just a short glossary of the the information that they have
okay real quick Mike's given me the four minute sign I think Federal Rule 702
basically is isn't an attempt in federal cases to make testimony based on
sufficient facts and data okay as opposed to just my opinion the witness
is supposed to have applied principles and methods reliable to the facts of the
case okay three important cases in the federal system dobbert is intended to
make that information that testimony reliable and relevant Joyner gives the
judge the role as the gatekeeper to judge determine what gets heard by the
jury or not and Kumho Tire recognized clinical experience as technical and
specialized knowledge you know we're in the social sciences not in the physical
sciences we're not engineers we don't have that level of scientific precision
so your clinical opinion your clinical experience is helpful useful and allowed
in the federal system okay what makes an effective expert credibility period okay
you look at this buying it buy it you know much stronger impact than other
characteristics what is credibility going to Aristotle its ethos which is
character pathos experience empathy and sympathy pathos is also that feeling
that you get that emotion you get from listening to music you know the things
that it makes you feel and you can do that as a speaker in an audience if you
have that the talent and the ability and then logos logic order knowledge you
know inductive reasoning deductive reasoning and syllogism okay Aristotle
wrote volumes about that now in the social sciences James McCroskey is a
speech communication theorist and he talks about credibility as competence
character sociability composure and extroversion you need to be willing to
talk to people to have that it's not charisma and it's not leadership okay
how do you become an expert Anders Ericsson is a Norwegian dude at
Florida State University has written on this extensively and his initial theory
was practice okay one of his students Malcolm Gladwell
wrote a book called the outliers I think and he developed what he called the
10,000 hour rule you want to be an expert violinist you need to practice
for 10,000 hours Erikson came back and said no no no no hours are not enough it
takes deliberate practice what the violin student does is they have an
instructor and that instructor says no you're not getting that and you work on
that until you do so it's deliberate practice working on your weaknesses not
your strengths not just going with what you got but developing that part of your
expertise that is most vulnerable that that you perform the worst at and in my
mind that's that's a critical thing okay this would be one of my weaknesses one
of the reasons I agreed to do this basic truism no such thing is a fact there's
only statements of fact judges are not actually looking at the facts they're
looking at what people say about the facts that what the doctor states what
the cure see States with the employees dates a high credible source is more
effective with low involvement listeners if the listener is highly involved in
the issue they tend to have their own opinion they tend not to listen to an
expert and not to adopt that opinion as easily okay credibility is an eye of the
beholder perception of credibility changes over time and credibility is
king okay if you if the judge feels you're credible if the jury feels you're
credible you got them okay I don't know how that works really it's just it's
this thing that you want to want to work toward and achieve when you're able any questions microphone I'll repeat
I'll repeat yeah yeah yeah Jeff saying he found it interesting that writing is
only 1% of a credible you know or an effective speaker or witness depends on
the audience if it's a jury I absolutely believe it okay if it's a
judge if it's work comp judge no not necessarily you know now I'm assuming
they read the reports okay if they do then you're writing matters how you
write reflects how you think if your writing is all over the place well that
means your thoughts are all over the place okay writing is how we express and
structure our thought and reflects our brain functions okay so that's that's my
take on it I can't Dave Hobson yeah a question for
you what what percent for your work cop work what percent of your work come from
plaintiff attorneys versus defense and I'm not saying that to put you on the
spot but more of a question I'm like do you feel that in any way affects your
credibility what's one side or the other if it does at all it my work is 100%
plaintiff referral yeah it's way I like it
so only way I would do it and I apologize to no one much to the chagrin
of the defense bar I don't yield to them anything on that issue okay so yes it
affects my credibility they think I'm a lying scumbag and I need to prove
different to the judge you know work comp context oddly enough you all know
many of the work comp judges are former defense counsel but when they come to
the to be a judge their values seem to kind of recenter or change somewhat okay
so I'm sure there are times when I'm judged harshly by it by just just
because of my history and the kind of caseload that I like and that I attract
that's the way it is the people who use me know that okay so you know I don't
apologize to it it's not supposed to be an issue I could work for sfm that's not
an issue either if if the sfm expert or QC will articulate their opinion and
support it with a reliable valid rationale doesn't matter who wrote their
check okay and in an expert context somebody is paying you okay there's no
neutrality there's impartiality that's based on on
profession now the attorneys again are sharks and so yeah they they they do all
of that and you can't win an argument with an attorney they're trained they're
assassins okay they do that but let me tell you it there's nothing
well there's few things better in life than really sticking it to
okay you get that opportunity do not pass as long as you're willing to pay
the price later okay I would I've done it and I immediately
duck and run okay and then I just hope I don't see that attorney next month or
even next year okay just one other one comment never lose control in the
courtroom okay bring a backbone right stand up for your opinion
but don't get emotional don't get excited that the attorneys are playing
their part their part is to antagonize you to trick you to misdirect you to
confuse you your part is to stay focused stay on track stand by your opinion
state it clearly get on with with the business yeah anything else all right
thank you
