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CEC Associates Incorporated
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This Series consists of five (5) separate articles and is worth four (4) Credit Hours (2 Ethics Credits) for CRCC and CDMSC and four (4) Credit Hours for CCMC. Each article has corresponding questions that can be found be clicking on the Questions link. Article 1: Ethical Considerations in Forensic
Occupational Disability Evaluations // In the Blink of an Eye
By Jasen M. Walker, Ed.D., C.R.C, C.C.M. Introduction The occupational evaluations of plaintiffs in personal injury lawsuits challenge the vocational rehabilitation professional, in the role of vocational expert, to perform not only her or his very best, but perhaps most of all, to be ethical. Vocational disability evaluations in legal matters serve the justice system. Even though many of us voice concerns regarding the justice system and mumble skepticism regarding expert witnesses employed within that system, no professional assignment deserves more respect and careful consideration than the task of the court expert to provide judges and juries with critical information from which they can render decisions regarding damages associated with personal injury. To meet the challenge of vocational/disability evaluation and associated court testimony, rehabilitation professionals need to carry out a number of essential steps in formulating their expert opinions. Many of these steps are not only central to the process of arriving at professionally certain opinions, but are by their very nature, ethical considerations for conducting occupational disability evaluations. Gathering sufficient data, knowing the subject of the evaluation, remaining within one’s discipline, and protecting one’s written opinions from the potential influence of others are not only critical concepts in forensic occupational disability evaluation, but ethical standards that require the highest level of regard. Possessing All Available Information Whenever the disability evaluator is challenged with the assignment of assessing a person’s occupational potentials and how those potentials may have changed secondary to health issues, the evaluator must push the referral source to discover and yield as much information as possible. Typically, when evaluating an adult who has claims of vocational disability, the evaluator will want documentation regarding not only the evaluee’s medical history, but his or her educational background, including academic records. Often, occupational success is a function of educational achievement, not only in terms of grades and standardized test scores, but school attendance and behavior, the information found in school records. Vocational histories taken during the time of examination are subjective to the extent that they are stories provided by the examinee. No doubt, the skilled evaluator can and does create questions that glean information regarding vocational skills demonstrated, materials and methods used, types of employment held, and the length of time in each job performed, but again, the source of that information can always be questioned. Job applications, resumes, performance reviews, attendance records, and earnings/tax statements are potentially vital documents in a thorough, and therefore ethical, evaluation of an injured worker. Of course, discovery of documentation requires time and money, and this is frequently the key to the ethical dilemma. That is, does the referral source want to spend the time and money to secure the necessary background information that would allow the expert to be thorough? It is the contention here that experts have an obligation to make sure that the referral source knows that certain information may be critical to facilitating an opinion that can be reached with a reasonable degree of certitude. Examining the Injured Person Whenever Possible Whenever possible, the vocational/disability evaluator must endeavor to conduct a face-to-face examination of the injured party in order to fairly and reliably assess the person’s capacities to work. There are exceptions to this rule. For example, when a youngster who cannot communicate very effectively is being assessed, other sources of information may be substituted for a personal history. Likewise, an individual may be so catastrophically impaired that it is self-evident that they will never work following injury or illness, and in such cases, pre-injury employability may be assessed from documentation alone. Further, in some instances the plaintiff will refuse to attend the examination. In those cases, it is fair to say that the vocational expert is released from his or her ethical obligations in attempting to assess the plaintiff’s employability and earning power. However, when the claimant to be evaluated refuses to attend an examination, the evaluator and referral source must endeavor jointly to develop reliable information from alternative sources (e.g., employment and military records, school documents, etc.). Vocational examination nearly always requires more than interview observations and data collection. Whenever possible and appropriate, standardized testing with measures that the examiner/expert is trained and familiar to employ should be utilized during vocational/disability evaluation. One must keep in mind that the forensic evaluation generally has time limitations. The evaluation, particularly in the defense-requested evaluation, is generally “one shot,” and follow-up with the examinee is seldom afforded. Therefore, the vocational examiner’s diagnostic assessment must endeavor to gather as much information as possible in the brief time allotted. Most vocational examinations include both interviewing and testing whenever appropriate. Standardized testing, of course, also has limitations, but the more potentially reliable information gathered the better when the expert endeavors to reach conclusions after one opportunity to assess either a physically and/or mentally impaired person. Recognizing and Validating the Difference Between Impairment and Disability Unfortunately, for years members of the legal system, perhaps because they found it to their advantage, have failed to distinguish between impairment and disability. Too often, adjudications regarding occupational disability rested on whether the physician stated that an injured person could or could not work. Frequently, physicians are asked a question, “Can Mr. or Mrs. X return to work?” or, “Is Mrs. or Mr. X totally disabled?” Physicians do not have the training of vocational rehabilitation professionals and, therefore, seldom have the expertise to render vocational conclusions with professional certitude. The American Medical Association, in its publication Guidelines for the Evaluation of Permanent Impairment, distinguishes between medical impairment and occupational disability and underscores the importance of qualified vocational assessment in personal injury litigation. For example, a surgeon loses a hand in a lawnmower accident and files a product liability action against the lawnmower manufacturer. The plaintiff-surgeon claims that he is totally disabled from his accident and has the support of medical experts also declaring that the surgeon is “totally disabled.” However, the vocational expert interviews and tests the surgeon and concludes that the surgeon has the aptitudes, the temperament, and other worker characteristics sufficient to be a successful chief of staff or HMO administrator. The vocational expert finds the plaintiff able to function in an administrative or, perhaps, executive role, and the surgeon’s claims of total disability are potentially mitigated or defeated entirely. A change in one’s health status may lead to permanent medical impairment, but medical impairment alone does not translate into occupational disability. Vocational experts understand the physical and mental demands of jobs and work in general. Only when medical impairment leads to a diminution in one’s abilities to meet occupational demands can vocational disability be defined, and when a person may be disabled from one or more aspects of a particular job, it does not follow that they are totally disabled occupationally. For decades, vocational professionals have endeavored to find job accommodations for people with physical and mental challenges. In and of themselves, job accommodations have the potential to lessen or eliminate vocational disability. It requires a vocational expert to determine whether a personal injury equates to a vocational loss. Economic Assessment vs. Earnings Loss Evaluation People who are impaired as the consequence of illness or injury are not necessarily disabled occupationally. Vocational disability evaluations require particular training, knowledge, skills, and expertise. Likewise, economic projections regarding the impact of personal injury require economic training that most vocational professionals do not possess. Although the vocational expert may be able to speak to hourly, weekly, and/or annual earning power, both before and after the onset of disabling disease, economic projections require the expertise of an economist or actuary. Some vocational experts hold themselves out as vocational economists. However, there are ethical questions to that practice. Economists are trained to understand the present and future value of money, market conditions that affect monetary value, life expectancies, and worklife expectancies. They are also trained to apply these statistical factors to carefully individualized valuations. Protecting One’s Expertise from Outside Influences and Editorializing Too often, through language manipulation, legal referral sources want to influence or even write the expert’s report. Presumably carried out with good intentions, the lawyer(s) executing the referral want to make sure, for example, that the expert is not discredited on cross-examination. Referral sources want to review a draft report or edit the expert’s report during telephone conversation with the expert. However, this is a slippery slope that should be avoided at all costs. Vocational experts, or for that matter all forensic/legal experts, should not make their reports, and certainly not their opinions, available to be modified in even the most benign ways. Anytime the expert exposes him/herself to the influences of an outside party involved in the litigation, the expert is potentially compromised. Experts, however, must communicate with those that employ them, and the expert must give careful ethical consideration to what is open for discussion and must have very strong and dogmatic standards regarding what will be discussed prior to testimony. The written opinion itself should be honored and maintained unless new information becomes available prior to the expert’s testimony. In all other situations, so-called “preparation” before trial should be strictly controlled by the expert. Allowing referral sources to edit reports or in any way influence the opinions of the expert should be avoided at all costs. Testimony That being said, it should also be stated that the vocational expert has an obligation to help the trial lawyer prepare for taking vocational testimony. The expert’s testimony is in some ways an art form designed to deliver a scientific, or at least a quasi-scientific, set of conclusions. Most lawyers do not know how to examine vocational experts, and many more do not know how to redirect the expert following cross-examination. This is not said to criticize lawyers. It is simply to say that it is the expert’s obligation to understand that his or her expertise remains more or less esoteric, even to the lawyer who has retained the expert. The education of the lawyer on the process of vocational/disability evaluation, the meaning of the data gathered, and how one arrives at professional conclusions is an ethical consideration for the expert. This may be, in fact, an ethical obligation. To tell the judge or jury what a person can or cannot do occupationally and/or how medically defined impairment can or cannot be accommodated in the workplace is the vocational disability evaluator’s challenge. The story to be told is done through a narrator, the direct examining lawyer. Frequently, on cross-examination the story can become confused, and redirect examination may be successful only if the narrator knows what to listen for and how to formulate clarifying questions for the expert. All and all, this is no simple task, and the more the retaining lawyer understands about the application of vocational science to the particular matter at hand, the better the story can be told. Preparation time with counsel anticipating what might be asked on cross-examination so those questions might be fully answered is generally time well spent. Summary The occupational/disability evaluation of plaintiffs in personal injury lawsuits challenges the vocational rehabilitation expert in a number of ways, and all have serious ethical implications. These include how the expert goes about:
Protecting the expert’s findings and opinions from outside influences and communicating those opinions so that members of the court can fully appreciate the rationale and foundation for those opinions are ethical requirements that vocational/disability experts must endeavor to meet.
PART II: In a Blink of an Eye: What Business Leaders Still Do Not Understand About the ADA By:
Jasen M. Walker, Ed.D., C.R.C., C.C.M. Initial Perspective There are those of us who are visually impaired, and there are those who cannot see, even with perfect vision. Who is to say who has the greater social handicap? Corporate
America still does not get it. Corporate
America does not understand the real power of the Americans with Disabilities
Act. The obliviousness of business
leaders to the ADA may be the result of limited experience with individuals who
have disabilities. Without
requisite experience with individuals who are physically or mentally challenged,
corporate decision-makers (usually able-bodied white males) will not understand. They cannot understand. They
will be unable to see the true value of the Americans with Disabilities Act. We
recall vividly an event that we think illustrates the point. We can visualize the moment as if it were yesterday. In fact, it occurred in September of 1991: a beautiful summer
evening in Orlando, Florida. We
were there to deliver an ADA presentation to a group of risk managers. They had gathered, as they do annually, to discuss how their
organizations might control workers’ compensation and other insurance-related
costs. Just after the customary business meeting but before our presentation, the president of this association introduced one of its members who had requested special time to address his colleagues. Harry’s request took us by surprise, and we still remember our agitation spurred by our nervous internal rehearsal and the delay that this member’s request brought to our sense of self-importance. After all, we were there as the invited guest speakers. We bit our tongues and we waited. Harry, a risk manager for over 30 years and a member of this particular association for 20 years, stood up to say good-bye to the group. He announced that he had carcinoma and his colon cancer was now invading other organs as well. The cancer was, in fact, killing Harry. But he wanted his associates to know that he loved his work. He shared his warm regard for them and conveyed that if “by chance” he did not make it back to Orlando for the next year, he would truly miss them. In a selfless moment, Harry genuinely encouraged everyone, particularly the older men in the group, to have annual colorectal examinations. He lamented that he had not. But
Harry ended his shocking disclosure and tearful goodbye with reporting that his employer had proposed separating him from work; putting him out “on
disability,” as was the organization’s policy. He most regretted this, he said, because he truly wanted to work. He knew he had the strength to do so. Harry feared the thought of being removed from work only to go home and
wait for death. Harry quietly dismissed himself. The room was stone silent. As Harry left the room, we realized we were scheduled to speak next. Torn
between the tragedy of Harry’s message and our egocentric desire to take
advantage of the “teaching moment,” we proceeded to the lectern.
In the Blink of an Eye To
this day, we are not sure if anyone really heard our message at that meeting. It was hardly anytime for the people in the room to use their
cerebrums: our hearts still went out to Harry. But Harry’s message was our message too. In the blink of an eye, the importance of the ADA had hit
home to a risk manager; had hit home to a man who for 30 years had been making
decisions about the re-employment of injured and ill workers. In the blink of an eye, the real power of the ADA also hit home for us,
the so-called “experts” invited to teach. The
“blink of an eye,” a unit of time measured roughly as .06 seconds, has both
spiritual significance and practical implication. Theologians tell us that in this brief period of time, conception takes
place, and a new generation begins. Supposedly,
the spirit can leave the dead body in the blink of an eye. Those who recount “near death” experiences lend credibility to this
“blink” notion. In the blink of
an eye, we lost John F. Kennedy. And
the world changed. In the blink of
an eye, Jim Brady’s life was changed. In
the blink of an eye …. With suddenness that mocks the blink of an eye, biomechanical forces can crush the cervical vertebrae of an auto accident victim and cause a driver or passenger permanent paralysis. A blood vessel in your head can burst in the blink of an eye and leave you hemiplegic, unable to use your dominant hand ever again. In the blink of an eye, a normal cell can become malignant. None of us are immune to events that can permanently change our individual worlds in ways that we cannot imagine or see, all in the blink of an eye. It took the American public over 17 years (the time it takes to blink one’s eye billions of times) to bring portions of the Rehabilitation Act into the private sector. From all appearances, it will take many years more to change organizational behavior so that the ADA and its concepts are fully embraced and practically implemented. We
have heard business leaders give many reasons for why their companies have not
yet embraced either the spirit or the practical aspects of the Americans with
Disabilities Act. Some executives
tell us that the law is too vague. Others
suggest that they will wait for court decisions to refine the ambiguities in the
Act, and some even imply they plan not to
change until some action is brought against them. Some business leaders have relegated ADA policy-making to
their human resources departments, ignoring the potential that the ADA has to
significantly impact comprehensive risk and medical costs for the company. Unfortunately, nearly all business executives and managers with whom we
have consulted rely heavily on the input of lawyers to shape their response to
the whole issue of employing individuals with disabilities. Rather than making a top-level decision to be pro-active in reaching out
to the pool of qualified applicants and/or workers with disabilities for their
companies, they rely on the advice of counsel for ways to protect themselves
against possible exposure to such individuals. Business leaders who fit this mold cannot see the forest for the trees. But, in the blink of an eye, anyone empowered to make ADA compliant company policy must fully realize that they themselves are but a blink of an eye away from needing the protection that the ADA affords everyone. It is important to remember that virtually every American, regardless of race, ethnic background, educational level, income, or power to make corporate policy, has, or will have, some direct connection to people with disabilities. Therefore, all of us have a personal interest in assuring equal employment opportunities for Americans with disabilities. As we age, we have a twenty-five percent chance of becoming physically or mentally challenged. People are only temporarily able-bodied. Should we, during our work lives, experience an alteration in our functional capacities, we would want ADA protection. Speaking
to participants in a 1987 seminar co-sponsored by the Smithsonian
Institution’s Woodrow Wilson Center and the National Office on Disabilities,
syndicated columnist George Will emphasized the universal importance of ensuring
equal opportunities for disabled persons: The most striking fact about the [disabled population] … is that it is the most inclusive. There is a sense in which we live in the antechamber of the handicapped community. I will never be black and I will never be a woman. I could be handicapped on the drive home tonight. Although
his language may not be politically correct, it is obvious that George Will
realizes what we want most business executives to understand – that they too
potentially can require the protection of the Americans with Disabilities Act. As individuals committed to enhancing the general public’s awareness of
issues related to people with disabilities, particularly full employment, we
must constantly remind corporate decision makers of Mr. Will’s awareness. Our
On-Going Mission (and Vision)
Back
in 1991, when we were the recipients of the risk manager’s profound lesson to
all of us, there was much ado about the ADA. Politicians, lawyers, rehabilitation professionals, and members of the
news media were attempting to educate both the general public and business
leaders on various aspects of the
ADA. Workshops and lectures were
everywhere. Soon the fuss subsided. Business leaders eventually stopped attending seminars, and
unfortunately, they ceased considering implementing change in their
organizations. Managers
are now waiting for law suits and court decisions to force their hands. Unfortunately, we have never been successful in this country
in either legislating or litigating morality. Effective change will not come
through the courts. In the face of
this resistance, we must continue our efforts to educate and influence with a
sense of vision. We
would do well – we would do best – to know that corporations will respond
when we show them the considerable cost
benefits to employers who comply with the ADA. Organizations can save enormous sums of money by hiring qualified
people who want to work. Companies can reduce the total cost of workplace disability by
returning people to gainful activity with “reasonable accommodation.” Companies must forego the so-called “light duty” mentality, the
insidious welfare equivalent of “making work for others,” and provide job
modifications of essential functions based on an individual’s residual
capabilities and strengths rather than focusing solely on weaknesses. Risk
managers and human resources people can be encouraged to cooperate and
vocationally rehabilitate employees with impairments, regardless of the source
of those impairments (i.e., work-related or not). But, until corporate board members and top-level executives understand
what George Will and Harry, the risk manager, understood, we will have made
little progress in actualizing Title I of the Americans with Disabilities Act. Our ongoing mission is to help those business leaders see – in
the blink of an eye. Note: The
George Will quote and the paragraph above it come from Opportunity
2000. We borrowed the “blink
of an eye” concept from A Small Voice.
PART
I: What
Employers Need to Know in Identifying, Selecting, and Managing Providers
for Disability Management by Jasen
M. Walker, Ed.D., C.R.C., C.C.M. Introduction Many
employers take control of their loss prevention and work injury programs by
contracting with outside providers for assistance with their Disability
Management Programs (DMPs). The
question of how a work organization employs rehabilitation providers is a
critical issue. The
three critical aspects of the rehabilitation provider contracting process are:
This article will address how employers, especially self-insurers, can take control of the identification, selection, and management of their rehabilitation service professionals. This article is especially focused on the concepts Vocational Counselors can use to advise and assist employers in managing their rehabilitation provider contracts.
Identifying Certified Case Management and Vocational Rehabilitation Service Providers The specific competencies and skills of professional rehabilitation providers are validated by organizations that were created to set standards, to test individuals on those standards, and to issue certification to those individuals who pass the certifying examination. The most relevant national credentialing organizations are:
Original certification is based on a successful outcome to an examination. For example, to be certified as a Case Manager, one has to pass a 300-question, multiple-choice examination. The objective of the examination is to measure basic knowledge of case management. Once certified, Case Managers can be assigned the responsibility of coordinating the existing and future health care of an individual who has been injured or is ill so that a client can receive the most cost-effective and goal-directed acute care and rehabilitation services available. The rationale for minimum competencies is spelled out by the accrediting agencies in what are called Standards of Practice. The Standards of Practice are available from the above accrediting agencies on their respective web sites. Why are the Standards of Practice essential? The Standards set forth a rationale for the entire profession and provide a reference to why the Standards are established (e.g., to serve the client). They further identify the various groups having an interest in successful outcomes in this profession. In the case of Rehabilitation Counselors, the Commission on Rehabilitation Counselor Certification has identified the following shareholders:
Traditionally, professions (as opposed to occupations or jobs) require a high level of expertise in a specific field. For Rehabilitation Counselors, for example, the original minimum knowledge required of its practitioners also becomes the published standards by which the quality of their ongoing in-service performance can be monitored. In this way, clients who use the services of Rehabilitation Counselors can clearly identify the type of services and the quality of expertise they should rightfully expect. Additionally, other professionals, state and federal regulators or lawmakers, and those parties who purchase rehabilitation services can be made aware of what services qualified counselors can appropriately render, and how those services relate to the total plan of rehabilitation for the person with a disability. Finally, the profession itself recognizes its responsibility to protect the client by establishing and enforcing standards of ethical practice for its members. Standards of Practice for all professions have grown increasingly complex over the last several decades. In general, the term “Standards of Practice” simply means those criteria that indicate acceptable professional performance. In the case of rehabilitation counseling, the profession’s Standards of Practice are contained in two key documents: the Scope of Practice for Rehabilitation Counseling and the Code of Professional Ethics for Rehabilitation Counselors. Taken together, these documents constitute the Standards of Practice for Rehabilitation Counselors. After an individual has received the original |
