Devin Lessne, MA, MS, CRC, CDMS, ABVE/D, IPEC, CVE, ICVE
Vocational Expert Services, Inc.
Beth Leitman, MS, CRC, CVE, CDMS, IPEC
Vocational Expert Services, Inc.
Evaluating wage-earning capacity in cases involving a spouse who has disabling conditions is a unique and complex process. A spouse’s disabling conditions add several variables to a vocational evaluation For example, the occupational base (i.e., the number of jobs that are suitable for a spouse) can be greatly impacted when physical and/or mental limitations exist. Therefore, the spouse’s disability and its impact on the world of work must be considered by the vocational expert throughout the vocational analysis.
A disabling condition may have varying effects on a person’s functional capacity. While the medical records may indicate a condition exists, not all disabling conditions limit an individual’s functional capacity so that they are unable to work. A vocational expert thus determines the impact a disabling condition has on functional capacity. For example, the severity of migraine headaches may be mild and rare for one individual, which would have a minor impact on functional capacity. However, if a migraine headache is frequent and severe, that condition can reduce functional capacity until the individual is unable to work.
When disabling conditions are present, obtaining medical information becomes a necessary part of the evaluation process. Medical records are reviewed and used to address questions of work-related restrictions as well as the ability to function due to ongoing disabling conditions. However, the process of gathering records is often cumbersome, with several issues to overcome. One is identifying who is responsible for gathering the medical records. This could be the vocational expert, attorney, or spouse. The timeliness of obtaining records from medical providers is another issue to consider, as it can impact how quickly a vocational evaluation can be completed. Additionally, the providers will require either a subpoena or completed Health Insurance Portability and Accountability Act (HIPAA) form before they will release records.
With the review of the medical files, it may become apparent that different doctors have different opinions. The vocational expert can give opinions regarding suitable jobs based on the various opinions of the doctors. This could be provided whether the medical opinions were reconciled or two separate medical opinions were used. Another area that may arise is that of combined limitations, which can erode the occupational base even further. For example, a spouse may have two separate limitations, such as being able to use one’s hands only occasionally and having migraine headaches on an occasional basis. While neither of these conditions may erode the occupational base completely on their own, combined they could create a situation where a spouse is unable to work.
The task of obtaining and reviewing medical records from the providers can be very time-consuming. However, it is an important part of the process. An accurate vocational profile cannot be created without medical records; information that impacts the ability to work certain jobs may not be available alternatively. Additionally, an understanding of the size of the occupational base is critical for the vocational expert and depends in part on the spouse’s functional limitations.
The vocational profile, which assists in determining the occupational base that is present for a spouse, is developed by the vocational expert after medical records are obtained and reviewed. The vocational profile contains data regarding variables such as an individual’s age, education, past and present work experience, volunteering, and personal hobbies. This completed vocational profile helps to provide a more thorough picture of the individual with regards to their relationship with the world of work. When a spouse’s disability is a factor, the vocational evaluator must include the spouse’s Residual Functional Capacity (RFC) in the vocational profile. An RFC is the quantified functional capacity that remains after the disabling condition and is expressed as what the individual can do, despite his or her limitations. These included limitations may be regarding physical or mental health, such as how much weight an individual can lift or carry or if they need additional time to complete a work task. Limitations in functional capacity are documented by medical or psychological practitioners. If the limitations are not documented or are ambiguous, an independent medical evaluation may be necessary to establish quantified physical and mental limitations.
After a vocational profile has been created, a vocational evaluation can occur. A vocational evaluation is a sequential vocational analysis of the hierarchy of the return to work. First, the vocational expert determines if the spouse can return to past work within his or her residual functional capacity. If returning to past work is not possible, a Transferable Skills Analysis (TSA) will identify skills that can transfer to other jobs. If no job matches are identified by the TSA, the vocational expert will examine entry-level jobs and possibly recommend a rehabilitation plan. A rehabilitation plan may include the time, cost, and details of training programs and potential employment outcomes for the spouse with disabling conditions. The vocational expert considers the entire vocational profile when matching potential jobs that are suitable for the spouse.
Next, the vocational expert will identify jobs that are suitable to the spouse’s vocational profile. A Labor Market Survey (LMS) is created based on the spouse’s vocational profile. The purpose of the LMS is to collect current information from local employers about the availability of jobs, wages, and job requirements. Factors such as education, work experience, skill level, and physical and mental functioning may all be considered when surveying job requirements. The results of the LMS provide support for a vocational opinion on the employability and placeability of a spouse with disabling conditions. A spouse with no physical or mental limitations may be highly employable. As limitations are added to the vocational profile, the spouse has less capacity to perform a full range of work. Generally, the more severe the physical and mental limitations are, the higher the erosion of the occupational base. Evaluating a spouse’s earning capacity can therefore be much more complex when the spouse has disabling conditions. Additional contributing factors include, but are not limited to, the time and cost to gather and analyze medical records, reconcilitation of differing medical opinions, and the occurrence of combined limitations. However, when dealing with spouses with disabilities, all these factors need to be considered throughout the vocational evaluation process.