The Admissibility of Expert Testimony of a Vocational Consultant in Workers’ Compensation Cases on the Subject of an Employee’s Disability

The Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel recently decided a matter involving the relevancy and admissibility of the testimony of a vocational consultant regarding an injured employee’s total disability. Miller v. State, No. E2015-00034-SC-R3-WC, 2015 WL 7013864 (Tenn. Workers Comp. Panel November 5, 2015) involved an Employee for the University of Tennessee. While moving a sign during his shift as a parking lot attendant, the Employee injured his neck.

An MRI and CT scan revealed a herniated disc and spinal cord compression. Employee had surgery for his neck shortly after the accident. After surgery, Employee had pain in his right arm and hand. His treating physician stated that he had a residual nerve injury which could not be confirmed by diagnostic testing. A different physician performed an independent medical evaluation (“IME”) a year later. The IME physician was unable to state whether the Employee’s upper extremity issues were related to the work injury. However, he assigned a 15% permanent partial impairment rating to the body as a whole for the injury and found that the Employee had little hope to get back to meaningful employment.

Thereafter, the Employee underwent a functional capacity evaluation (“FCE”). The therapist who conducted the FCE found the Employee was able to perform “light physical demand” work. After seeing the results of the FCE, the IME physician stated he had no problem with Employee working light physical demand type of work.

A vocational consultant evaluated the Employee at the request of the Employee’s attorney. The consultant assessed that all of the Employee’s previous jobs were unskilled and required heavy physical labor. He further found the Employee to read at a 5th grade level.

The vocational consultant reviewed the results of the FCE. Based on these assessments, the vocational consultant disagreed with the FCE and found that Employee was not capable of light work or even sedentary-type work. The vocational consultant further found the Employee to be totally disabled and opined that Employee sustained a 49% vocational disability as a result of his work injury.

The University objected to the admission of testimony of the vocational consultant which interpreted the results of the FCE and which opined on the Employee’s permanent disability. The trial court overruled the objection. The trial court then ruled that the Employee was permanently and totally disabled as a result of his work injury.

The University appealed partly on its contention that its objection to the vocational consultant’s opinions should not have been overruled by the trial court. The University argued that it was outside a vocational consultant’s expertise to place medical restrictions on an injured worker.

While the appellate court agreed, it found the consultant to be qualified to offer an opinion on vocational disability. The vocational consultant was found to have accepted the conclusions of the FCE regarding Employee’s abilities to perform various tasks before engaging in his analysis of whether the Employee had a vocational disability. Thus, he did not venture outside his area of expertise in assessing the Employee’s medical condition. Once he accepted the FCE’s conclusions, his further assessment was based on data from government and private sources regarding the physical exertion requirements of various jobs. It was the use of these sources, along with using the data from the FCE, which provided the vocational consultant the basis of his opinions regarding the Employee’s vocational disability.

Therefore, the appellate court held the vocational consultant’s testimony to be relevant and admissible. Thus, the trial court was found to not have abused its discretion by overruling the University’s objection to the vocational consultant’s testimony.

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