In determining economic damages, there are three key players. The doctor determines the plaintiff’s work restrictions, and the economist calculates the past and future loss of earnings.
First of all, the vocational expert identifies the appropriate jobs for the plaintiff, guided by the physician’s work restrictions, and identifies salaries associated with these positions. Secondly, the vocational expert calculates the plaintiff’s diminished probability of employment.
Typically, injured plaintiffs earn less in the jobs utilizing the physician’s work restrictions and experience a reduced probability of employment, causing further loss of earnings because they are disabled individuals.
For example, a 35-year-old Hispanic truck driver with a high school education becomes injured. The doctor restricts the plaintiff to sedentary work (sitting most of the time), meaning the plaintiff is unable to return to work as a truck driver. With a sedentary restriction, the plaintiff could work as a truck dispatcher.
If the plaintiff earned $50,000 per year as a truck driver and only $25,000 per year as a dispatcher, the loss of earnings remains obvious. However, in addition to earning less as a dispatcher, the plaintiff will experience additional loss of earnings because of a reduced probability of employment as a disabled person due to difficulty locating employment and competing on the job, and a reduced work life expectancy.
According to the U.S. Census Bureau 2014 Current Population Survey, Annual Social and Economic Supplement, an able-bodied 35-year-old Hispanic male with a high school education has an 89% probability of employment, while a non-severely disabled 35-year-old Hispanic male with a high school education would have a 69.3% probability of employment, equaling a diminished probability of employment of 19.7%.
Thus, an additional 19.7% loss of earnings as a truck dispatcher earning $25,000 per year, means an additional $4,925 in economic loss per year.
Why are you claiming future costs for vocational rehabilitation, when the state’s vocational rehabilitation agency will find the worker a job for free?
The California State Department of Rehabilitation has placed disabled people on waiting lists for the last 20+ years. Just because someone is eligible for services in California doesn’t mean they will get them.
California Department of Rehabilitation (2017) discusses the Order of Selection on their website:
“Whereas, the Department has since reviewed projected resources and projected costs for state fiscal year 2017-18, which starts July 1, 2017, and ends June 30, 2018, as provided by California Code of Regulations, title 9, section 7052(a), and determined that projected resources are inadequate to meet all the projected costs for state fiscal year 2017-18; projected resources remain sufficient only to continue to serve eligible individuals with the most significant disabilities . . . .”
What about the Americans with Disabilities Act (ADA)? Employers are barred from discriminating against people with disabilities, so they have as good a chance of being hired as an able-bodied person.
We have not found one study that demonstrates the ADA has significantly improved the employment of people with disabilities.
Recent studies show that the ADA is not working, because employers have fears about hiring people with disabilities. These include:
- Fear of costs associated with hiring
- Fear of the disabled worker needing additional supervision, resulting in lower productivity on the job
- Fear of being stuck with the disabled person indefinitely
- Fear of having “damaged goods”
A recent article published in Law & Policy by Michelle Maroto and David Pettinicchio takes a macrocosmic look at the effects of the ADA on employment of people with disabilities since its inception. They discovered the following statistics:
“When Senators Weicker and Larkin first introduced the Americans with Disabilities Act in 1988, only 30 percent of people with disabilities in the United States were employed . . . In 2008, employment was at 23 percent. By 2012, twenty years after the ADA took effect, just 18 percent of working age people with disabilities were employed, compared to 64 percent of people without disabilities.”