Anybody Can Do It with the Right Tools; It Takes Real Skill to do it with the Wrong Tools

1. Anybody Can Do It with the Right Tools; It Takes Real Skill to do it with the Wrong Tools

2. A Lutheran, a buddhist and a baptist & The (clamdigger) “inn” • Baptist Lutheran Buddhist

3. 3 Stories for rehab folk • An historical examination . . .

4. From John 5 (Historical view) • 2 Now in Jerusalem by the Sheep Gate there is a pool, called in Hebrew[a]Beth-zatha,[b] which has five porticoes. 3 In these lay many invalids—blind, lame, and paralyzed.[c]5 One man was there who had been ill for thirty-eight years. 6 When Jesus saw him lying there and knew that he had been there a long time, he said to him, “Do you want to be made well?” 7 The sick man answered him, “Sir, I have no one to put me into the pool when the water is stirred up; and while I am making my way, someone else steps down ahead of me.” 8 Jesus said to him, “Stand up, take your mat and walk.” 9 At once the man was made well, and he took up his mat and began to walk.

5. Luke 5 • 18Some men took a man who was not able to move his body to Jesus. He was carried on a bed. They looked for a way to take the man into the house where Jesus was. 19 But they could not find a way to take him in because of so many people. They made a hole in the roof over where Jesus stood. Then they let the bed with the sick man on it down before Jesus. 20 When Jesus saw their faith, He said to the man, “Friend, your sins are forgiven.” . . .  “I say to you, get up. Take your bed and go to your home.” 25 At once the sick man got up in front of them.

6. Judges 7 (Historical; 1stve?) • 4Then the Lord said to Gideon, “The troops are still too many; take them down to the water and I will sift them out for you there. When I say, ‘This one shall go with you,’ he shall go with you; and when I say, ‘This one shall not go with you,’ he shall not go.” 5 So he brought the troops down to the water; and the Lord said to Gideon, “All those who lap the water with their tongues, as a dog laps, you shall put to one side; all those who kneel down to drink, putting their hands to their mouths,[c]you shall put to the other side.” 6 The number of those that lapped was three hundred; but all the rest of the troops knelt down to drink water. 

7. IT TAKES REAL SKILL . . . Objectives • Identify elements that determine the appropriateness of tools and procedures used in the vocational evaluation process; • Critically analyze and defend the validity of the vocational evaluation process, tools and techniques used; • Write legally defensible reports that can be used in multiple settings - legal and otherwise - in the vocational rehabilitation process.

8. Questions . . . • Can the tests and procedures used withstand intense scrutiny? • Do the evaluations we conduct have predictive validity? • Reliability? • Why do we use the tests we use? • What are their strengths and weaknesses? • If you were called to the witness stand to defend your vocational evaluation process including selection of tools and procedures, could you do it?

9. Models of Vocational evaluation: An historical perspective • “Lap Like Dogs” • Psychometric • Encounter / work samples • VDARE • Worker Trait Factor (WTF) • Computerization & WTF • Community Based & Supported Employment • Poltergeist • Today’s Forensic

10. forensic vocational evaluation model • ReferralwithReferralQuestion • Contract • ReferralInformation • Face to Face • Scoring and Analysis • PreliminaryReport • InformationRequest • Report • Update/Trial PreparationTrial/ • Settlement/ Closure / Follow-up

11. Let’s look at some wrong tools and real skill

12. the wrong tools . . . • “The WRAT4 is not a comprehensive academic battery and is woefully inadequate for academic placement”

13. Real skill . . . • “Correct. It was not used for academic placement. The WRAT4 is well matched to the world of work and is the most commonly used instrument in the field of vocational evaluation. I personally have used his instrument for more than 30 years and have found it to be reliable and a valid predictor for work related purposes.”

14. The wrong tools . . . • “The WASI is not the standard for IQ testing and is not used for mental status classifications and is an inadequate instrument for assessing intelligence. Further you are neither a psychometrist nor a psychologist and are not qualified to assess IQ.”

15. Real skill . . . • “You are correct that the WASI-II is not the standard for classification, but it bears a high correlation (r > .9) with the most authoritative instrument – the WAIS-V - of intelligence on the market today. The developers of the WASI-II require a combination of education and experience to purchase the test consistent with level B testing. I do not classify people, but am qualified to interpret the results of this test and how those results are relevant to the world of work. I have assessed IQ for more than 30 years and have testified in Federal and State Courts 200+ times and my testimony regarding IQ has never been disallowed.” [Psst: Its in the name]

16. The wrong tools . . . • “The FCE in this case indicated that the claimant could return to heavy work, yet your assessment limits him to light work. Surely you are not qualified to disagree with the Occupational Therapist’s assessment, are you? And before you answer, please note a physician signed off on this assessment.”

17. Real skill . . . • “There are multiple reasons my assessment differs from that of the OT and the physician, all of which fall with the purview of a Vocational Expert. First, the FCE Report indicates that the Validity Criteria (a process Waddell himself disclaimed 15 years ago) were not met, yet the OT provided an exertional category which seems prima facie to be a contradiction.

18. Secondly, the claimant lifted 51 pounds which does not satisfy the full parameter of heavy work. Third, the postural limitations indicate a need for a sit-stand-walk option of which there are none at the medium and heavy exertional categories. Finally, the claimant reported a level 5 pain at the beginning and a level 9 at the end, and reported that he was “down in the back” for 3 days post evaluation”

19. The wrong tools . . . • “You used Gamboa’sWorklife Expectancy Charts which are deeply flawed”

20. Real skill . . . • “To the extent that Census Data is flawed, those worklife expectancy charts are flawed. But the data are authoritative and I would be remiss not to consider them. Note that my assessment does not adopt the Tables specifically; rather, they were used to indicate statistically that people with disabilities have a higher rate of unemployment than their non disabled counterparts.”

21. The wrong tools . . . • “One profession shall not serve as a conduit to another profession”

22. Real skill • “As a Vocational Expert / Evaluator, I have the ethical responsibility to consider the vocational implication of every bit of data that bears on this person. The Hippocratic Oath says “First, do no harm,” and these opinions are harmful to the vocational prognosis of this person.”

23. A challenge to the conduit rule • “This patient’s presenting complaints are not felt to be related to his work related injury” [Physician after completion of FCE]

24. The work related injury

25. Warning. Graphic picture to follow

26. Rationale for Violating the conduit rule

27. Case study

28. A basic outline • Background Information • Vocational Interview • Tests and Procedures • Summary & Recommendations

29. I. Background Information • Mr. M. Lindsey: 51-year-old male referred by his attorney in relation to a motor vehicle collision that he suffered late in 2014. • Vocational Interview • Visual AnalogPain Rating ScaleTechnique • Wide Range Achievement Test-Revision 4 • Wechsler Abbreviated Scale of Intelligence - Second Edition • Sage Manual Dexterity Test • PurduePegboard • Reviewreferralinformation

30. I. Background Information (con’t) • Referralinformation. Grady Hospital; OrthopaedicSpecialists; Behavioral Medicine; NeurologyAssociates; Mayo Clinic; Pain Management Center; Employer’sFirstReport of Injury; PhysicalTherapy;miscellaneous.

31. II. Vocational Interview • History of Onset/Background Information. • “My 18 wheeler was hit by woman hopped up on drugs” (12/2014) • LOC (uncertain how long he was out). • He was treated at the emergency room. Problems continued. Pain and dysfunction to the right side of body and head. • RTW “light duty” for a few weeks in a desk job, but he had no specific duties. • The Orthopaedic Clinic took him out of work. • Told he would not be able to return to work as a truck driver. • No RTW. Failed CDL exam.

32. ii. Vocational Interview (con’t) • Claimant’s Perception of Functional Abilities. • Can reasonably handle 15-20 pounds. • Alternates sitting and standing at 20 to 30 minute intervals; walk a couple of blocks. Able to drive. Stooping, kneeling, crouching and crawling are painful. Reach limited by neck pain. Loss of grip strength.

33. II. Vocational interview (con’t) • Claimant’s Perception of Functional Abilities • Depth perception impaired. • Headaches. • Short term memory loss • Hyperphotosensitivity • Vertigo • Incoordination • Problems with word selection (expressive aphasia) • Forgets conversations • Ringing in both ears.

34. II. Vocational interview (con’t) • Pain Assessment. • Pain in RLE, back, neck and head in the moderate to moderately severe (5-8), daily

35. II. Vocational interview (con’t) • Emotional Adjustment. • Struggling with depression; seen by a psychiatrist. Wants to continue when he has the funds or insurance. • Education / Training. • Dropped out of high school in eleventh grade. Obtained GED in 1994 + one year of community college. No military experience. • Employment History. Career Truck Driver for the past 25+ years.

36. III. Test Results • WRAT4 • Word Reading 93 11.9 • Sentence Comprehension92 11.9 • Spelling9010.6 • Math Computation 907.0 • Reading Composite 90 11.7

37. III. Test Results • WASI-II • Verbal Comprehension – 95 • Perceptual Reasoning – 94 • Full Scale of 94

38. III. Test Results (c0n’t) • G - 3 • V - 3 • N - 3 • S - 3 • P - 3 • Q - 3 • K - 5 • F - 5 • M - 5

39. IV. Vocational appraisal • Total Disability; 100% VDR

40. IV. Vocational appraisal (TBI) • It is noteworthy that the medical record is replete with many of the symptoms that Mr. Lindsey described during the present evaluation that may be sequelae of brain injury, and the precipitating event (i.e., motor vehicle collision) is commonly associated with brain injury. Specifically, the symptoms include psychological changes, short term memory loss, hyperphotosensitivity, incoordination, vertigo/balance problems, tinnitus, expressive aphasia, and visual changes. A neuropsychological evaluation is required for diagnosis and is recommended.

41. IV. Vocational appraisal (Tests) • Present testing resulted in reasonable scores given Mr. Lindsey’s reported history, and there is good consistency for validation purposes. He has a GED with one year of community college and demonstrated achievement scores commensurate at the 11.9 in Word Reading and Sentence Comprehension. Spelling performance is at the 10.6 grade level, with Math Computation at 7.0. The multigrade disparity among the scores, combined with average range IQ scores is suggestive of a mild learning disability; further testing is required for diagnostic purposes.

42. A comparison of the mean from standard scores of achievement testing (91) to his tested IQ (94) is in the range of expectation and suggestive of consistency of effort and overall validity. Upper extremity testing that included manual and finger dexterity resulted in significantly below average scores which are felt to be reflective of his presenting medical issues.

43. Post evaluation • Neuropsychological evaluation was performed at UAB. Demonstrated “moderate” TBI with specific functional limitations. Testing corroborated VE testing. Eliminated truck driving, but no comment on other work.

44. 5 months later . . . • 3.5 hour deposition x 3 opposing lawyers • Intentions: • Limit my testimony at trial to strictly vocational matters • To disallow my critique of the FCE and the doctors’ opinions re: work • Lay the foundation that Lindsey was seeking secondary gain • Remind me that the greatest doctors in the world had not diagnosed TBI

45. One week later . . . • The case settled. The settlement was “closed.” • Prior to my deposition, the case was valued at $200,000.00, • It settled slightly over $500,000.00