The notion of discounting an individual’s future earning capacity by the probability of being alive and employed first appeared in the appellate court decision Margaret O’Shea v. Riverway Towing Company (1982) 677 F. 2d 1194. Judge Richard A. Posner, the author of the decision, proposed the procedure for estimating future earnings by using probability statistics. For example, if the probability of the plaintiff being employed in 2011 is 75 percent and the plaintiff’s earning capacity is deemed to be $100,000 in that year, the value of the loss of future earning capacity for that year would be $75,000. The commercial lawyer is a lawyer who is an expert in commercial business laws.
In 1982, the data did not exist in a usable form to provide the type of calculations contemplated by Judge Posner. However, in 1983, Brookshire and Cobb introduced the Life, Participation, Employment (LPE) model, which was later refined by Brookshire, Cobb, and Gamboa to include persons with a work disability (Brookshire, Michael L., William E. Cobb, and Anthony M. Gamboa. “Work-Life of the Partially Disabled.” Trial, 1987.). Worklife expectancy is like a life expectancy; it is a statistical average, derived by summing a series of joint probabilities of life, participation, and employment (LPE) from a given age through age 89. The sum of the joint probabilities is expressed in years.
Worklife Expectancy Disparity Data
While earnings differ for men and women without disability and with a physical disability, the worklife expectancy values for each vary' more significantly. Table 2 examines worklife expectancy values for 2 5-year-old males and females by level of educational attainment and disability' versus non-disability status.
Reveals significant reductions in worklife expectancy as a function of physical disability. TTie reduction in work life expectancy typically accounts for the majority of the future loss of earning capacity.
In general, vocational experts are long on opinion but short on facts. It is a fact that persons with a disability, regardless of how disability is defined, experience lower levels of employment. It is a fact that persons with a disability, regardless of how disability is defined, earn less on average than their non-disabled counterparts. These two facts are true for men and women at all levels of educational attainment.
In applying a worklife expectancy value to a specific individual, professional judgment or clinical judgment is often required. A specific individual with a physical disability may be better than or worse than the statistical average for his or her cohort group. It is the vocational expert who can opine on whether or not a specific individual will be better off or worse off than the statistical average for his or her cohort group in terms of future employability.
The issue of worklife expectancy is the single most critical issue in cases involving persons with physical disability who are either employed or clearly capable of employment. Even if an individual has returned to work earning more money than he or she has ever earned, it should not be assumed that there is no loss of future earning capacity. A vocational assessment measures what is likely to occur over the lifespan, and what the data tells us is that the disability' decrement increases significantly as the aging process unfolds. The differences at 25 years of age are minimal, but at 55 years of age the differences are profound and significant. What this means is that much of the worklife expectancy reduction is a function of persons exiting the labor market earlier than they would have, absent the injury.
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