An Arm and a Leg
Work: John May, forensic expert witness
John May knows jobs. He should; he’s held enough of them: teacher, salesman, drug and alcohol counselor, pizza-delivery driver.
“I just couldn’t find the right fit for me,” says the 48-year-old native of Worcester, Mass. “I just knew I liked working with people.”
May once worked as a repo man. It was a challenging and unsavory job, he admits, taking possessions away from people who were down on their luck. But, his mom told him at the time, “One day, this experience is going to benefit you, and you’re going to use it to help people.”
She was right. May turned his eclectic employment history into a specialty. Since 1993, he’s worked as a vocational rehabilitation counselor, helping Vermonters who have been injured or laid off from their jobs return to the workforce.
Sometimes that’s impossible, especially when a person suffers a permanent disability, such as a brain injury or the loss of an eye or foot. In those cases, May calculates the value of the limb or bodily function in terms of lost wages.
His unusual skill has gained him yet another job title: May is one of only three “forensic expert witnesses” in Vermont. He’s a partner with Solutions Comprehensive Rehabilitation Services of Burlington, where a growing percentage of his work involves testifying on behalf of the injured workers in lawsuits and workers’ compensation cases involving personal injuries, medical malpractice, wrongful termination and marriage dissolution. (Yes, even the loss of a spouse can affect one’s future earning potential.)
At first glance, May’s work may seem as unscientific as gazing into a crystal ball and asking, Would that paraplegic child have grown up to be an accountant or a professional field-goal kicker? However, there’s a legally recognized methodology to his calculations, which also help him find jobs a person can do to remain employed.
Of course, he has to consider those skills in the real-life context of the local labor market. “If someone’s future earning capacity includes occupations such as lobster fisherman,” May notes, “that’s not going to translate well to Vermont.”
SEVEN DAYS: Can you tell me what a thumb is worth to you or me, versus what it’s worth to a surgeon?
JOHN MAY: Obviously, the value of a thumb to a pianist or surgeon is going to be much greater than to a reporter or voc rehab counselor. The thing we’re going to look at is, are there assistive technologies that might allow you or me to perform our jobs? For example, there’s voice-activated software, where, if I couldn’t type, I would still be able to input my reports. For a surgeon who has lost the ability to use his or her hands, there may be other medical professions. They can become consultants to insurance companies or forensic experts.
SD: What goes into your analysis?
JM: There are basically four components we look at: What is the salary? What is the occupational outlook? What are the aptitude and training requirements in a particular occupation? And what are the physical demands? Based on that, we decide what their earning-capacity loss might be.
SD: Is that how workers’ compensation works?
JM: In the workers’ comp system, the loss of body parts is assigned a certain number of weeks ... It’s a no-fault system. You can’t sue your employer, and they can’t sue you or fire you because you got injured. So, you get what’s called temporary total disability, which is two-thirds your wage for as long as you’re getting better. And it’s tax free. I don’t know the exact number, but if you lost a thumb, it might be 62 weeks. That’s not a lot of money, really, in the grand scheme of things. In civil litigation, the loss of a thumb might be much more, but because it’s a no-fault system, these formulas are in place.
SD: Do you come into court with a dollar figure for a lost body part, and the other side makes a counter-offer?
JM: Yeah, essentially that’s what happens.
SD: So, there’s haggling involved.
JM: The difference is, one expert, philosophically, might feel that an obstacle is too great to overcome, [such as a] psychological condition. So, their depression is not going to be helped if you compel this person to go back to work; it’s just going to make the depression worse. Another expert might say, “Oh, it is a useful adjunct to the treatment for depression for this person to go back to work.”
SD: How do you calculate the lost future wages of an injured child?
JM: There is an accepted methodology. What you look at are the career paths of the parents or care providers and say, “In all likelihood, this child’s career path would have mirrored that of his or her parents.” Now, in conjunction with that, there should be some testing done, because there will be outliers. You could have the child of a single mother who goes on to become the president of the United States. You’re also going to say, “How has this child done in school? “You’re going to look at educational records, and any other records that are available, to determine what this child might have been able to perform.”
SD: Is the compensation for an injured child greater if the parents earn more?
JM: It’s interesting, because his loss might actually be greater if his parents are blue-collar workers than white-collar workers.
JM: Because blue-collar workers work with their hands and bodies. If his or her parents are white-collar workers, and it’s not a brain injury, then he or she can still potentially do those jobs.
SD: Those calculations must get very complex.
JM: It can be challenging [For example,] dairy workers get housing, and sometimes part of their pay is in cattle. I didn’t know that. But that has to be factored in when you’re calculating that that dairy farmer can’t work anymore. They’ve lost their housing and part of their food for the year.
SD: Why is your forensic work growing?
JM: The economy has a great deal to do with it. There are fewer jobs out there. So, if someone sustains a loss of income, then there’s much more likelihood that they’re going to require a vocational expert to assess how much they’ve lost, because it’s not as easy to go find another job as it was 15 years ago.
SD: What’s the hardest part of the job?
JM: There are many different people with various agendas. Our goal, according to the American Board of Vocational Experts, is the truth. Oftentimes, parties in a case have opposing agendas, and not just the attorneys. The insurance company wants the case settled in their favor, or the employer just wants to keep their production levels high and their insurance rates low. So, there are so many factors involved. Our goal is to keep that path to the truth clear.
SD: What’s the best part?
JM: For somebody who is curious — and I like to think I am — it’s learning about different occupations. In many ways, the work world is becoming more specific, and people focus on performing one task very well. In our line of work, we learn about all these occupations. I don’t know everything about all occupations, but I know how to find out.
“Work” is a monthly interview feature showcasing a Vermonter with an interesting occupation. Suggest a job you would like to know more about: firstname.lastname@example.org.