The ongoing reflections here cause me pause, I must say. Is there something that I am still missing?
Yes, some attorneys and judges in Family Law are not as experienced in issues of disability as they are typically in other types of cases. I have found that my "education" of the referring attorney to be quite in-depth as well at times. And yes, we are asked to proceed with "what there is" even when elements are lacking. And sometimes the answer may be "No. I can't."
My Scope of Practice, as far as I can tell, does not encompass allowing me to present "my functional observations" when I testify (I do not do FCE's as some of us may) as a vocational/rehab expert in a court of law, regardless of the savvy level of the other involved parties. My subject estimation of their savvy has nothing to do with my qualifications, my history of cases, or my training and Code(s) of Ethics.
There are times, and this may well be one of them, when I must admit or demonstrate that I am not able to assist in the way that I would like to or have been asked to. At best, I see a slippery slope here, if not perhaps malpractice. I see a parallel here to the situation where I know full well that a certain prescribed medication probably may address a diagnosis-- having been a case manager all these years..." but I still cannot get anywhere near to the doing any actual prescribing.
In lieu, arming the retaining attorney with all the info & questions to attempt discrediting the psychologist would certainly be within my role for him/her to do. A probable enaction of a dismissal of the psych "expert" on Voir Dire may well be the outcome. Recusal for me is another fair option here when it comes to the topic of "function." So would be the change of role to that of a Fact Finder. only. At best, I see a slippery slope here, if not perhaps malpractice within the vocational "expert" role.
Furthermore, if I may testify as an expert regarding function in the court of Family Law, and proceed to show vocational options based on that, would such not open me to then think and offer that I may do likewise in any other court venue as well? Alternately, a private investigator who tapes the Evaluee "in action otherwise" may also be more fitting to present "what s/he saw" in this scenario and they are not identifying themself as a vocational expert regarding jobs thereafter.
Great discussion! Good luck, Jennifer Toles and thanks for asking.
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Bob Paré, MS, CRC, LRC, CDMS, FVE, ABVE/D
rpare@consultativerehab.comMt. Laurel, NJ. Tel: 609-531-2529
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Original Message:
Sent: 10-31-2024 16:15
From: Steve Bast
Subject: Psychologist placing restrictions on patient "Family Law Case"
I have come to view personal injury cases as having a mix of (a) rules that must never be broken and (b) no rules.
Where cases in settings like workers' comp & SSDI tend to have inflexible rules as to which methodology must be employed, cases in personal injury seem to me mostly to just call for coming up with a more persuasive assessment than the opposing experts' assessment. I am not afraid to be unconventional, as long as I can do it without breaking any of the unbreakable rules.
While I would never, for instance, voice a medical opinion, I am perfectly comfortable offering a hypothetical comparison for the trier-of-fact to consider, (making sure to clearly describe its rationale and scope). Ideally, my hypothetical would be (a) one that makes sense to the case, (b) one that is constructed to help trier-of-fact to think through the issues, and maybe even (c) one that trier-of-fact was already wishing to know more about.
If I had my druthers, I would want rock-solid objective medical evidence, as well as one or more famous medical experts ready to sign off on and agree totally with all of my positions. But I don't always get that.
-Steve Bast, MHS, CVE, CDMS, FVE, CCM, IPEC, ABVE/D, EA
Westwind Consulting, Inc.
Original Message:
Sent: 10/31/2024 1:52:00 PM
From: Robert J. Pare'
Subject: RE: Psychologist placing restrictions on patient "Family Law Case"
Hi, Steve.
Perhaps I misunderstood something here.
"...the restrictions that I observed..." Unless we are credentialed to performing a bonafide FCE, may any Voc. Expert indeed proffer such as their expert opinion regarding function? Or do we step aside to admit the non-probable and non-expert role in that portion of the findings and opinions? And then move on to offer expert opinions on the voc assessment which is based on such.
Puzzled. Thanks for a reply.
Bob
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Bob Paré, MS, CRC, LRC, CDMS, FVE, ABVE/D
rpare@consultativerehab.com
Mt. Laurel, NJ. Tel: 609-531-2529
Original Message:
Sent: 10-30-2024 21:14
From: Lynne Tracy
Subject: Psychologist placing restrictions on patient "Family Law Case"
I agree with IME and Steve's two-prong approach.
I would add that I would ask for the records, and also consider speaking with the psychologist to determine reasoning for these restrictions.
Best Regards,
Lynne Tracy, M.A., LMFT, CRC, ABVE/D
Vocational Counseling
P.O. Box 8333, Calabasas, CA 91372
Direct: (818) 880-6460
FAX: (818) 880-6494
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Original Message:
Sent: 10/30/2024 6:08:00 PM
From: Steve Bast
Subject: RE: Psychologist placing restrictions on patient "Family Law Case"
In addition to IME, (or in lieu of it if you can't get one), then one option may be to assume that you are not the only skeptic in the room... To offer two scenarios:
- Here are the results of my assessment when I assume that the restrictions assigned by Dr. Soandso apply now and into the future, and
- Here are the results when it is assumed that the restrictions I observed apply.
I would make sure to explain that you are taking this approach because Dr. Soandso did not offer a reasonable foundation for his opinions, and because there appears to you to be a disparity between those limitations and Ms. Smith's actual daily life. Sometimes, (it seems to me), you have to trust that the trier-of-fact to figure it out.
-Steve Bast, MHS, CVE, CDMS, FVE, CCM, IPEC, ABVE/D, EA
Westwind Consulting, Inc.
Original Message:
Sent: 10/30/2024 5:49:00 PM
From: Ellen Darrow Fernandez
Subject: RE: Psychologist placing restrictions on patient "Family Law Case"
IME
Original Message:
Sent: 10/30/2024 5:45:00 PM
From: Jennifer B Toles
Subject: Psychologist placing restrictions on patient "Family Law Case"
Good evening,
I recently conducted a vocational evaluation on a spouse who has been a homemaker for about 10 years. Examples of duties of a homemaker are picking up and dropping off of the children, social activities about 5 days a week, ability to run a household adequately, hosts social gatherings, transport children to and from school, as well as home schooling one child. The individuals treating psychologist provided a statement indicating a synopsis of restrictions:
- Ability to go on short term disability when needed
- Low stess repetitive work
- Less than occasional interaction with the public
- Frequent breaks in the work place
- Part time work only with adjustable deadlines
- Requires a silent private work area
The psychologist also stated none of these work limitations translate to parenting or current everyday activities. With all of these restrictions (I have not included all) it seems as if competitive work is futile. I never had a psychologist or any provider limit their patient in such a way is there any way to further understand the psychologists methodology. To me it seems very limiting especially when the spouses current social activities are so vast. Any help would be greatly appreciated!
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Jenn Toles MS CRC CLCP CCM
Guided Life Care Planning Services
info@guidedlifecare.com
Lithia, Florida
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