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by Derrick Bailey, Sumrell Sugg, P.A.

Late last summer, the North Carolina Supreme Court published an opinion which touched on several immunity doctrines. In particular, the Court formally adopted legislative immunity as an individual capacity defense to State-based claims. In so doing, the Court drew not only from federal immunity doctrines, but also from doctrines unique to the State.

            A Small-Town Fire Department and a Local Election

The underlying case involved allegations of fraud, a municipal election, and the discernment of a mayor’s functions during town council meetings. Since 1954, the Providence Volunteer Fire Department (“Providence”) provided fire suppression services for portions of the Town of Weddington and the surrounding areas. Through its years of service, Providence’s fire station began to deteriorate, and in 2013, Providence and Weddington began discussing ways to finance the necessary renovations.

Coincidentally, 2013 was an election year, and several candidates, both for town council and for mayor, publicly spoke in favor of the renovations and on the need for Providence to continue providing fire suppression. William Deter, who was running for mayor, was such a candidate.

In October 2013, while the election campaigns were still ongoing, Providence and Weddington entered into an agreement that, when framed in simplest terms, provided that Providence would sell the station to Weddington, which in turn would finance the necessary renovations and lease it back to Providence for one dollar per year. Weddington also agreed to pay Providence on a monthly basis, for a minimum period of 10 years, for the provision of fire suppression services.

The agreement provided that it could only be terminated “for cause” which it defined as “the failure of either party to perform the material provisions of [the agreement] . . . include[ing], but not limited to, the failure to meet the required service level and transparency requirements[.]” The agreement additionally contained a liquidated damages clause which entitled Providence to $750,000.00 if Weddington terminated the agreement without cause. It further stated that Weddington would remain responsible for renovation costs if there was a contractual breach prior to the transfer of the station’s title.

In November 2013, after the agreement between Providence and Weddington, Deter was elected as the Town’s mayor. Providence alleged that Deter campaigned, in part, by publicly advocating for the fire department’s continued existence while secretly conspiring with certain council candidates to find a way terminate the agreement for cause, upon election, so that the Town could gain title to the station without having to pay liquidated damages.

Pursuant to the terms of the agreement, Providence transferred the fire station to Weddington via quitclaim deed on August 20, 2014. On April 28, 2015, following the results of a commissioned fire study, the town council voted to terminate the contract with Providence with the stated basis being Providence’s financial instability and inability to provide adequate assurances that it could meet its obligations under the contract. Mayor Deter did not cast a vote, but scheduled the meeting, called the vote, and allegedly encouraged the council members to terminate the agreement.

Providence filed suit against Weddington and Deter on March 27, 2018, alleging, inter alia, that the defendants fraudulently induced it into executing the agreement and subsequent quitclaim deed.

Deter moved to dismiss, asserting legislative, qualified, and public official immunity. On  November 27, 2018, the trial court denied Deter’s motion, holding that he was not entitled to immunity, at least at that early stage in the proceedings. Deter gave notice of interlocutory appeal given the substantial nature of the right associated with the immunity doctrines. On December 31, 2020, the Court of Appeals reversed, holding that Deter’s actions were legislative in nature and that he was entitled to the corresponding immunity. Providence petitioned the State Supreme Court for discretionary review, which it granted on August 10, 2021.

The Court’s Analysis

On August 22, 2022, the Supreme Court unanimously affirmed, adopting the Fourth Circuit’s legislative immunity test, which provides that an official is entitled to immunity if:  (1) he was acting in a legislative capacity at the time of the alleged incident; and (2) the acts were not illegal. Providence Volunteer Fire Dep’t, Inc. v. Town of Weddington, 382 N.C. 199, 220 (2022).

 

The Court followed the federal courts’ analysis as to the first element, thereby concluding that immunity should not limited to members of the General Assembly, but rather, should extend to all regional and local legislators because their ‘“discretion should not be inhibited by judicial interference or distorted by the fear of personal liability[.]”’ Providence, 382 N.C. at 220 (quoting Bogan v. Scott-Harris, 523 U.S. 44, 52 (1998)). The Court similarly agreed that ‘“officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions.”’ Id. at 221 (quoting Bogan, 523 U.S. at 55).

During oral argument, however, the Court struggled with how to evaluate the second element as there was no authority clearly defining what constitutes an “illegal act” within the context of the test. Ultimately, the Court resolved this question by looking to Epps v. Duke Univ., 122 N.C. App. 198, 204-05 (1996), and incorporating the public official immunity standard, noting that an “official may, however, be held liable in his or her individual capacity if his or her actions were malicious, corrupt or outside the scope of his or her official duties, even if they were legislative in nature.” Providence, 382 N.C. at 220 (emphasis added).

In adopting the public official immunity standard, the Court indirectly addressed a separate, unraised issue, namely whether there was legal authority to justify a State-based version of the doctrine. The issue was not directly before the Court as “Providence ha[d] not contended that [the Court] should refrain from recognizing the doctrine of legislative immunity.” Id.

While there are a handful of State statutes that acknowledge the doctrine, there are none that authorize it. By contrast, federal legislative immunity is rooted in the Speech and Debate Clause of the United States Constitution, which provides that “Senators and Representatives shall . . . be privileged . . . for any Speech or Debate in either House[.]” U.S. Const. Art. I, § 6, Cl 1. The closest North Carolina has to a constitutional equivalent is found in Art. II, § 18, which states that “[a]ny member of either house may dissent from and protest against any act or resolve which he may think injurious to the public or to any individual” by having “the reasons for his dissent entered into [a] journal” that is to be made publicly available after the adjournment of the General Assembly. The Oxford Commentaries on the North Carolina Constitution, co-authored by Chief Justice Newby, explained that the purpose of this section was to create a public record and hold elected officials accountable to their constituents rather than insulate them. Hence, State-based legislative immunity did not have as strong a constitutional foundation as its federal counterpart.

Instead of relying on express constitutional or statutory provisions, the Court invoked the familiar language of public official immunity; “a derivative of sovereign immunity,” Toomer v. Garrett, 155 N.C. App. 462, 481 (2002), and “an established principle of jurisprudence, resting on grounds of sound public policy[.]” Smith v. Hefner, 235 N.C. 1, 6 (1952). In so doing, the Court simultaneously resolved both the issue of the doctrine’s legitimacy and its own reservations regarding adoption of the Fourth Circuit’s test.

Finally, while some of the conduct that Providence alleged gave rise to a claim of fraud occurred before Deter was elected, the Court was quick to note that it “would not have resulted in any injury to Providence in the absence of the legislative acts,” establishing that immunity is applicable if the alleged harm would not have occurred but for the legislative acts.  Providence, 382 N.C. at 221

Key Takeaways

In summary, State-based legislative immunity is not absolute, like its judicial or prosecutorial counterparts; but rather is more akin to, and subject to the same limitations as, public official immunity. That being said, the limited the scope of legislative immunity could, in certain circumstances, have the additional effect of eliminating a plaintiff’s ability to assert an alternative claim directly under the North Carolina Constitution because legislative immunity merely presents additional requirements to State torts rather than operating as a complete bar. See Debaun v. Kuszaj, 238 N.C. App. 36, 40 (2014). Moreover, the but-for standard extends to all levels of government, as long as the officials are engaged in ‘“quintessentially legislative”’ acts. Providence, 382 N.C. at 221 (quoting Bogan, 523 U.S. at 55).

By Robert Young, Trisha Barfield, and Jeffrey Harnden, Elon Law Student

North Carolina courts generally adhere to the notice pleading standard set forth in Rule 8(a)(1) of NC Rules of Civil Procedure allowing leniency in the level of particularity required by a litigant’s pleading so long as the parties are placed on notice of the transactions and occurrences giving rise to the litigant’s claim. The general standard for notice pleading as it applies to tort law requires that a litigant allege that a tortfeasor’s acts fulfill each of the elements of a given tort. For example, a claim for common law negligence requires the plaintiff to allege a (1) a legal duty; (2) a breach of that legal duty; and (3) an injury proximately caused by the defendant’s breach of duty.

Under the notice pleading standard, one would presume that a plaintiff’s negligence claim satisfies Rule 8(a)(1) through factual allegations evidencing that the defendant had a specified legal duty, breached the duty by an act or omission as described, and that the defendant’s breach of duty proximately caused a specified injury. Negligence claims are customarily pled this way in typical construction defect litigation, particularly when a contractor defendant brings counterclaims or third-party claims for indemnification and/or contribution against a subcontractor and/or manufacturer. After all, due to the often elusive nature of the true cause of construction defects, or the likelihood of multiple causes of a construction defect, it is difficult for a party to know and plead detailed facts at the early pleading stage. Prior to discovery, only the most obvious manufacturing defects would be known to the parties, and the exact methods and workmanship employed by a subcontractor may be completely unknown to the plaintiff, at least during the pleading stage. Given these practical issues, notice pleading seems an appropriate and reasonable standard.

However, the Court of Appeals appears to have recently applied a heightened notice pleading standard to third-party claims for indemnity and contribution based on underlying negligence in Ascot Corp., LLC v. I&R Waterproofing, Inc., 2022-NCCOA-747, 881 S.E.2d 353, 358, ___N.C. App. ___ , ___ (N.C. Ct. App. November 15, 2022). In Ascot, the residential construction general contractor Ascot Corp. contracted with I&R Waterproofing to waterproof a basement by installing a TUFF-N-DRI barrier system manufactured by Tremco. Id. Ascot separately contracted with Tanglewood to landscape the property. Id. Approximately two years after construction, water intrusion was discovered in the basement and Ascot independently paid for the repair of the water intrusion. Id. Ascot filed suit to recover its costs against I&R asserting claims for breach of contract, breach of implied warranty of habitability and good workmanship, negligence, and unfair and deceptive trade practices. Id. Subsequently, I&R filed a third-party complaint against both the landscaper, Tanglewood, and Tremco, the manufacturer of the waterproofing barrier, asserting claims for “compensatory damages and contribution” should I&R be liable to Ascot. Id.

I&R’s third-party complaint alleged that Tremco had a duty to manufacture the water barrier in the manner of a reasonably prudent manufacturer, that Tremco breached such a duty by negligently manufacturing the barrier, and that as direct and proximate result of Tremco’s negligence I&R had suffered damages. Id. On its face, it appears that I&R properly alleged negligence against Tremco to assert a common law indemnity and contribution claim per a notice pleading standard. However, the Court of Appeals affirmed the trial court’s dismissal of I&R’s common law indemnity claim for failure to state a claim. Specifically, the Court held:

The allegations set forth in I&R's complaint, including all incorporated allegations, fail to allege facts sufficiently specific to give information of the particular acts complained of. I&R's general allegation that "Tremco was negligent in the production, design, manufacture, assembly, and/or inspection of the Tremco Barrier System, and in breach of its duties to I&R" was not sufficiently specific and thus does not set out the nature of I&R's demand sufficiently to enable Tremco to prepare its defense. Id. at 365.

The Court relied on the same reasoning to affirm the dismissal of I&R’s contribution claim based on underlying negligence against Tremco. Id. The Court’s ruling appears to require more than mere notice pleading. Interestingly, the Court cited a case decided prior to the adoption of the Rules of Civil Procedure in affirming the dismissal. Id. The Court explained that “…a general allegation without such particularity does not set out the nature of plaintiff's demand sufficiently to enable the defendant to prepare his defense." Id. at 365, citing, Stamey v. Rutherfordton Elec. Membership Corp., 247 N.C. 640, 646, 101 S.E.2d 814, 819 (1958).

In contrast, the Court held that I&R sufficiently pled negligence to support an indemnity implied in law claim against Tanglewood, the landscaper. Id. I&R alleged that Tanglewood failed to incorporate proper drainage mechanisms in violation of the NC Residential Code, failed to install pipe of a correct length, and failed to connect certain drainpipes. Id. I&R’s claim against Tremco may have survived a Rule 12(b)(6) motion if it included more detailed allegations about Tremco’s failures and/or omissions during the design or manufacturing process. In other words, it is simply not enough to allege a conclusory allegation of negligence even when incorporating other allegations, which may present challenges for the pleader when the specific facts giving rise to negligence are not apparent at the pleading stage.

Attorneys asserting indemnity and contribution claims based on underlying negligence should read the Ascot case as a tale of caution. It is not certain whether it was only the phrasing of I&R’s claim against Tremco that led to dismissal, or whether the Court analyzed the claim relative to I&R’s more specifically pled underlying negligence against Tanglewood. Regardless, the lesson here remains that mere notice pleading pursuant to Rule 8(a)(1) may not be sufficient and pleading negligence to support indemnity and contribution claims in these cases requires more factual detail to enable a defendant to prepare his or her defense. As courts will certainly differ in considering the sufficiency of indemnity and contribution claims, attorneys should avoid pleading only legally-conclusory terms with a general incorporation of other allegations and include as much factual support as possible even when lacking knowledge of the full extent of the alleged transactions or occurrences. With these considerations in mind, attorneys can “waterproof” their pleadings from a dismissal of their claims.

By Jeff MacHarg and La-Deidre Matthews

Every litigant wants their attorneys’ fees, but actually recovering them in North Carolina is rare.  Fee recovery must be authorized by rule or statute, and fees must be “reasonable.” 

As several recent Business Court rulings remind us, when it comes to proof of “reasonableness,” more is better. 

A refresher on the basics:  A party seeking fees has the burden of establishing both entitlement and reasonableness.  Reasonableness is within the Court’s discretion and is determined based on a (non-exhaustive) list of factors.  The baseline is set by the factors in Rule 1.5 of the North Carolina State Bar’s Revised Rules of Professional Conduct, which prohibits fees that are “clearly excessive.”  These factors often overlap with those in statutes authorizing fees.  See N.C. Gen. Stat. § 6-21.6 (listing 13 “reasonableness” factors).

The list below combines factors from Rule 1.5, statutes and recent cases.  Parties seeking fees should submit proof of as many of these factors as possible.

·       The amount in controversy;

·       The results obtained;

·       The reasonableness of the time and labor expended;

·       The billing rates;

·       The fee or rates customarily charged in the locality for similar legal services;

·       The novelty and difficulty of the questions raised in the action;

·       The skill required to perform properly the legal services rendered;

·       the experience, reputation, and ability of the lawyers performing the service;

·       The time limitations imposed by the client or by the circumstances;

·       The nature and length of the professional relationship with the client;

·       Timing and amounts of settlement offers including those prior to the institution of the action, as compared to the result;

·       Offers of judgment pursuant to Rule 68 of the North Carolina Rules of Civil Procedure as compared to the result;

·       The terms of the business contract;

·       Whether the fee is fixed or contingent; and

·       Whether any interested party objects or opposes.

See N.C. Gen. Stat. § 6-21.6;  Chambers v. Moses H. Cone Mem'l Hosp., 2022 NCBC 61, ¶ 25 (N.C. Super. Ct. Oct. 19, 2022) (Conrad, J.) (assessing reasonableness of fees based on Rule 1.5 of the Revised Rules of Professional Conduct and other practical considerations). 

Notably, several of these factors are completely within the parties’ control, particularly those regarding settlement.  When a potential fee recovery is in play, parties need to know that settlement offers and demands, especially early ones, could end up helping (or hurting) a fee request that comes months or years later.  As a result, all settlement offers, demands, and positions should be documented since settlement positions often dictate (and arguably justify) the vigorousness of the litigation that follows. 

The following orders from 2022 provide other and further insights into proving reasonableness of fee requests.

Miriam Equities, LLC v. LB-UBS 2007-C2 Millstream Road, LLC, No. 19 CVS 8523, 2022 WL 2802526 2022 NCBC Order 54 (N.C. Super. Ct. July 08, 2022) (Earp, J.) involved a contract dispute where the contract allowed the prevailing party to recover their fees (as permitted by N. C. Gen. Stat. § 6-21.6).  When the defendant prevailed at summary judgment, it sought fees under the contract. 

Even though there was no opposition filed, Judge Earp still had to assess the defendant’s proof of reasonableness.  The defendant supported its fee petition with invoices, a good first step.  But the invoices had defects.  Judge Earp first commented (unfavorably) about the difficulty in trying to assess reasonableness of the work when time entries are “block billed,” i.e., different tasks are billed as a single block of time.  Additionally, some of the time entries were completely redacted, leaving no information on which to determine reasonableness. 

As for rates, the defendants did not support this fee petition with an affidavit.  Instead, the defendant relied on an affidavit its counsel submitted several months prior as part of a fee petition for a discovery sanction.  But the prior affidavit was incomplete.  It did not have rate or experience information for all of the legal professionals. 

As for hourly rates, again, the evidence was insufficient.  Much like the prevailing party in Vanguard Pai Lung (discussed below), defendant’s (prior-filed) supporting affidavit was from the lead attorney himself.  Although an attorney testifying about reasonableness of their own rates is evidence of reasonableness, one might question whether it is the most persuasive evidence.  Judge Earp considered the affidavit, but also took judicial notice of customary rates of North Carolina attorneys as reported in other attorney fee cases.  In the end, Judge Earp concluded that the rates requested in this case were somewhat higher.  She, therefore, reduced the requested rates by 15-25% to bring them more in line with other evidence of customary rates.

The above issues of proof – all of which could have been corrected or at least mitigated – resulted in roughly $100,000 in fee reductions.  Surely a balance must be struck, but in this instance more and better proof may have resulted in fewer reductions. 

Vanguard Pai Lung, LLC v. Moody, 2022 NCBC 48 (N.C. Super. Ct. Aug. 31, 2022) (Conrad, J.), also illustrates several proof and other considerations when seeking attorney’s fees.  Before even getting to “reasonableness,” parties must first apportion requested fees to only those claims that allow for fee recovery.  In this case, there were two plaintiffs and two dozen claims and counterclaims.  The jury returned a verdict in favor of the plaintiffs on several claims, but only one claim, embezzlement, allowed for recovery of fees.  See N.C. Gen. Stat. § 1-538.2(a).  Also, although the two plaintiffs shared the same counsel, only one of them prevailed on the embezzlement claim. 

Citing authority that allows recovery of all fees when fee and non-fee claims are “inextricably intertwined,” plaintiffs, jointly, sought the full $2.5 million incurred in the case as a whole.  They argued that segregation between plaintiffs and specific claims or counterclaims was not “practically possible.”  Judge Conrad disagreed. 

Judge Conrad pointed out that only one of the two plaintiffs asserted the embezzlement claim, so only one of them was entitled to any fees.  Judge Conrad also found that the claims were not so inextricably intertwined that it would be impossible to apportion fees to embezzlement over other claims and defense work.  To prove the point, Judge Conrad noted several distinct jury findings on claims that had nothing to do with embezzlement. 

As for reasonableness of work and time spent, Judge Conrad found that plaintiffs’ evidence was insufficient.  Instead of submitting bills and time entries (which plaintiffs instead offered to provide for in camera review), plaintiffs provided affidavits from counsel of record.  These affidavits included charts summarizing total hours billed by timekeeper.  But, as Judge Conrad explained, without seeing time entries, the Court cannot assess the reasonableness (or unreasonableness) of any of the work.  

As for rates, again, affidavits from counsel of record were not sufficient to justify the hourly rates of some of the out-of-state attorneys.  In particular, Judge Conrad questioned the reasonableness of hourly rates of the California lawyers from Perkins Coie LLP, which were nearly double those of able local counsel at Womble Bond Dickenson LLP. 

Ultimately, Judge Conrad denied the motion without prejudice to refile after post-trial motions and appeals.  This opinion, of course, provides a cautionary roadmap for counsel to ensure fees are properly apportioned and to ensure that  they submit their best supporting evidence with the motion.   

Erwin v. Myers Park Country Club, Inc., 2022 NCBC Order 32, (N.C. Super. Ct. June 9, 2022) (Robinson, J.) is instructive for a different and practical reason: fee awards are never guaranteed.  In this case, the party seeking fees seemed to do everything right.  Its fee petition was supported by detailed affidavits from both counsel of record and a reputable local attorney.  These affidavits ticked off many of the factors set forth above.  There were no issues with block billing.  All the relevant time entries were organized, assessed, and submitted.  But, as was reported in a previous post, Judge Robinson was not persuaded that the time spent was reasonable.  After a painstaking, task-by-task review of every single time entry, Judge Robinson exercised his discretion and awarded only 30% of the fees that were requested.  One important takeaway from this ruling is that even with a statutory mandate and seemingly the best proof a party can muster, fees are never a guarantee.  That’s because reasonable minds can always differ as to what is “reasonable.” 

Bucci v. Burns, 2022 NCBC Order 63, (N.C. Super. Ct. Nov. 17, 2022) (Conrad, J.) reiterates many of the points of above, and one more: when fees are authorized by a remedial statute, parties should request fees incurred in preparing their fee petition, i.e., fees on fees.

In this multi-party case, two of the defendants prevailed at summary judgment on some (but not all) claims asserted by certain two of seven plaintiffs.  These defendants successfully argued that the subject claims should never have been brought by these plaintiffs because, contrary to the allegations in the pleadings, these claims were never supported by any actual evidence. 

As the prevailing parties on this subset of claims, these defendants sought fees under N.C. Gen. Stat. § 6-21.5, which allows recovery of attorney’s fees caused when a party prevails on claims that were brought despite “the complete absence of a judiciable issue of either law or fact.”

In assessing these fee petitions, Judge Conrad again addressed issues of apportionment and proof.  On apportionment, (i.e., how to allocate fees caused only by the nonjusticiable claims when other claims were justiciable), the moving defendants asked the Court to simply divide the total fees incurred by the total number of plaintiffs (seven) and charge the losing plaintiffs’ their share.  Judge Conrad disagreed, explaining that this type of simple allocation would be inequitable and contrary to N.C. Gen. Stat. § 6-21.5, which allows only those fees caused by the improper filing.  Judge Conrad found that the defendants would have incurred most of the fees in defending the other claims anyway.  Instead, proper apportionment could only be had with careful review of the evidence to determine which fees were caused by the nonjusticiable claims.  But the defendants’ evidence was deficient, making it impossible to identify (e.g. by time entry) what work was caused by the nonjusticiable claims. 

Although invoices were submitted, much of the time was block-billed and aggregated.  Defendants also made no effort to try to identify and allocate time caused by the particular nonjusticiable claims.  This record evidence left apportionment within the Court’s “ample discretion,” which Judge Conrad exercised, “cautiously.” 

Judge Conrad used what information could be gathered from the invoices, and not surprisingly, awarded only a small fraction of the total fees that were requested.  For one defendant, Judge Conrad allowed recovery of approximately 50 of the 700 total hours spent on the case.  For the other defendant, whose time entries were even more inscrutable for this purpose, Judge Conrad allowed recovery of approximately 30 of 1,200 total hours spent.   Neither defendant requested or even hoped for a total recovery, but different evidence, with no block billings and detailed time entries may have made a difference. 

This Bucci v Burns opinion is remarkable for an additional reason: one of the two moving defendants requested fees incurred in preparing their fee motion, i.e., fees on fees, and Judge Conrad granted the motion (in part).  Judge Conrad acknowledged that fee petitions take time and can be expensive.  Disallowing fees on fees that are awarded under a remedial statute would have a “deterrent effect” on seeking fees in the first place, which in turn would undermine the purpose of the statute, N.C. Gen. Stat. § 6-21.5.  Since the defendant’s original fee petition was granted only in part Judge Conrad allowed only a portion (25%) of the fees incurred in preparing the fee petition.  The defendant who did not seek fees on fees was awarded nothing.  Several lessons can be taken from this aspect of the ruling including: if fees are available under a remedial statute, a requesting party should seek fees on fees.

If fees are in play, here are some takeaways:

• Apportion judiciously.  Know which claims and defenses give rise to fees as early as possible.  Ensure time entries are clear so that fees can be apportioned.  When it comes time to seek your fees, apportion them to claims that allow fee recovery.  If you don’t apportion, the Court will exercise its discretion with caution.
• Know the “reasonableness” factors.  These factors could impact settlement strategy, timing of offers, and timekeeping habits.
• Document all settlement discussions.  All settlement discussions, particularly early or pre-litigation offers, will inform the vigorousness of subsequent litigation.   
• Submit your “best” affidavit(s).  If circumstances permit, consider engaging a lawyer outside your firm to assess the case, review billing records, tasks and time spent, and provide affidavit testimony to the Court on these matters including reasonableness of rates, other market rates, and time spent. 
• Submit bills with detailed time entries.  Without time entries, the Court cannot assess the reasonableness of the time spent.  Time entries can be in the form of an authenticated summary of relevant entries or actual bills. 
• Don’t block bill.  Time entries should ascribe time to each task.  Affidavits can be used to provide evidence that may not included on the bills.
• Be realistic.  Even a well-supported or unopposed motion may be reduced.  This is yet another factor to consider when investing time to marshal and present evidence to support a fee petition.  
• Seek fees on fees.  If a remedial statute is involved, the moving party should seek fees on fees.  But, again, be realistic. 

By Michael A. Fryar, M.S., CRC, RN, CCM, CLCP, QRP  and John J. Humphreys, B.S., M.S., CRC, Inquis Global

INTRODUCTION

Severe injuries such as Spinal Cord Injuries, Amputations, Burns, Traumatic Brain Injuries and/or other Polytrauma circumstances can create very challenging and life-long consequences for an individual.  In addition to the immediate medical and functional consequences derived from these types of injuries/diagnoses, such persons are often moving through difficult psychological processes to adapt emotionally to the sudden cognitive and/or physical changes which have occurred.  More often than not, these types of significant injuries will immediately disrupt the pursuit of work and can lead to extended vocational displacement and reliance upon disability benefit systems. Vocational rehabilitation services can be provided to directly assist with the assessment, planning and overall work adjustments necessary to support re-engagement of appropriate employment endeavors. This article will explore the overall vocational rehabilitation process necessary to appropriately support persons who have experienced severe injuries and the inherent benefits in pursuing such objectives. Also, a hypothetical case scenario will be outlined for illustrative and educational purposes.

VOCATIONAL REHABILITATION  & SEVERE INJURIES 

As discussed in Foundations of Forensic Vocational Rehabilitation (Robinson, 2014), the overall vocational rehabilitation process is composed of distinct phases: Evaluation, Planning, Treatment and Termination. The Evaluation Phase typically begins through an intake interview with the individual by the Vocational Rehabilitation Counselor. The interview will likely explore relevant physical, medical, educational, vocational, psychosocial, economic and other personal factors.  Next, input through additional assessments, consults, and/or the detailed analysis of past treatment records will be pursued to establish the necessary medical and/or psychological foundation necessary to begin the process of developing an appropriate Individualized Vocational Rehabilitation Plan (IVRP) for the person.  Such plan development may include the completion of standardized testing (i.e., intelligence, aptitudes, interests, etc.) by a Vocational Rehabilitation Counselor or other qualified healthcare professionals, a work transferability analysis, vocational research and/or career counseling.  A formal individualized plan is established once the Vocational Rehabilitation Counselor has collected necessary and sufficient data/information to establish appropriate objectives to reach vocational, or potentially avocational, goals for the individual. After the Planning Phase is complete, the Treatment Phase of the overall vocational rehabilitation process begins. This phase involves the direct delivery of services to reach the educational and/or vocational goals established.  Essentially, it is the unfolding of the individualized plan through the completion of designated objectives to reach educational and/or career goals. The final phase in the standard vocational rehabilitation process includes the termination of services (i.e., the Termination Phase), which is hopefully completed after the establishment of successful employment by the individual.

Past national research (Duta et al., 2008) identified the following job placement statistical outcomes for persons after the receipt of vocational rehabilitation services:

“Sixty-two percent of the clients in this study were gainfully employed after receiving vocational rehabilitation services. Individuals with sensory/communicative impairments had the highest success rate (75%) compared to 56% for the physical impairments group and 55% for those with mental impairments.”

Historically, when it comes to the vocational rehabilitation outcomes of persons with severe injuries and disabilities, the published literature describes one of the major barriers as the appraisal of earnings available through paid employment, compared to established disability-related benefits (Robinson, 2014 & Duta et al., 2008). Specifically, Dr. Robinson points out the following (Page 7):

“A major confounding issue in evaluating the effectiveness of vocational rehabilitation services, which has little to do with the quality or type of the vocational rehabilitation intervention, is systems of financial compensation that reside outside of the vocational rehabilitation delivery systems. Examples include disability-related compensation benefits offered through workers’ compensation programs, Social Security Disability Insurance (SSDI), or veteran’s compensation benefits related to service-connected impairments.”

However, as to be discussed, the overall benefits of work can extend far beyond the economic gains received by the individual.

BENEFITS OF WORK

The International Classification of Functioning, Disability and Health (ICF) of the World Health Organization (WHO) defines employment as “… engaging in all aspects of work, as an occupation, trade, profession or other form of employment, for payment or where payment is not provided, as an employee, full or part time, or self-employed”.  A return to gainful employment after experiencing a severe injury can help individuals achieve economic self-sufficiency, attain personal growth, adjust to their disability, increase social interactions, and improve life satisfaction, health and well-being. (Trenaman et al., 2014).

Relative to the benefits of work, Ullah et al. (2017) completed a review of research regarding adults with Spinal Cord Injuries (SCI).  Based upon their empirical findings, three common themes or benefits from returning to work after such a severe neurological injury were identified.

The first theme or benefit identified was the re-development or re-defining of self. The individuals of the study had strong motivation to establish a career following the injury. Through such motivated vocational activities, they were able to gain confidence and re-establish a sense of control over their environments and lives. Moreover, reengagement of work helped these persons recognize inherent abilities and shifted their focus away from their newly acquired functional/neurological limitations or disabilities.

The second identified benefit derived from working after a Spinal Cord Injury was it promoted re-establishment of personal roles within the community.  Specifically, returning to work facilitated much needed personal opportunities for the individuals to exit their homes, interact socially, perform purposeful activities, and directly contribute to their communities in a meaningful way.

The third and final theme or benefit determined from the research concerned autonomy, and in particular, the finding that a career affords individuals with severe injuries the opportunity to regain overall self-sufficiency and personal autonomy for their lives. In summary, multiple benefits arise from the performance of work for persons with severe injuries and disabilities which extend well beyond the receipt of a paycheck.

WORKPLACE ACCOMODATIONS

Individuals who attempt employment after acquiring a severe injury often face a variety of barriers which can significantly hamper or prevent a successful return to and/or the maintenance of competitive employment. These barriers, whether perceived or actual, can often be minimized or eliminated through the implementation of effective workplace/job accommodations. The U.S. Department of Labor (USDOL) defines workplace accommodation as follows:

“A job accommodation is an adjustment to a job or work environment that makes it possible for an individual with a disability to perform their job duties. Accommodations may include specialized equipment, modifications to the work environment or adjustments to work schedules or responsibilities. Not all people with disabilities (or even all people with the same disability) need the same accommodation. For example, a job applicant who is deaf may need a sign language interpreter during the job interview; an employee who is blind or who has low vision may need someone to read information posted on a bulletin board; and an employee with diabetes may need regularly scheduled breaks during the workday to monitor blood sugar and insulin levels.”

Based upon the Americans with Disabilities Act (ADA, Title-1), an employer must provide the  reasonable accommodation(s) necessary for a qualified individual with a disability to have equal opportunity to acquire and successfully perform the essential functions of their job to the same extent as their nondisabled co-workers. According to the ADA, a reasonable accommodation should not cause the employer undue hardship, relative to their business operations.

In their systematic review regarding job accommodations, return to work and job retention for persons with physical disabilities, (Wong et al., 2021) reaffirmed while job accommodations are critical to ensuring equal access of employment for persons with disabilities, a few primary issues or concerns from employers can directly hinder the process. The first major issue the employers relayed concerned their lack of understanding job accommodations and how to effectively implement such to meet the needs and requirements of their employees. To address this employer concern, the Job Accommodation Network (JAN), a service of the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP), is available to provide expert and confidential guidance regarding workplace accommodations for employers and employees free of charge.

The second concern identified by the employers within the research (Wong et al., 2021) pertained to the cost of job accommodations. However, based upon a 2019 employer survey by the Job Accommodations Network (JAN), the polled employers indicated approximately 56% of the accommodations provided did not have a cost to implement, and the remaining typically had a per occurrence expense of less than $500.00. Moreover, the surveyed employers explained the benefits of providing workplace accommodations outweighed the costs and included employee retention, improved productivity, increased morale, reduced workers compensation costs, and increased workplace diversity.

In the authors’ experiences, proactively providing and/or communicating relevant information, data and resources to employers regarding reasonable accommodations could serve to increase overall labor market opportunities for persons with severe injuries and disabilities.

TELEWORK

One possible employment avenue to consider for the accommodation of persons with severe injuries would include telework career opportunities.  Job placement into likely positions and with employers allowing, or actually preferring, their employees work from home could serve to remove environmental obstacles and effectively provide greater personal flexibility. Such vocational flexibility could improve the employee’s ability to attend medical appointments, accomplish medical treatments and/or manage daily matters such as bowel and bladder programs and other activities effectively from an accessible home. Due to the labor market impacts of COVID-19, an increasing prevalence and acceptance of telework has been observed within the national economy, which is a fortunate circumstance for individuals with severe injuries.

Relative to this matter, empirical research completed by Dingel and Neiman (2020) included direct evaluation and classification of occupations which could be accomplished remotely by an employee.  Specifically, the researchers analyzed data from the O*NET database, as well as survey findings from the Work Context Questionnaire and the Generalized Work Activities Questionnaire, in relation to the Standard Occupational Classification (SOC) structure established by the United States Department of Labor (USDOL). The researchers concluded 37 percent of national jobs can plausibly be performed from home.  Additionally, the researchers explained:

“There is significant variation across occupations managers, educators, and those working in computers, finance, and law are largely able to work from home. Farm, construction, and production workers cannot. Workers in occupations that can be performed at home typically earn more. If we assume all occupations involve the same number of hours of work, the 37 percent of US jobs that can plausibly be performed at home account for 46 percent of all wages.”

Specifically, based upon Dingel and Neiman’s research, the following percentage share of jobs arranged within their associated greater occupational grouping could plausibly be performed at home:

Computer and Mathematical Occupations	1.00
Education, Training, and Library Occupations	0.98
Legal Occupations	0.97
Business and Financial Operations Occupations	0.88
Management Occupations	0.87
Arts, Design, Entertainment, Sports, and Media Occupations	0.76
Office and Administrative Support Occupations	0.65
Architecture and Engineering Occupations	0.61
Life, Physical, and Social Science Occupations	0.54
Community and Social Service Occupations	0.37
Sales and Related Occupations	0.28
Personal Care and Service Occupations	0.26
Protective Service Occupations	0.06
Healthcare Practitioners and Technical Occupations	0.05
Transportation and Material Moving Occupations	0.03
Healthcare Support Occupations	0.02
Farming, Fishing, and Forestry Occupations	0.01
Production Occupations	0.01
Installation, Maintenance, and Repair Occupations	0.01
Construction and Extraction Occupations	0.00
Food Preparation and Serving Related Occupations	0.00
Building and Grounds Cleaning and Maintenance Occupations	0.00

In addition, Salon et al. (2022) empirically investigated telework prevalence and future projections after the pandemic through a national survey of adults and concluded the following:

“Analyzing a nationally representative panel survey of adults, we find that 40–50% of workers expect to telecommute at least a few times per month post-pandemic, up from 24% pre-COVID. If given the option, 90–95% of those who first telecommuted during the pandemic plan to continue the practice regularly. We also find that new telecommuters are demographically similar to pre-COVID telecommuters. Both pre- and post- COVID, higher educational attainment and income, together with certain job categories, largely determine whether workers have the option to telecommute.”

In summary, telework options appear to be a growing employer trend within our national economy, which could assist persons with severe injuries during their pursuit of an appropriately planned return to employment.

CASE SCENARIO

The following hypothetical case scenario for a person with a severe injury is offered for educational and illustrative purposes:

• o   Paraplegia (Young Adult)

Larry Smith, a 21-year-old male, sustained a complete Spinal Cord Injury (i.e., Paraplegia) during a motor vehicle accident. After the accident, he required a manual wheelchair for mobility, but had full range of motion and strength within his upper extremities.  He had to self-catheterize multiple times per day due to his neurogenic bladder, and he needed to follow a regular bowel program every other day. 

At the time of the Spinal Cord Injury, Larry was set to enroll into his second year of college with intended pursuit of a major for Chemistry. He had planned to complete a pre-medical school academic track. Due to the necessary hospitalization period and rehabilitative process, Larry withdrew from college. Approximately one year after the accident, he reported being very depressed and anxious about his future, especially his career. The family hired a private Vocational Rehabilitation Counselor to assist Larry.

The Vocational Rehabilitation Counselor completed an initial assessment with Larry, which was followed by standardized testing to determine his aptitudes, career interests and work values.  The initial assessment and testing were followed by a period of career counseling to pinpoint specific educational and vocational goals and objectives.  Following his experiences after the Spinal Cord Injury and the care and rehabilitation which followed, Larry presented with both tested and verbalized interests for pursing a medical degree with specialization as a Physical Medicine and Rehabilitation Physician. A detailed academic pathway was developed by both Larry and the Vocational Rehabilitation Counselor through shared research, discussions and vocational assignments during the period of career counseling. Once Larry was re-enrolled into college, the Vocational Rehabilitation Counselor met with, and remained in contact with, the Disability Coordinator for the University to ensure Larry would have appropriate environmental access and classroom modifications necessary to accommodate his wheelchair and overall needs as a person with a Spinal Cord Injury throughout his period of academic study. Larry moved back into an accessible dormitory on campus and reconnected with his prior social group after encouragement and support from the Counselor. He began college classes and remained in contact with his Counselor, at least quarterly, throughout his period of education for advocacy, counsel and guidance, as needed.  Upon completion of medical school and his necessary residency, onsite vocational rehabilitation services increased for Larry, including assistance with job seeking and placement. Also, the Counselor worked with Larry to hone his interviewing skills and overall comfort for discussing accommodation requirements for his work in the healthcare workplace.  Consultation was completed with the Job Accommodations Network (JAN) to facilitate and support Larry’s performance of essential duties as a Physician. After three months of job searching and interviewing, Larry accepted an offer of employment.  Following a successful six months of employment, at a regional rehabilitation hospital, Larry’s file was closed by the Vocational Rehabilitation Counselor, with the option to re-open, should additional career guidance, counsel and/or advocacy be needed in the future.

CONCLUSIONS

Severe injuries can significantly disrupt individuals from their active or emerging careers. When vocational displacement occurs, these individuals can benefit from working directly with a qualified and experienced Vocational Rehabilitation Counselor. An individualized plan toward a new or related career should be developed to guide such services. The plan may require academic training or focused vocational skill development to facilitate a return to gainful employment within the competitive labor market. Appropriate selection of a career path, with or without accommodations, and the development and subsequent pursuit of objectives to accomplish the intended vocational goal(s) are critical to promote financial independence for many persons with severe injuries and disabilities. Outside of the economic value, the engagement of successful employment provides many other benefits for the individual, and can mitigate many of the emotional, psychological and social challenges that often occur after severe injuries. In closing, persons with severe injuries and disabilities should not be automatically judged disqualified from the world of work. Rather, astute vocational rehabilitation assessment, with individualized planning and counsel, can serve to establish many career paths for persons with severe injuries, including those potentially not easily discerned at first appraisal. In the end, having an appropriately selected and established career can improve personal adjustment, motivation and overall quality of life for persons with severe injuries and disabilities and by virtue, is a worthy goal of pursuit.    

ABOUT THE AUTHORS

Michael Fryarearned a Bachelor of Arts in Psychology from the University of North Carolina at Chapel Hill. He subsequently graduated Summa Cum Laude with a Dual Master’s in Rehabilitation Counseling and Vocational Evaluation from East Carolina University. In 2005, he completed a 120-hour post-graduate training program in life care planning through Kaplan University with lead instructor, Dr. Paul Deutsch, the founder of the life care planning process. Finally, Mr. Fryar completed his Associate Degree in Nursing at Sampson Community College. Mr. Fryar is a Certified Rehabilitation Counselor (CRC), Registered Nurse (RN), Certified Case Manager (CCM) and Certified Life Care Planner (CLCP). He is also a registered Qualified Rehabilitation Professional (QRP) through the North Carolina Industrial Commission. Mr. Fryar has worked as a Rehabilitation Charge Nurse for the brain injury, spinal cord injury and general rehabilitation units of Wake Forest University Baptist Medical Center. He has served as the past Secretary for the International Association of Rehabilitation Professionals’ (IARP) National Forensic Board. He is currently an active IARP member and is involved with the Rehabilitation and Disability Case Management (RDCM) National Board of IARP to include past appointment to the Education Subcommittee. More recently, he became Chair for the Rehabilitation and Disability Case Management (RDCM) section of IARP. Finally, Mr. Fryar was recently invited to assist in the updating of the life care planning educational program offered by the Institute of Rehabilitation and Education Training (IRET).  In total, Mr. Fryar has worked over 22 years within the vocational rehabilitation, case management and life care planning fields. He provides independent case management and rehabilitative consultant services.

John Humphreys earned a Bachelor of Science in Education from the University of Georgia. He subsequently graduated from East Carolina University with a Dual Master’s in
Rehabilitation Counseling and Vocational Evaluation. Additionally, Mr. Humphreys received certification in Substance Abuse Counseling from Central Piedmont Community College. Mr. Humphreys is a Certified Rehabilitation Counselor (CRC). Prior to obtaining his master’s degree, Mr. Humphreys taught children with intellectual and developmental disabilities, as well as those with neurodiverse needs, to prepare them for work and independent living. In the field of rehabilitation, he worked as the Director of Vocational Services for Carolinas Rehabilitation Hospital of Charlotte, NC. In this role, he provided vocational rehabilitation counseling, vocational evaluation, case management, job placement, and training to individuals with acquired disabilities, such as Traumatic Brain Injuries, Strokes and Spinal Cord Injuries. Mr. Humphreys currently works as a Vocational Rehabilitation Counselor for the North Carolina Division of Services for the Blind. He manages a caseload of individuals with low vision and blindness and provides the rehabilitative assessments, counseling, and services necessary to assist each person with identifying, obtaining, and maintaining competitive employment. Mr. Humphreys has over 23 years of experience within the field of vocational rehabilitation, providing counseling, evaluation, placement, training, and case management to individuals with catastrophic injuries to ensure their successful return to work.

REFERENCES

American with Disabilities Act.  Retrieved from https://www.ada.gov

Dingel, J. & Neiman, B. (2020). “How Many Jobs Can Be Done At Home?” (White Paper). Becker Friedman Institute.

Duta, A. et al. (2008). “Vocational Rehabilitation Services and Employment Outcomes for People with Disabilities: A United States Study.”  Journal of Occupational Rehabilitation, 18 (4), 326-334

Job Accommodation Network (2019). Retrieved from https:// www.askjan.org

Robinson, R. (Editor). 2014. Foundations of Forensic Vocational Rehabilitation.  New York, NY: Springer Publishing Company, LLC.

Salon, D. et al. (2022). “The COVID-19 Pandemic and the Future of Telecommuting in the United States.” Transportation Research, 112 (1-24). https://doi.org/10.1016/j.trd.2022.103473

Trenaman, L. et al. (2014). “Review Interventions for Improving Employment Outcomes

Among Individuals with Spinal Cord Injury: A Systematic review.” Spinal Cord, (52), 788-794.

doi:10.1038/sc.2014.149

Ullah, M. et al. (2017). “The Meaning of Work After Spinal Cord Injury: A Scoping Review. Spinal Cord, (56), 92-105. doi:10.1038/s41393-017-0006-6

United States Department of Labor. Job Accommodations. Retrieved https://www.dol.gov/

general/topic/disability/jobaccommodations.

Weed, R. & Field, T (editors). 2012. Rehabilitation Consultant’s Handbook (4^th ed.) Athens, Ga.: Elliott & Fitzpatrick Inc.

Wong, J. et al. (2021). “Job Accommodations, Return to Work and Job Retention of People with Physical Disabilities: A Systematic Review.” Journal of Occupational Rehabilitation, (31), 474-490. doi:https://doi.org/10.1007/s10926-020-09954-3

World Health Organization. (2001). International Classification of Functioning, Disability and Health. Geneva, Switzerland.

Inquis Global is a 2023 Titanium Partner of NCADA.

by J.D. McAlister, McAngus Goudelock & Courie, LLC

NORTH CAROLINA WELCOMES ELECTRONIC FILING VIA ODYSSEY WITH AMENDMENTS TO RULE 5 AND 5.1 OF THE GENERAL RULES OF PRACTICE FOR THE SUPERIOR AND DISTRICT COURTS.

On February 13, 2023, North Carolina Supreme Court executed an Order amending the existing Rule 5 and Rule 5.1 of the General Rules of Practice for the Superior and District Courts, pursuant to its authority under N.C. Gen. Stat. § 7A-34. The need for the Amendment arose from the upcoming implementation of the new electronic filing system rolling out statewide - Odyssey. Many of us have been anticipating implementation of the system for the past few years. Odyssey will eliminate mailing delays, promote the ability to access documents remotely or outside of regular business hours, and substantially reduce excessive (sometimes) amounts of paper traded between the parties and the Court. However, the conversion in practice and procedure practice with respect to filings will require some adjustment, and likely create some turmoil (at least in the initial stages).

Despite best efforts, the COVID-19 pandemic thwarted the initial plans for the implementation of Odyssey, delaying the roll out statewide. Comments to the Order Amending Rule 5 reference the original plan to launch Odyssey in July 2021 and to expend the system to all counties within a five (5) year timeframe. Obviously, that did not happen. However, the COVID-19 pandemic did force changes in practice that helped acclimate attorneys to electronic practice in many respects, helping blunt any sudden impact of the transition to Odyssey. The amendment of Rule 5 of the North Carolina Rules of Civil Procedure in late 2020 to permit service in most situations via e-mail is an example of one such change.

The North Carolina Judicial Branch coordinated sample programs over the past two (2) years, in order to identify and address issues that may arise prior to the full launch of Odyssey statewide. The system is now ready, and officially became interactive for four select counties as of February 2023: Harnett, Johnson, Lee, and Wake. The current plan is to expand Odyssey to the remaining counties by 2025.

The advent of Odyssey will now allow for electronic filing 24 hours a day; 7 days a week, and, 365 days a year; will permit service on all counsel of record, or parties, contemporaneously with filing; will enable access to documents and grant the ability to secure file stamped copies without a trip to the courthouse; and, expand the options to make necessary payments online.

The Court executed the Order following conference on February 1, 2023. The Order mandates an effective date of February 13, 2023. In the four counties in which Odyssey is now operational (Harnett, Johnson, Lee, and Wake) attorneys must file via the electronic system. An overview of the pertinent changes ushered in by the new amended Rule 5, includes the following non-exhaustive list of changes:

1) Every attorney will need to register individually for an account on the Odyssey system in order to use it;

2) As of February 13, 2023, attorneys in counties where the Odyssey system is active (Harnett, Lee, Johnson, and Wake) are now required to file all documents via the system.

3) In the event there is an issue with the Odyssey system (referenced in the Order as a service outage, natural disaster, or other emergency) the attorney may then file, in paper, a motion seeking relief to file the document in paper or seeking other relief. If pursuing this alternative option, the attorney must attach the document to the motion. It is not the intent of this provision to permit the court to extend time or periods of limitation; the Court may only provide relief as permitted by law.

4) Parties not represented by an attorney may secure an Odyssey account, and are encouraged to file using the system, but are not required to do so.

5) There is no longer a need for attorneys, in most instances, to physically sign documents. A “\s\” notation followed by the attorney’s electronically printed name is sufficient to indicate signature on the document. Attorneys may also include electronic signature lines for other counsel involved in the action, so long as the other counsel agree to the form and substance of the document. Any attorney filing a document bearing the electronic signature of another attorney certifies by filing that the other attorney(s) have agreed to the form and substance of the document, and provided authority to submit the document on his/her/their behalf.

6) The Court, absent exceptional circumstances, must sign and file its orders, judgments, decrees, and other documents via Odyssey.

7) For all electronically filed documents in Odyssey, the time of filing will be the time the electronic system receives the document – as evidenced on the face of the document. Previously, the timing of filing was the time at which the Clerk physically stamps the document. Upon filing, Odyssey will generate a Notification of Service that operates as an “automated certificate of service” in satisfaction of Rule 5(b1) of the North Carolina Rules of Civil Procedure.

8) Paper documents remain “filed” at the time the Clerk of Court, or a judicial official authorized by law to accept the document, file-stamps the document. Documents filed by the court generally follow the same timing component as paper documents, except that the file stamp is electronic.

9) A filer may withdraw a document after electronically submitted, up until the time the Clerk of Court or a judicial official authorized by law to accept the document begins processing it.

10) The Clerk of Court or a judicial official authorized by law to accept the document also has the ability to reject improperly filed documents. Such situations may include when a document filed violates an order (such as a Gatekeeper Order), statute, or rule; when the filer submits a rejection request; and/or, when the document submitted is corrupt or quarantined for containing a virus or malicious software.

As of now, the deadline for filing documents remains 5:00 PM on the date a filing is due. Any document received by the system after the 5:00 PM deadline is considered “late filed” – treated as if filed on the following business day. This remains consistent with the current General Rules of Practice for the Superior and District Courts and the North Carolina Rules of Civil Procedure.

The comments addressing the amendments note that additional changes may be required to as Odyssey is rolled out statewide. It is plausible to envision there may be an eventual amendment that will extend the deadline to file on a given day up until 11:59:59 PM, consistent with the Federal Rules of Practice and Civil Procedure. Other states implementing Odyssey have made such changes. Neighboring state Tennessee, which authorized electronic filing in civil trial courts in 2010, implemented a time and deadline change to allow “timely filings” any time up until 11:59:59 PM, after rolling out Odyssey as its electronic filing system. The only caveat being that such documents still must be eventually “accepted” by the Clerk of Court upon review to be considered timely.

Overall, once up to speed, use of the Odyssey electronic filing system should make practice and procedure more efficient, accessible, streamlined, and cost-effective, for both attorneys, judicial officers and personnel, and the public. The key to a successful transition will require embracing technology, adaptability, and a healthy dose of patience. With respect to the latter, it is imperative to recognize that our Clerks of Court, associated personnel, and other judicial officials are also in the midst of this transition – please be kind and patient as we all adapt to the implementation of Odyssey.

No matter your position on “going virtual” continued changes to the practice of law and procedure will be substantially influenced by advances in technology, and will continue to become our new reality.

Please take the time to familiarize yourself with these new changes, including training for use of the Odyssey electronic filing system. You may find the below links, which include instructions and tutorials, helpful in your effort to prepare for implementation of Odyssey in your county:

eCourts | North Carolina Judicial Branch

NC Courts YouTube Channel

By: Ryan D. Eubanks, Sumrell Sugg PA

A vital part of achieving professional success as a young attorney is the wisdom, guidance, and support of a good mentor. However, often times the insight, advice, and war stories that help shape the young attorneys in a firm do not make it any farther than the four walls of that corner office. As part of this series, the North Carolina Association of Defense Attorneys will seek to highlight mentors throughout the state whose insight helps mold the next generation of defense attorneys, so that all of our members, but particularly our young attorneys, can benefit from it. Today’s words of wisdom come from a conversation I had with my mentor, Scott C. Hart. Scott is the managing partner at Sumrell Sugg, P.A. in New Bern, North Carolina. He has been practicing law for over 30 years (yes, as young lawyers, that is longer than some of us have been alive) and is a past member of the Board of Directors for the North Carolina Association of Defense Attorneys. He primarily focuses his practice area on insurance defense, mediation, and arbitration.

What was the best advice you were given as a young lawyer?

Try the case, not the other lawyer. I remember coming into a senior partner’s office because I was so upset about what another lawyer was doing, and I had all these ideas about how I was going to try to deal with that other lawyer. The senior partner looked at me and he said, ‘you need to try the case and not the other lawyer.’ He told me, ‘your objectivity is the most valuable thing that you can provide to your client, and if you lose your objectivity because of how you feel about the other lawyer, you cannot provide anything to your client.’ That was the best advice I ever got.

What do you believe is the appropriate work-life balance for a young attorney?

I think every experienced lawyer, on some level, probably thinks that he or she had it more difficult than the current young lawyers do, and they are probably wrong about that. The practice of law is far more efficient than it used to be because of computerized research, not just legal research but research generally. The ability to do video interviews and depositions and the use of email, text messages, and cell phones allow attorneys to get a lot more done in a shorter period of time. And so, I think lawyers that are learning how to practice now have more opportunities to get things done because of that efficiency. But I have also seen too many people burn out because they do not take care of themselves. I think it is important to focus on work while you are at work, but you also have to learn the skill of being able to close your office door at the end of the day and walk away from whatever is waiting on your desk. That means figuring out a way to get as much done as you can while you are at the office and figuring out a way to leave it behind when you are not. That is a tough thing to figure out. I think that balance is different for everybody. Some people can handle checking and returning emails late in the evening because it helps them to sleep knowing any issues have been addressed. Some people are better at saying, ‘I am not going to look at my email or respond to anything that comes in after seven or eight o’clock at night.’ I think you need to find out what works best for you. I think it is also important to find hobbies outside of your practice and to get physical exercise. It is important to find time to include those things in your schedule so you can feel like you are doing things that are for you and that you enjoy doing. It is a difficult job, and you will spend a lot of years doing it. If you burn yourself out by the time you are thirty-five, you have defeated the purpose.

What advice do you have for a young attorney who is feeling overwhelmed with their caseload?

I think every successful lawyer occasionally feels overwhelmed by their caseload. Sometimes it is helpful when that happens to carve out some time when no one is in the office to sit down and organize what is on your desk to make sure that you have a sense of what needs to get done. Whether that time is right after the office closes one evening, or coming in early one day, or coming in for an hour or two on a weekend just to kind of get a sense of what needs to be done so that you can handle it a little bit at a time. In my experience, what typically makes you feel overwhelmed is the total volume. The individual tasks are always doable, it is the number of them that overwhelms you. So if you can sit down and figure out how you are going to get through accomplishing each of those tasks, it will feel like it is much more achievable. Do not look at the whole; look at the parts.

Do you think it is important for young attorneys to be involved in organizations outside of the legal profession, whether it is a kickball league or the board of a local nonprofit organization?

Yes, 100 percent. It is good for your career to be able to interact with other professionals and to be a part of your community, but it is also just good for you as a person to be well-rounded and to be involved in things. It helps you realize that there are things going on in your community outside of your law firm. I also think it is important to be involved in legal organizations like the NCADA or the NCBA to be able to interact with other lawyers outside of your law firm and outside of your town because you can learn a tremendous amount from how other people are doing things. It is also nice to know that there are other people that are basically going through the same things that you are going through.

We often hear the term jack of all trades, master of none. Do you think young attorneys are better served focusing on mastering a few select practice areas, or should young attorneys be willing to take on unfamiliar subject matters?

There are certain areas that you can learn. The question is whether you can be competent to provide the legal services because you have an ethical obligation to make sure before you take a case or a matter that you can competently provide those services. So if someone comes to you and asks you to work on a matter that requires a tremendous amount of technical skill and you do not have that, and no one in your firm has that, and you cannot associate someone to walk you through it, then I think you are making a mistake handling that matter. If you have got those resources available to you, either inside or outside of your firm, so that you have a chance to learn that area through that process, then it is helpful. There are certain areas that are highly technical, areas like tax, finance, and banking, that I would be very hesitant to try to do if you did not have mentoring and expertise. Before you write a will or handle an estate, you want to absolutely make sure that you understand the law well enough to provide those services competently because there can be major repercussions if something is done incorrectly. I think the key is making sure that you have resources and mentoring or guidance from other lawyers and that you can learn thoroughly the area that you need for that case before you take it.

What is one thing you know now that you wish you knew when you first started practicing law?

I wish I would have known how quickly the time was going to pass. I wish I had appreciated more the times that I spent with other lawyers working on cases. I was so busy and so wrapped up in taking care of that case and moving on to the next one that I often did not take the time to step back and reflect on how much I was enjoying it. Before I knew it, I blinked, and 30 years were gone. I wish I had known how fast it would go.

What trial tips do you have for young attorneys?

I think the most important thing that a young trial lawyer can do is make sure that you come into trial with a theory and a theme and that you keep those two things in mind throughout the trial. Be willing to shift if you need to because of unexpected things that happen in the trial itself. But you have got to look at the case as it is being presented to the jury through the lens of your theme and theory of the case so that you make sure you are able to present a consistent message to the jury.

How should a young attorney prepare for their first trial?

You should write everything out that you can and try your best to prepare for every eventuality that may happen. By writing out, I mean write out your plan for your jury voir dire, your plan for your opening statement, your plan for direct and cross-examinations, and your plan for your closing. You will likely not actually follow what you have written down to the letter, but the exercise of writing it down will help you organize it. As you progress in your career, and the more cases that you try, it will become less important to write everything down in advance, but I think that it is helpful for young attorneys as they get used to trying cases. You should also try to think of every potential eventuality of what the other side might do and think about what your response will be so that you have already thought through a number of different possibilities and in your mind plotted out a way to respond to each of them.

What mediation tips do you have for young attorneys?

You should assume that your case concludes at or shortly after mediation. It is a mistake to assume that mediation is just one step in the case. If you do not go into mediation hoping to utilize it to its greatest effect, you will not get the greatest benefit out of it. We know that most cases end in mediation or shortly thereafter, so you should plan for that. You should structure your discovery around the mediation because your case is more likely to end at mediation because of the good job you did in discovery than it is to end with a jury verdict. Not that many cases get to go to trial anymore. So prepare for discovery and prepare for mediation as if they are the determining aspects of your case. They probably are.

Is it helpful to start with a reasonable response to an opening demand in mediation, or should a young attorney start with a low offer?

If you are on the defense side, in almost every case, I think you are most effective by making an aggressive opening offer and then, if necessary, making smaller moves from that point. A lowball offer almost always results in bad blood that slows the process down. If your goal is to settle your case, then you are more likely to do so with an aggressive opening move than you are with a lowball opening move.

What deposition tips do you have for young attorneys?

Prepare for your depositions as if your case depends on them. Have an outline that you use as your backbone for all of your depositions because then, no matter what happens, you have a structure that you can follow that is logical and covers not only background information but the facts of your case. Prepare for the deposition as if you were going to be taking someone’s trial testimony. Be prepared by doing a background investigation on the witness to try to find out everything you can about that witness and read their written discovery. Because a deposition is your opportunity put a witness on the spot, get their testimony, and evaluate how they perform, you need to be prepared in order to make sure you get the best out of that.

I know in your depositions you do not introduce a lot of exhibits. What is your thinking behind that, and do you recommend that to others?

I think it is a personal preference thing. I know some lawyers who are extremely effective and who use lots of exhibits in their depositions. I have always tried in my depositions to focus on how a witness is handling my questions, and I can do that better by focusing my attention on the witness and their answers rather than giving them an exhibit. I also want to know how they are going to respond to me without the benefit of having something in front of them to refer to. But I am always willing, if they have given me information that is contrary to something that I have, to put an exhibit in front of them that shows they are inconsistent. I usually bring exhibits, but I often don’t use them. I never admit exhibits just for the sake of having them.

What are the most common mistakes you see young attorneys make, and how can those mistakes be avoided?

The biggest mistake I see young lawyers make is being unpleasant to other lawyers. This job is stressful enough without unnecessarily getting into fights with lawyers on the other side or on the same side about cases. In my experience, most disputes can be worked out between lawyers behaving reasonably. I think too many young lawyers think that their job is to be in a constant state of altercation, and I do not think that is helpful at all. Some of my best friends are people that I have had on the other side of cases, that I became good friends with during the case, and who I respected and trusted a great deal. We did battle in court when we needed to, but I also trusted them at their word and respected them for the job that they were doing. There is no need for things to become personal, and it should not ever become personal. As a young attorney, there is something to be said for building trust and relationships with attorneys on the opposing side because you will almost certainly see them again, and building those relationships may pay off for you and your clients later in your career. Be prepared, be professional, and be pleasant. Those are the three most important things I think a lawyer can do to cement their reputation. Be prepared for your case to make sure that nothing happens that you haven’t spent time thinking about and preparing for. Be professional and make sure that you are being courteous and providing good communication with other lawyers, and treating them the way you would want to be treated. Be pleasant, be enjoyable to work with, and be a nice person; it is not going to hurt your client, and it will make your life a lot more fun.

What has impressed you the most about the young attorneys that you have come into contact with?

Because law school has become so expensive, people only go to law school if they really want to be lawyers. When I went to school law school, it was relatively inexpensive, and there were people who did it because they did not know what else they wanted to do. Because it is now such a financial commitment, I think that the people that are going into it really want to do it and do it well. So, the commitment that I have seen in young lawyers has been impressive to me. I also think that our law schools are doing a good job of training our young lawyers for legal analysis. That is a skill that is very helpful for a young lawyer, and I have been impressed with that.

What tips do you have for young attorneys that want to continue to advance professionally?

Find practice areas and cases that you have a passion for because if you truly enjoy the work, you will excel at it. Clients will find you, work will find you, and you will be successful. Do not get caught up in how profitable it is because if it makes you happy and challenges you, that is the work you should be doing.

What advice do you have for a young attorney who finds themselves facing off against a more experienced attorney?

You cannot control the facts of your case, and you cannot control how much age and experience the other side has, but you can control how hard you work in preparing the case. You can make sure that you never go into a deposition, a mediation, a hearing, or a trial where you have been outworked. There is at least a decent chance that the older, more experienced lawyer may not have had the time that you have been able to commit to it. They do not simply provide victories to the person with the grayest hair.

Do you think experienced staff should play a role in guiding a young attorney?

Absolutely. I think an experienced legal assistant or paralegal can be a huge help to a young lawyer in trying to figure out how to do things. Young lawyers should be open to listening to experienced staff. Some of the best judges I have ever seen learned more from the clerks than from anybody else. Do not think that just because you have a law degree hanging on your wall that there is nothing you can learn from anybody else in the building.

What risks should a young attorney be willing to take?

I think you should always be willing to run the risk that you are going to lose a case. If you are a defense lawyer, the better you are at defending cases, the more difficult cases you are going to get, and you are not going to get to win all of those. It is not your job to win every case; it is your job to provide good legal advice and to fully evaluate and handle your cases. So, do not get wrapped up in the wins and losses, they are really meaningless.

If you are interest in submitting a “Conversations with a Mentor” article for publication, please contact Ryan Eubanks (reubanks@nclawyers.com) or Halee Morris (halee.morris@mgclaw.com).

By Tracey Jones and Heather Baker, Teague Campbell

On July 26, 2022, the Full Commission issued another extended benefits decision, Messick v. Walmart Stores, Inc. The panel consisted of Vice-Chair Griffin, Commissioner Taylor and Commissioner Goodman.  In this case, the Full Commission awarded the claimant extended benefits. The issue of extended benefits was not an issue at the Deputy Commissioner level. The Deputy Commissioner issued an Opinion and Award finding compensable aggravations to claimant’s pre-existing left knee condition and mental health condition, awarded ongoing TTD benefits, and ordered payment for claimant’s dental treatment related to a post-accident fall. Defendants did not appeal the findings or conclusions related to causation, but appealed on the issue of whether the first date of disability versus the date of injury was controlling in regard to determining the indemnity benefits and/or extended benefits owed to claimant under N.C.G.S. § 97-29.

Claimant sustained two compensable injuries; one to her lumbar spine and another to her right knee. Her lumbar spine injury was pre-2011 statutory reform and her right knee injury was post-2011 reform. Both injuries were accepted by Defendants. Defendants also authorized benefits for psychological treatment as a part of the claim. Ultimately, claimant required, among other treatment, a spinal cord stimulator, a knee replacement surgery, and a knee replacement revision procedure, along with increased psychological treatment for depression, which included a 20-day psychological support and physical reconditioning program where she weaned off Oxycodone. Eventually, claimant’s left knee became problematic, and she required a left total knee replacement, which claimant’s doctor opined was the result of her accepted right knee injury. She was ultimately assessed with failed back syndrome, chronic low lumbar pain, and chronic knee pain.

As a part of litigation, the parties deposed nine experts, consisting of claimant’s medical providers and claimant’s vocational expert. In terms of disability, many providers deferred to other providers and/or a vocational expert, and claimant was assigned permanent sedentary restrictions with no repetitive bending or stooping; no lifting more than twenty pounds; no twisting; no kneeling; no climbing ladders or stairs; no walking more than forty yards at a time; and no sitting or standing for more than thirty minutes at a time. The claimant’s vocational expert concluded that there was no reasonable vocational probability that claimant would be able to secure a job and maintain gainful employment. He testified she had a total loss of wage-earning capacity, despite noting that claimant expressed multiple times she would prefer to be working and productive.

The good news is the Full Commission, in keeping with it’s other extend benefits decisions, clearly states that the standard in extended benefits cases is different than the normal standard for proving entitlement to temporary total disability benefits.  Applying the revised standard set forth in the 2011 revisions to N.C. Gen. Stat. § 97-29(c), the Full Commission reiterated that to establish entitlement to extended compensation, a plaintiff must show that they have a total loss of the ability to earn wages in any employment.  See N.C. Gen. Stat. § 97-29(c) (2021).

However, the Full Commission found the vocational expert’s opinion credible and concluded there were no jobs in the job market within claimant’s functional capabilities. The Commission found ongoing disability for claimant’s pre-reform injury, and the Commission also found a total loss of wage-earning capacity due to her compensable injury for the second post-reform injury. Claimant was awarded ongoing medical benefits and TTD benefits for the pre-reform injury until claimant returns to work or until further order by the Commission and awarded extended benefits for the post-reform injury.  The Commission focused on claimant’s chronic pain, age, and length of time from being in any academic situation and relied on the only vocational expert to testify in the case to conclude that claimant has sustained a total loss of her wage-earning capacity.

Takeaways for Defendants

This Opinion and Award once again demonstrates the importance of expert testimony in these extended benefit cases.  The physicians deposed all found claimant’s pain complaints credible and either would not comment on claimant’s ability to work or deferred to a vocational expert as to whether there were jobs available that claimant could perform.  The only vocational expert that was deposed clearly testified that claimant had suffered a total loss of wage-earning capacity because of her restrictions and chronic pain complaints.  In order for defendants to successfully defend these cases, they must retain or have testimony from both medical and vocational experts that the claimant has some wage earning capacity.  If defendants can successfully present this evidence, past cases suggest that they will prevail and extended benefits will not be awarded.

By Elizabeth Ligon, Teague Campbell

Whether for team building or to celebrate the upcoming holidays, we often see a resurgence of off-site, employer-sponsored events this time of year, which also means an uptick in questions about whether injuries that occur at these types of events are compensable under the North Carolina Workers’ Compensation Act. As with most legal questions, the answer is oftentimes “it depends.” The general rule involving these off-site events is if an employer provides an occasion for recreation or an outing for employees and invites them to participate - but does not require them to do so - and an employee is injured while engaged in the activities, such injury does not arise out of the employment. However, the courts will consider several factors to determine whether an injury occurring at an event is compensable, including whether the event was sponsored and financed by the employer, the extent the employer encouraged their employees to attend the event, and the extent that the employer benefited from the event.

What does case law say?

In Chilton v. Bowman Gray School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347 (1980), the Radiology Department of the hospital organized and paid for a picnic for members of the faculty and new residents to become acquainted. Employees felt no direct pressure to attend, but some employees testified that they felt that they should go to the picnic. During a volleyball game at the picnic, an employee broke his ankle. The Court of Appeals considered several factors to determine whether an injury at an employer-sponsored recreational event was compensable, including:

• Did the employer in fact sponsor the event?;
• To what extent was attendance voluntary?;
• Was there some degree of encouragement to attend evidenced by such factors as taking a record of attendance, paying for the time spent or requiring the employee to work if he did not attend, or maintaining a known custom of attending?;
• Did the employer finance the occasion to a substantial extent?;
• Did the employees regard it as an employment benefit to which they were entitled as of right?; and
• Did the employer benefit from the event, not merely in a vague way through better morale and goodwill, but through such tangible advantages as having an opportunity to make speeches and awards?

After considering these factors, the Court of Appeals found the injury not compensable because it was not clear that the Radiology Department sponsored the picnic; the event seemed to be a self-perpetuating one that occurred each year more because of tradition than from any initiative taken by the Department heads; attendance was voluntary; no record of attendance was taken; the participants were not paid for the time spent, nor was any employee required to work at the medical school if he did not attend; the picnic was not an event that employees regarded as being a benefit to which he was entitled as a matter of right; and the Radiology Department did not utilize the picnic as an opportunity to give a “pep” talk or grant awards.

However, the Court came to a different conclusion in Holliday v. Tropical Nut & Fruit Co., 242 N.C. App. 562, 775 S.E.2d 885 (2015).  There. the employer required the claimant to attend a three-day conference. On the first evening of the conference, the employer organized a bowling and laser tag social event for the employees in attendance. The employer paid all expenses for the event, assigned employees to teams, and told each employee which activities they would be participating in upon arrival. The claimant was assigned laser tag. Approximately 15 minutes into the game, he began to feel sharp pain in his knee. After the game concluded, he immediately informed his general manager that he thought he had hurt his knee, but he was able to attend the remainder of the conference.

The North Carolina Court of Appeals held that, since the employer required its employees to attend the conference, encouraged their participation in activities, and derived a business benefit from the event as a whole due to the team building and networking opportunities of the sporting events, the claimant's injury arose out of his employment. The Court further noted that the conference and the claimant's participation in all events during the conference were scheduled by the employer and were calculated to further, directly or indirectly, the employer’s business.

Considerations

When considering whether an injury occurring at a work event would be compensable, evaluate whether the work event is sponsored and/or financed by the employer, and whether the employee’s attendance is mandatory. Team building activities are important, but in order to minimize your exposure, voluntariness is key. If an employee is injured at an event sponsored and financed by their employer and participation is mandatory, the injury will most likely be found compensable.

John G. Bauer, BSME, MEM, P.E., Rimkus

Air bags in vehicles have become quite commonplace. They are neatly tucked away and mostly unseen, so most people don’t give them much thought… until there’s a crash. Then, people start asking questions. “Why didn’t my air bag deploy?” “Why did my air bag deploy?” “After the impact, my air bag was smoking… was it on fire?” “The air bag is supposed to cushion me… why did it break my nose and glasses?” “What happened to Tiger Woods? Why didn’t his vehicle have an air bag for his lower legs?” “How do knee air bags work?” It’s not rocket science, or is it?

A little history

The first automotive barrier crash test, conducted at GM in 1934, was an early milestone in vehicle safety. In the late ‘40s and early ‘50s, seat belts began being offered in cars, and the first patents for early air bag designs were filed in 1951 (Figure 1). The inventors of those original air bag devices were limited by compressed air or gas technology of that time; but compressed gas could not fill the bags fast enough, and crash sensing had not been invented yet. So, the concept of automotive air bags stayed “deflated” for several years.

Figure 1. Early patent of automotive air bags

Then, in the late ‘60s, Allen Breed developed a ball-in-tube electromechanical sensor that could detect a crash and close a circuit to deploy an air bag. Also, at about that time, aerospace companies like Talley and Thiokol had been researching solid propellant applications for rocket boosters, military aircraft pilot ejection systems… and automotive air bags.

Breed’s sensor designs and some aerospace rocket science led the way to the actual implementation of air bags in passenger vehicles. Ford and GM began installing air bags in automotive test fleets in the early ‘70s, and the first passenger air bag was sold to the public in the 1973 Oldsmobile Toronado. In 1981 at the Geneva Motor Show, Mercedes-Benz announced a driver air bag and pyrotechnic passenger belt tensioner for the new S-Class (Figure 2). Automatic seat belts or air bags were required in US passenger vehicles in the late ‘80s. After initially fighting their implementation – like a lot of auto industry leaders -- Lee Iacocca decided to gamble and offered driver air bags as standard equipment on several Chrysler models. The bet paid off, and the industry found that “safety sells.”  The rest, as they say, is history.

Figure 2.  Mercedes-Benz circa 1981

Air bag myth #1

“My air bag didn’t deploy, so it must have been defective.”

Air bags are very reliable. The automotive industry was very cautious before finally embracing air bag technology. Air bags were – and still are – carefully designed, tested, and vetted. Since they are inherently dangerous, special precautions are taken to make sure they work as intended. Also, air bags are only intended to deploy in certain situations.

Air bags are not set to inflate based primarily on the speed of the vehicle. Deployment depends on the object struck, the impact direction, and how rapidly the vehicle changes speed or slows down. Is the struck object fixed or moving, rigid or deformable, narrow or wide?

Early air bag systems were designed to only function in frontal or near-frontal crashes.  Later, side impact air bags were developed. Then, rollover air bags were introduced to complement and utilize the side air bags. More recently, knee air bags, inflatable seat belts, rear impact air bags, and others are being developed and introduced. Some vehicles have active head restraints or “deployable” headrests for rear impacts, but those devices currently are mechanically activated and do not use air bag technology. Crash sensors detect impact “forces” or roll characteristics. Deployment thresholds are then used to determine if the air bags should inflate (Figure 3).

Figure 3. Deployment thresholds (Okamura, et.al., 26ESV-19-000248)

Air bags are designed to inflate only if the applicable deployment threshold is exceeded. Deployment thresholds are mostly based on crash severity, usually some function of acceleration (or deceleration). The threshold is set to deploy air bags only in moderate to severe crashes to reduce the potential for serious injuries. More advanced vehicle restraint systems use thresholds based on crash severity, driver and passenger belted status, front seat position, and front passenger occupant size and weight.

Most vehicles built since the late 1980s have air bags. For those vehicles equipped with air bags, nearly all will have one or more frontal air bags. The most common is the driver frontal air bag located in the steering wheel. A larger frontal air bag for the outboard front passenger is also very common. More recent examples of frontal air bags include knee air bags for the driver and outboard front passenger. Frontal air bags are designed for frontal and near-frontal crashes and are not intended to deploy in rear impacts, rollovers, or many side impacts.

Side air bags are set to inflate in side impacts and sometimes rollover crashes. Air bags for side impacts must deploy very early and fast because the gap between the occupant and door is small, and that gap often “closes” rapidly due to the intruding vehicle or object. Side impact sensors are usually solid-state accelerometers or pressure sensors in the doors or side pillars. Like frontal air bags, most side air bags are vented and quickly deflate. Since rollover crashes can last up to 6 seconds or more, rollover air bags need to stay inflated for about 6 seconds and are, therefore, coated and sealed. Some side curtain air bags are designed only for side impacts. Other side curtain air bags have been developed for side impacts and rollover crashes.

Each vehicle model is relatively unique with its own specific size, weight, and structure.  Therefore, each vehicle model has its own unique crash “signature” and reacts to crashes differently than other models. To account for this, the air bag sensor system for each vehicle model is calibrated specifically for that vehicle model, and that model only. Many tests and various simulations are conducted and used for air bag sensor calibrations. In addition to standard frontal, angular, side, rear, and rollover crash tests, rough road and other abuse tests like curb impacts and undercarriage strikes are used.

Vehicle crashes can be very complicated and somewhat chaotic events, so it is very difficult and often impossible to replicate actual crashes with tests. Many crashes include multiple impacts and directions and are a small collection of different events. Some develop very quickly, while others develop slowly over several seconds. Due to thorough design and development, air bag sensor calibration is usually quite robust and can assess most crashes and make the proper decision to deploy or not deploy. Although rare, air bag systems can and do occasionally fail to deploy or deploy inadvertently. Before concluding a defect occurred, the conditions of the crash and the vehicle specifications must be carefully examined.

Air bag myth #2

“Air bags pop out after the car stops, like in the movies.”

For most of us, we realize what we see on the big screen is not always completely accurate. Hollywood often takes liberties with physics, with science, with technology, and with air bags. Although not meant to be authentic, one of my favorite portrayals is the Jiffy Pop popcorn air bag by Saturday Night Live (SNL) (Figure 4).

Figure 4. Jiffy Pop air bag (SNL)

Air bags usually deploy a fraction of a second after impact. For example, during a 30-mph frontal barrier test, the occupant begins moving relative to the vehicle in about 15 milliseconds (0.015 second). The occupant continues to move about 5 inches over the next 30 milliseconds. Since a typical driver frontal air bag inflates in about 30 milliseconds, the decision window for air bag deployment is the first 15 milliseconds during that type of crash. So, for a 30-mph frontal, deployment occurs after about 15 milliseconds, air bag inflation in about 30 milliseconds, occupant ride-down over another 50 milliseconds, and occupant rebound back into the seat in about 100 milliseconds or more. The vehicle comes to a brief stop and begins to rebound in about 90 milliseconds, just before the occupant reaches maximum ride-down. The vehicle rebounds or bounces back and comes to rest “long” after the air bag has deployed.

According to various sources, the duration of an eye blink is 100 to 400 milliseconds. Air bags deploy in 30 to 60 milliseconds… “less than the blink of an eye.”

Air bag myth #3

“Air bags are soft cushions or pillows.”

As just described, air bags inflate very fast.  As they unfold and deploy, the filling bag front can reach speeds of 100 to 200 mph. Also, most are designed to protect belted and unbelted occupants. To restrain an occupant in a moderate-to-severe crash, an air bag may need to exert a force of 1,000 to 3,000 pounds or more on the occupant. That means the air bag must pressurize and be quite firm for a short time. The air bag is usually porous or vented and allows gas to quickly escape to properly manage the occupant’s energy and allow the occupant to “ride down” the air bag (Figure 5).

Figure 5. Air bag ride-down (phandwc.com)

Air bags are designed to help stop an occupant with a substantial amount of kinetic energy in a crash. Crash forces can be quite high, so the air bag must be firm, not soft. Occasionally, drivers break their eyeglasses or nose when contacting the air bag. The air bag must also deflate rapidly in a controlled fashion to avoid excessively high forces that could seriously injure the occupant.

Air bag myth #4

“My car has air bags, so I don’t need to wear a seat belt.”

Seat belts are primary restraints.  Air bags are designed to be supplemental restraints.  While air bags will provide some protection for unbelted occupants, air bags alone cannot prevent all injuries.  Air bags work best when used in conjunction with seat belts.

Unbelted occupants will normally experience much more movement or “excursion” during a crash, when compared to a belted occupant. For example, a front seat unbelted occupant will travel forward and hit his knees on the lower dash panel, known as the knee bolster, during a frontal crash. Knee bolsters are typically steel or structural plastic panels covered by trim. They are designed to absorb occupant crash energy, but they are relatively hard and rigid. Also, an unbelted occupant is much more likely to penetrate through, miss, or slide off the air bag and strike an interior component like the header, A-pillar, or windshield.

Even worse, an unbelted occupant can easily be ejected from the vehicle during a crash (Figure 6). Ejection from the vehicle is extremely dangerous. It is much safer to remain inside the vehicle during a crash. It is not safer to be thrown clear of the vehicle (another myth). According to National Highway Traffic Safety Administration (NHTSA) (safercar.gov), only two percent of all crashes involved a rollover, but rollovers accounted for 35 percent of all traffic fatalities due to partial or full occupant ejection and other factors.

Figure 6. Occupant ejection through windshield (abcnews.go.com)

Air bag myth #5

“My air bag was smoking, so it must have been on fire.”

All air bags are inflated by gas-generating devices that include some type of ignition train. An igniter or “squib” is a small “micro” gas generator that starts the inflation process. The squib produces a small amount of hot gas that ignites booster material, which in turn produces more hot gas that ignites the main solid propellant. The propellant converts to harmless nitrogen gas and fills the bag. Hybrid-technology air bag inflators use a smaller amount of solid fuel to heat compressed gas that expands and fills the bag.

Some smoke or widely dispersed particulates are produced as a byproduct of air bag inflator ignition and deployment. Most of the heavy particulates are trapped by filters in the inflator, but some of the smallest particulates pass by the filters and enter the bag as smoke. Since the bag is typically stitched and semi-porous or vented, some of the smoke exits the bag during deflation. That smoke is visible inside the vehicle but is mostly harmless. The smoke is a normal byproduct; it does not mean the air bag was on fire.

Early air bag cushions were made from state-of-the-art fabric at that time. Since fabric long-term aging and friction were concerns, the air bag cushions were often coated with cornstarch or talcum powder to keep the fabric soft and lubricated. With the advancement of better fabrics over time, the use of cornstarch or talcum powder on air bags was abandoned many years ago.

What happened to Tiger Woods

As you likely heard, Tiger Woods was involved in a very serious car crash a while back. He was reportedly traveling north on a curvy downhill stretch of road in Los Angeles County, on his way to a TV shoot with other celebrities. Tiger was driving a 2021 Genesis GV80 SUV.

Police said the Genesis contacted the dividing median and struck a wooden sign before crossing two southbound lanes. The Genesis then reportedly struck a curb and some trees, causing it to overturn and roll several times. There was heavy impact damage to the front end and light-to-moderate damage on the rear quarter panels and rear end.

The Genesis driven by Tiger was equipped with 10 air bags, including a front center air bag for side impacts (Figure 7). At least eight of the 10 air bags deployed during the crash.  The driver steering wheel and knee air bags deployed due to the frontal impact. The left and right side-curtain air bags and front and rear seat side air bags also deployed for rollover protection.

Figure 7. Genesis GV80 (hooniverse.com)

Tiger was reportedly belted. Although he was protected with a driver knee air bag, Tiger still sustained multiple serious fractures to his lower right leg, ankle, and foot. His injuries were possibly caused by intrusion of the driver footwell. Tiger did not sustain any significant injuries to his head, chest, or vital organs. He can attribute his survival – from what could have been a fatal crash – to the vehicle’s overall structural integrity and crashworthiness, his seat belt usage, and air bag protection and safety containment.

In closing

First invented in the early 1950s, air bags have been in production vehicles since the ‘70s and ‘80s. Although the general concept seems rather simple, air bags are very sophisticated and complicated devices. Special sensing and gas-generating technologies had to be developed to implement air bags. A lot of that technology is tightly packaged and hidden away inside the vehicle. For various reasons, there are several misconceptions or myths about air bags. This article attempted to dispel some of those myths with factual and detailed information… and rocket science.

About the author

John G. Bauer is a forensic mechanical engineer, certified traffic crash reconstructionist, and vehicle occupant restraints expert for Rimkus in Raleigh, North Carolina. His experience includes 25 years in the automotive industry, most of that designing and developing seat belts and air bags.  He conducted vehicle crash testing and simulations to optimize passenger safety. He has 11 US patents and was a featured speaker and author for the Society of Automotive Engineers. Since becoming a forensic expert, Mr. Bauer has consulted on various transportation-related matters and reconstructed hundreds of traffic accidents. He has investigated Takata air bag recalls, go-cart and ATV rollovers, and wheelchair accessible vans with safety restraints failures. He was retained as a seat belt expert for a high-profile fatal accident of a young boy on a 168-foot high water slide at the Schlitterbahn Waterpark in Kansas City, KS, in 2016. He enjoys vehicle and home restoration, golf, boating, and other activities with his family and friends.

By: Michael Fryar & Betsy Keesler
InQuis Global, LLC

INTRODUCTION

Evidence-based life care plans and earning capacity assessments ostensibly may not appear to have similarities.  However, close examination of their foundation requirements and overall tenets reveals both categorically have common and related developmental connections.  This article will review these specific forensic work products with an end goal of identifying their developmental parallels and common denominators.

EVIDENCE-BASED LIFE CARE PLANS

A life care plan is formally defined within the published 2015 Standards of Practice (Third Edition) by the International Association of Rehabilitation Professionals (IARP) and the International Academy of Life Care Planners (IALCP) as follows:

“The life care plan is a dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.”

• ·       LIFE CARE PLANNING STANDARDS & METHODOLOGY

An evidence-based and credible life care plan will be based upon adherence to published peer-reviewed life care planning standards of practice and empirically validated consensus statements. These guiding tenets inform the Life Care Planner of the methodological processes and the types of evidence/data necessary for their plans.  The categorical types of evidence, data and guidelines utilized during the development of an evidence-based life care plan include:

• 1.     Life Care Planning Standards of Practice
• 2.     Life Care Planning Consensus and Majority Statements
• 3.     Life Care Planning Assessment Information
• 4.     Medical and Clinical Records for Evaluee  
• 5.     Testimony from the Evaluee
• 6.     Direct Collaboration with Health Care Providers (Treating and/or Evaluating)
• 7.     Testimony from Health Care Providers (Treating and/or Evaluating)
• 8.     Clinical Practice Guidelines
• 9.     Peer-Reviewed Journal Articles
• 10.  Literature and Guidelines from Professional Academies, Societies and/or Organizations
• 11.  Health Care Cost Databases
• 12.  Medical Billing Records

Many actively practicing Life Care Planners maintain life care planning certification through the International Commission on Healthcare Certification (ICHCC).  The ICHCC’s current practice standards and guidelines were released in 2021 and should be followed by all persons certified by the Commission.  In addition to the ICHCC, three professional groups have developed standards for life care planning practice, to include the International Academy of Life Care Planners (IALCP), the American Association of Nurse Life Care Planners (AANLCP), and the American Academy of Physician Life Care Planners (AAPLCP).  The standards from all three professional groups have been analyzed and the outcomes published within the Journal of Life Care Planning (Gamez, Johnson & Stajduhar, 2017).  In summary, all three sets of published standards present the need for professional collaboration when developing a life care plan.  Specifically, the noted 2017 peer-reviewed life care planning publication concluded the following:

“Based upon a review of data from each of the three documents, overlap is apparent. Specific reference to collaboration is seen throughout all three standards of practice, reinforcing the interdisciplinary nature of life care planning.”

• ·       LIFE CARE PLANNING CONSENSUS REQUIREMENTS

In addition to published standards, consensus and majority statements have been developed for the practice of life care planning.  The most current version is found published within the Journal of Life Care Planning (Johnson, C; Pomeranz, J. & Stetten, N, 2018).  The publication outlines that the findings reached are applicable to all Life Care Planners, regardless of their educational/occupational background and/or professional affiliation.  Of note, 89 full consensus statements were published during 2018, secondary to the Delphi study, which evaluated decades of professional Summit information with the aid of Life Care Planners across multiple committees and rounds of formal analysis.

• o   Collaboration

Echoing the themes of published standards, the consensus reached through the past Delphi study included collaboration with health care providers/professionals as an essential requirement for the development of a life care plan.  Thus, such collaboration should be readily evident through clear documentation within an evidence-based life care plan.  Specifically, published life care planning consensus includes the following foundational requirements for a life care plan:

“84. Review of evidence-based research, review of clinical practice guidelines, medical records, medical and multidisciplinary consultation and evaluation/assessment of evaluee/family are recognized as best practice sources that provide foundation in life care plans.”

• o   Scope of Practice & Foundational Requirements

Life Care Planners emerge from a variety of health care and educational backgrounds, such as Nursing, Medicine, Allied-Health, Mental Health/Counseling, etc.  Each of these professionals has a well-defined scope of practice, in which they must remain, when developing a life care plan.  As such, rarely, if ever, is one person fully qualified to make all the recommendations for a comprehensive and evidence-based life care plan. Therefore, it is imperative that the Life Care Planner collaborate with appropriate and necessary treating and/or evaluating health care providers to obtain plan recommendations that are outside of their scope of practice.  More precisely, published consensus outlines the following requirements for the Life Care Planner:

“81. Life care planners seek recommendations from other qualified professionals and/or relevant sources for inclusion of care items/services outside the individual life care planner’s scope(s) of practice.”

As a basic example, Registered Nurses (RNs) cannot prescribe medications.  It would be outside of their professional scope to attempt such. Therefore, medication recommendations within the life care plan must have a foundation from a qualified health care provider who is able, by virtue of their scope of practice, to prescribe medications. 

In addition to establishing foundation through health care collaboration, a Life Care Planner can document direct connections between an evaluee’s medical records and/or health care providers’ testimony to the future care and treatment recommendations of their plans.  However, Life Care Planners should not attempt to fill in the informational gaps pertaining to the frequency and duration of future care and services when such matters are outside of their scope of professional practice(s) and were not clearly documented within the medical records or testimony reviewed.

Also, published life care planning consensus requires the Life Care Planner to include relevant evidence-based research and guidelines within their plan’s foundational framework.  Such resources may include guidelines from medical academies, professional associations and/or governmental agencies, etc. as well as peer-reviewed journal publications.  Based upon consensus, the overall research, resources and processes utilized during life care plan development must be reliable, consistent, transparent and credible.

• o   Cost Resources & Data

The consensus statements require verifiable data from appropriately referenced resources be used during the development of a life care plan.  The plan’s cost data, when reviewed through the same sources by another Life Care Planner, should be reproducible.  Also, the costs identified in a plan should be geographically specific to the evaluee.  Costs of medical care and treatment are not equivalent across the country, a state or even a larger region for that matter.  Moreover, the life care planning community has adopted the use of Usual, Customary and Reasonable (UCR) costs, as defined by the American Medical Association (AMA), for the development of a life care plan.  This matter is outlined within a field treatise, the Life Care Planning and Case Management Handbook (Fourth Edition, Weed & Berens, 2018).  Due to the requirements inherent for the defining of UCR, more than one cost source will need to be utilized by Life Care Planners in their plans.  The same requirement of multiple cost estimates is outlined within the published consensus statements.  Per consensus, the cost data of a life care plan should reflect market rate pricing and not be discounted in any manner.  Finally, as with all data and processes of the life care plan, the cost data utilized should be reliable, consistent, transparent and credible.

• o   Individualized Life Expectancy

Published consensus requires that the life care plan be individualized to the evaluee.  Such developmental requirements apply to all aspects of the plan to include the life expectancy projection.  Most Life Care Planners are not life expectancy experts, and therefore must rely upon the expertise of other professionals for an individualized account of the evaluee’s expected longevity.  The peer-reviewed life care planning literature outlines the complex methodological processes necessary to arrive at individualized conclusions of life expectancy for a life care plan, and strongly cautions against endorsing only general population findings.  As consistent with the need for medical foundation when qualifying treatment requirements outside of one’s scope of practice, the Life Care Planner, that is not a life expectancy expert, should defer life expectancy determinations to a qualified expert.  Otherwise, the Life Care Planner would be guilty of providing an opinion that violates accepted life care planning consensus and standards.

• ·       CASE SCENARIOS & REVIEW

Hypothetical case scenarios and subsequent reviews are offered below for illustrative and educational purposes regarding evidence-based life care plans:

• o   Case Scenario #1 (Traumatic Brain Injury Secondary to a Fall)

A 28-year-old male evaluee suffered a Traumatic Brain Injury (TBI) after falling from a third story building under construction. The TBI resulted in multiple long-term issues including executive deficits, vision deficits, hearing deficits, depression and anxiety.  Following the completion of inpatient rehabilitation care, the evaluee was discharged to his home within the community.  A Registered Nurse (RN), who is also a Certified Life Care Planner (CLCP), completed a life care plan for the evaluee.  The life care plan’s narrative included a summary of the medical treatments received thus far by the evaluee from the medical records.  Also, the life care planning narrative outlined past diagnostic testing completed, a list of the evaluee’s current medications and dosing, and the identification of all records that had been analyzed by the Nurse.  Her plan included outpatient medical services the evaluee was actively receiving: Physiatry, Neuro-Ophthalmology, Neurology, Audiology, and Psychology.  Based upon her clinical knowledge, the RN, independently and without collaboration, determined all the future medical and psychological care, diagnostic testing, medications, future attendant care, and other support services needed by the evaluee, including their future frequency and duration.  Such future care information was not found within any of the medical records reviewed and testimony from the health care providers had not been obtained before release of the life care plan. 

• o   Review of Case Scenario #1

Development of the life care plan did not include any type of documented collaboration with a treating or evaluating health provider for the evaluee.  Also, there was not any direct link made between the medical records reviewed and the specific treatment/care recommendations as issued within the life care plan by the Nurse.  Moreover, the Life Care Planner did not identify any clinical practice guidelines, empirical research or peer-reviewed literature as specific foundation for the content of her plan.  Finally, the Life Care Planner did not have testimony from a treating or evaluating health care provider for foundation either.  In summary, the RN acted well beyond her scope of practice when she independently opined about future care and treatment for the evaluee absent necessary medical foundation for the same.  Ultimately, the life care plan lacked the required credible and reliable data, as well as the overall foundational information necessary to formulate an evidence-based plan that is consistent with published life care planning consensus and standards.

• o   Case Scenario #2 (Traumatic Burns Secondary to a Motor-Vehicle Accident)

A 56-year-old female was involved in a motor vehicle accident (MVA).  The car exploded before the evaluee could be evacuated by emergency personnel.  As a result, the evaluee suffered second and third degree burns over 60% of her body.  After receiving extensive acute care services, she was discharged home and began outpatient services, wherein she received care and treatment from a Physician Burn Specialist, Reconstructive Burn Surgeon, Physical Therapist, Occupational Therapist, and Psychologist. The evaluee’s subsequent life care plan was developed by a Certified Rehabilitation Counselor (CRC).  The Life Care Planner completed an in-home assessment of the evaluee, and multiple consultations were accomplished by him with the outpatient medical and clinical treatment teams.  The consultative recommendations received were carefully documented by the Life Care Planner and fully endorsed through signature by the treatment teams.  Subsequently, these medical and clinical recommendations were included into the evaluee’s life care plan. The CRC independently made recommendations for future vocational rehabilitation services within the life care plan.  Also, the CRC made direct reference to published clinical practice guidelines for burn care, and peer reviewed journals regarding the psychological supports necessary to aid with emotional adjustment following a severe burn.  Also, additional pertinent details of current treatment, as found within the medical records, was noted within the life care plan.  The life care plan included a comprehensive list of all medical, clinical and legal documents reviewed during development.  Present-value calculations were deferred to an Economist and total calculations were not issued by the Life Care Planner within the plan.  Finally, the Life Care Planner deferred the determination of an individualized life expectancy for the evaluee to a qualified expert.

• o   Review of Case Scenario #2

This Life Care Planner included multiple areas of foundation needed for an evidence-based life care plan.  Of important note, the CRC remained within his scope of practice and relied upon other qualified health care providers, published clinical guidelines, literature, and medical records to support the recommendations of the plan. The CRC appropriately deferred other related determinations to qualified experts (i.e., present-value calculations and life expectancy).  Overall, the life care plan contained credible and reliable data as well as the foundational information necessary to formulate evidence-based conclusions that are consistent with published life care planning consensus and standards.

EVIDENCE-BASED EARNING CAPACITY ASSESSMENTS

• ·       EARNING CAPACITY METHODOLOGY & STANDARDS

Similar to the life care plan, the determination of an evaluee’s earning capacity before and after an injury and/or chronic health condition is a complex endeavor, requiring adherence to a peer-reviewed and accepted methodology, as well as professional standards.  Typically, professionals completing these assessments have an educational and professional background in vocational rehabilitation.  A properly developed earning capacity analysis should incorporate evaluee assessment information, standard classifications, relevant research data, statistical information and foundation from necessary medical and/or clinical professionals.  The objective evidence, information and data gathered should inform the final clinical judgements reached regarding an individual’s overall capacity for employment and wages within the competitive labor market.

The Commission on Rehabilitation Counselor Certification (CRCC) is the governing national professional organization that manages the Certified Rehabilitation Counselor (CRC) credential as maintained by many of the vocational rehabilitation professionals completing earning capacity assessments for forensic purposes.  Published CRCC forensic standards require the utilization of methodologies appropriate to the evaluation process performed.  There are multiple published earning capacity methodologies within the peer-reviewed vocational rehabilitation literature.  These published methodologies provide the structure and guidance necessary to arrive at objective and valid earning capacity conclusions.  A Forensic Vocational Rehabilitation Consultant (FVRC) should be able to discuss the specifics of the published earning capacity methodology adhered to during the assessment process and fully describe the data/evidence utilized for final clinical judgements/opinions.

• ·       CONTENT ANALYSIS & OBJECTIVE DATA

Qualitative analysis of the content factors found within earning capacity assessment reports has been accomplished and the empirical findings were published within the peer-reviewed Rehabilitation Professional journal (Robinson, Young & Pomeranz, 2009).  Specifically, the research determined 22 factors were included within at least 50% or more of the forensic vocational rehabilitation reports analyzed regarding employability and earning capacity.

The specific 22 content factors identified included: 

1. Employment-Past Work-Job Title (100% of the reports)

1. Personal-Gender (100 % of the reports)
2. Educational-Secondary (97% of the reports)
3. Employment-Past Work-Employment Data (97% of the reports)
4. Personal-Age (97% of the reports)
5. Employment-Past Work-Job Duties (90% of the reports)
6. Medical-Treatment History (90% of the reports)
7. Purpose of Assignment (90% of the reports)
8. Employment-Past Work-Employer Name (87% of the reports)
9. Employment-Past Work-Pay Rate End (80% of the reports)
10. Functional Limitations (70% of the reports)
11. Medication-Prescription (67% of the reports)
12. Transportation-Driver’s License (67% of the reports)
13. Psychometric-Vocational Testing (67% of the reports)
14. Familial-Martial Status (63% of the reports)
15. Educational-Secondary-Date of Highest Grade (60% of the reports)
16. Secondary Medical Conditions (60% of the reports)
17. Educational-Secondary-Highest Grade (57% of the reports)
18. Employment-Past Work-Physical Requirements (57% of the reports)
19.  Familial-Children (57% of the reports)
20. Literature Resources-DOT (57% of the reports)
21. Educational Factor-Vocational (53% of the reports)

The core 22 factors identified through empirical analysis should, at minimum, be considered by a FVRC during the course of analyzing an evaluee’s earning capacity and arriving at evidence-based conclusions.  Also, during the course of earning capacity assessment, evidence-based practice requires the consultant to directly consider objective data.  Specifically, published CRCC standards require the FVRC utilize objective data for the determination of unbiased evaluation conclusions (CRCC Code, Section F: Forensic Services).  The sources of such data may vary, but often include information from governmental surveys, wage and employment databases, professional associations, non-profit organizations, trade associations, research centers, peer-reviewed literature, published professional/medical guidelines, industry literature, and United States  Department of Labor (USDOL) publications, as well as the evaluee’s tax, employment and academic records, etc.

• ·       FUNCTIONAL, ENVIRONMENTAL & MENTAL CAPACITY  DETERMINATIONS

Multiple published CRCC advisory opinions outline that it is outside the scope of professional practice for a Certified Rehabilitation Counselor (CRC) to determine any type of functional work capacity for an individual.  Moreover, based upon vocational rehabilitation treatises, such decisions should be made by qualified and licensed physicians and/or mental health practitioners (Robinson, 2014 and Weed & Field, 2012).  In contrast, the FVRC’s professional role includes evaluating and determining the individualized impact that medically and/or clinically established physical, mental and/or environmental guidelines will have upon an evaluee’s employability, placeability and overall earning capacity.  In summary, it is professionally inappropriate for a FVRC to determine or assign a specific occupational strength level or other functional, environmental, cognitive or psychological work parameter to an evaluee in the absence of foundation established by a licensed physician or other qualified health care provider.

• ·       CLINICAL JUDGMENTS/OPINIONS & EARNING CAPACITY DETERMINATIONS

Ultimately, within the guiding context of a published methodology and professional standards, and based upon assessment findings, objective data, research analysis and the application of informed clinical judgement, the FVRC can, to a reasonable degree of probability, reach conclusions regarding an evaluee’s pre-injury and post-injury earning capacities.  Specifically, published peer-reviewed literature within Rehabilitation Professional (Field, Choppa & Weed, 2009) outlines that clinical judgements/opinions should include relevant information/data, follow a widely accepted and peer-reviewed methodology, adhere to relevant standards of practice, utilize statistical studies and, when professionally necessary, include valid and reliable testing instruments.  Finally, the authors outline that the judgements/opinions reached by the Rehabilitation Professional must be unbiased, ethical and professional in nature.

After appropriate clinical judgements/opinions are finalized and the overall earning capacity assessment report is completed, the information can be provided to a Forensic Economist (FE) for calculation(s) related to the determination of present value.  A forensic vocational rehabilitation treatise (Robinson, 2014) describes the following, relative to the professional hand-off between the Vocational Rehabilitation Expert (VE) and the Forensic Economist (FE):

“As will be seen, the typical relationship between an FE and a vocational rehabilitation expert (VE) is that the VE provides the FE with differentiations of a postinjury earning capacity scenario from a preinjury scenario in a personal injury case, so that the FE can estimate the present value of lost earning capacity and perhaps other categories of economic damages.”

 

• ·       CASE SCENARIOS & REVIEW

Hypothetical case scenarios and subsequent reviews are offered below for illustrative and educational purposes regarding evidence-based earning capacity assessments:

• o   Case Scenario #1 (Herniated Discs Secondary to a Slip & Fall)

A 55-year female was evaluated by a Forensic Vocational Rehabilitation Consultant (FVRC) secondary to a slip and fall that caused herniated discs for both her lumbar and cervical spine.  After multiple spine surgeries and the establishment of Maximum Medical Improvement (MMI), the evaluee continued to report cervical, lumbar and right leg pain, as well as moderate to severe functional deficits.  She was not actively working.  The FVRC did not review the evaluee’s past tax records, testimony or employment file information during his analysis.  The FVRC concluded based upon his professional experiences and assessment, the evaluee was physically unable to work and earn a gainful wage within the economy.  He specifically indicated the evaluee was physically incapable of functioning at the United States Department of Labor’s (USDOL) Sedentary strength level for a full-time or part-time occupation within the open labor market.  A treating or evaluating physician had not issued any medical conclusion regarding the evaluee’s work capacities.  Also, the FVRC concluded it was likely the evaluee would have worked until the age of 85, had the fall not occurred, as a Registered Nurse (RN), receiving wages at the 90th percentile for the occupation nationally throughout her remaining career.  However, the evaluee had only demonstrated maximum mean annual earnings as a Registered Nurse (RN) in her region before the fall.  The FVRC did not make any reference to published work-life expectancy data before rendering his opinions.

• o    Review of Case Scenario #1

The case scenario has multiple professional errors and omissions.  The FVRC did not have the necessary medical foundation to support his independent conclusion that the evaluee had physical capacities that were functionally below USDOL Sedentary strength.  Physical capacities are determined by appropriately licensed health care providers and are certainly beyond the scope of practice for a Rehabilitation Counselor.  Secondly, the FVRC did not reference a published methodology, or any objective data, to determine past or future earning capacities for the evaluee.  Lastly, the FVRC did not incorporate any objective data from an empirical source to define the evaluee’s work-life expectancy.  Due to the nature and extent of these professional errors and omissions, the FVRC would not be able to derive reliable and valid evidence-based earning capacity conclusions for the evaluee.

• o   Case Scenario #2 (Traumatic Brain Injury Secondary to a Motor-Vehicle Accident)

A 45-year-old male sustained a Mild Traumatic Brain Injury (M-TBI) secondary to a motor-vehicle accident (MVA).  The MVA and M-TBI resulted in mild deficits related to concentration, attention and processing speed for the evaluee, as described within the treating physician’s records and confirmed through valid neuropsychological testing by a qualified Neuropsychologist.  A Forensic Vocational Rehabilitation Consultant (FVRC) was requested to complete an earning capacity assessment of the evaluee.  The FVRC completed an onsite assessment of the evaluee with standardized testing.  She subsequently consulted with the treating Brain Injury Physiatrist and the evaluating Neuropsychologist regarding the evaluee’s overall capacities for future work.  The consult findings were documented through signed summaries from the health care providers and included into the earning capacity assessment report.  Also, the FVRC noted that she followed the peer-reviewed and published RAPEL methodology during completion of her earning capacity assessment and documented the same methodological process within the report.  The evaluee’s employment files and taxes for multiple years (both before and after the MVA) were reviewed.  Published USDOL employment and wage statistics were analyzed for the evaluee’s region and included within the earning capacity assessment report.  A standard Transferability of Skills Analysis (TSA) was performed to define the evaluee’s employability.  Published and peer-reviewed work-life expectancy data was gathered and included in the report.  Based upon all the assessment, data and information researched and analyzed, the FVRC rendered conclusions pertaining to the evaluee’s partial loss of wage-earning capacity after the accident, and she quantified the specifics of the earning capacity loss through her report.  The findings from the FVRC were subsequently reviewed by an evaluating Forensic Economist (FE) who applied present-value calculations to the data and earning capacity conclusions reached by the FVRC. 

• o   Review of Case Scenario #2

The earning capacity evaluation process described above followed accepted standards, methods and data requirements necessary to facilitate arrival at evidence-based earning capacity conclusions for the evaluee.  Specifically, the FVRC utilized an accepted published methodology, objective data, appropriate analysis tools, statistics and necessary medical/clinical foundation to reach informed conclusions regarding the evaluee’s earning capacities.

SUMMARY & CONCLUSIONS

Life Care Planners and Forensic Vocational Rehabilitation Consultants have similar categorical requirements for the production of their evidence-based evaluation reports.  Life care plans and earning capacity assessment reports both require the utilization of an accepted published methodology and the utilization of objective data, research and guidelines to objectively substantiate the professionals’ overall conclusions.  Moreover, both the Life Care Planner and the Forensic Vocational Rehabilitation Consultant must rely upon an appropriate health care foundation when specific determinations necessary for their opinion formation are outside of their professional scope(s) of practice.  Finally, these two types of damage experts must apply the parameters of informed clinical judgement/opinion formation to reach objective conclusions within their scopes of practice.  The utilization of life care planning and earning capacity assessment experts well-versed in necessary evidence-based practice requirements is critically important to the establishment of valid and reliable damage conclusions after an injury and/or a chronic health condition has occurred.  The Life Care Planner or Forensic Vocational Rehabilitation Consultant that does not adhere to established evidence-based parameters for the determination of their conclusions places their forensic work product in jeopardy of not being accepted into the evidentiary record.

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