Winter 2002/03 issue of the Expert Witness newsletter (volume 7, issue 3)

Contents:

  • Under-reporting of Income by the Self-Employed
    • by Scott Beesley
    • In this article Scott Beesley discusses a technique that can be used to estimate the extent to which a self-employed worker has under-reported his net business income.
  • Quantifying Soft Tissue Injury in Neck Injured Patients
    • by Gordon McMorland
    • This article was prepared by Dr. Gordon McMorland – a Calgary-based chiropractor and the director of the Canadian Whiplash Centre. Dr. McMorland discusses a new technology that can be used to effectively and objectively assess cervical range of motion and neck strength. Together, these measurements quantify the functional capacity of the neck.
  • Management fees
    • by Derek Aldridge
    • In this article Derek Aldridge briefly discusses the concept of management fee awards for injured plaintiffs. He addresses the possibility that, while a plaintiff will incur additional costs when using a financial manager, she may also earn a higher return on her investments.

Management fees

by Derek Aldridge

This article first appeared in the winter 2002 issue of the Expert Witness.

We occasionally encounter cases in which it is argued that the injured plaintiff requires an additional award to pay for the services of a financial manager (that is a “management fee” award). I have recently been involved in a couple of cases in which I had to consider this issue in detail, and in this article I will share some of my thoughts on the matter.

Typically (in my experience) these cases involve seriously injured plaintiffs (often children) with large loss of income and cost of care claims. It is anticipated that the plaintiff will be unable to manage his own financial affairs, and will therefore need the assistance of a financial advisor. The advisor (most banks and related financial institutions provide these services) will invest the plaintiff’s money, ensure that his bills are paid, prepare his taxes, and so forth. The annual cost of these services is mainly based on a percentage of the funds under management each year (though the actual cost schedules are often complex). Because the plaintiff will need to spend part of his award on a financial manager, he therefore needs additional funds to cover these costs (that is, a management fee award). The difficulty arises when we consider whether or not the plaintiff will receive a higher rate of return on his investments, due to the expertise of the financial manager. That is, it may be the case that the financial manager’s fee will be at least partially offset by the increased return on investment. (For example, if I am paying a financial manager $5,000 per year, I expect that the return to my investments will be at least $5,000 per year greater than if I did not use a financial manager.)

However, this is not a simple issue. When we determine a reasonable real discount rate to use in our calculations, we assume that plaintiffs will invest their money in simple low-risk investments such as government bonds. It is our understanding that this is their only obligation – they need to do better than keeping their money in a safe deposit box, but they do not need to pursue an “active” (and more risky) investment strategy. However, when the plaintiff uses a financial advisor, what sort of service should we expect that the plaintiff will request? If the plaintiff requests that the manager act very conservatively and invest the money in a similar manner as is expected of a plaintiff-investor, then there will be no increased return to offset the cost of the financial manager. A management fee award will be needed. Alternatively, if the plaintiff is obligated to make full use of the financial advisor, then presumably the advisor will do better than the conservative government bond strategy assumed for a plaintiff-investor, and there will be a higher return to offset the costs. It may be the case that the total net return (after management fees) is higher than the return that can be earned by simply investing conservatively in government bonds. In order to properly estimate the awards in this case, we would need to estimate the expected long-run real rate of return that the manager will earn, re-estimate all our future loss calculations, and then estimate the management fee. Note that in any province with a mandated discount rate, the issue is even more complex, since the economist does not have the option to simply change the discount rate based on the anticipated investment strategy of the plaintiff.

Suppose it is the case that a plaintiff can use a financial manager and earn a net real return that is greater than the “normal” real rate of return earned by a plaintiff-investor. Why then would we not expect that all plaintiffs should use investment advisors, in order to best mitigate their losses? In a province with a mandated discount rate, if a higher net return can be earned using an investment advisor, then why does the mandated rate not reflect this?

These are complicated issues. In my view the preferred approach in most cases is to separate the plaintiff’s need for “financial assistance” from the actual management of her funds. “Financial assistance” would include the day-to-day services needed by a plaintiff who cannot manage her own financial affairs – such as bill-paying, handling spending money, paying taxes, and so forth. These services could presumably be handled by an accountant or a lawyer. The services would not include actual investment management – it would be anticipated that the person assisting with the plaintiff’s financial affairs would arrange for conservative investment of the plaintiff’s award in the usual low-risk vehicles. If it could be determined that this level of financial assistance would cost (say) $5,000 per year, than that cost could simply be incorporated as a normal cost of care, without introducing the difficult and contentious issue of financial management.

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Derek Aldridge is a consultant with Economica and has a Master of Arts degree (in economics) from the University of Victoria.

Quantifying Soft Tissue Injury in Neck Injured Patients

by Gordon McMorland

This article was originally published in the Winter 2002/03 issue of the Expert Witness.

The ability to obtain objective, reliable functional measurements of the neck allows for extremely effective diagnosis and rehabilitation for chronic neck pain and whiplash-injured patients. The Canadian Whiplash Centre now offers the Hanoun Multicervical Rehabilitation Unit (MCU)Hanoun Multicervical Rehabilitation Unit (MCU) as an adjunct to traditional forms of assessment and rehabilitation. This leading edge, digital technology provides comprehensive objective and valuable cervical functional diagnostic data. It is used to effectively and objectively assess cervical range of motion and neck strength. Together, these measurements quantify the functional capacity of the neck. This differs from other functional capacity evaluations, in that this technology allows us to specifically measure the functional ability of the injured neck. Once functional deficits have been identified and diagnosed, the system can then be used to efficiently and accurately rehabilitate the injured area(s).

We have never been able to objectively and reliably assess the strength of the supporting neck musculature with as much accuracy as we can with this new technology. The MCU has proven reliability and reproducibility for measuring both neck mobility and, more importantly, neck strength.

Using a sport medicine approach to injuries, we know that regaining muscle strength following injury is a key component to recovery. Quantifying muscle strength guides the decision making in rehabilitation and also acts as an indicator for ability to return to activity. Reduced muscle strength is correlated with reduced functional capacity.

Supported by Research

Recent research out of the Melbourne Whiplash Centre and LaTrobe University in Australia has identified neck muscle weakness, as measured on the MCU, as a common finding in chronic neck-injured (whiplash) patients. This research has quantified the effects of rehabilitating these strength deficits. Correlation has been established between improvements in neck strength and reduction in pain and disability in the chronic neck pain patient.

The research on using this technology to assess cervical functional capacity and then rehabilitate functional deficits are summarized as follows:

Chronic neck pain patients (average duration of injury was 8.3 years) underwent a rehabilitation program on the MCU (average treatment length 6.4 weeks). 76.6% of these patients doubled their neck strength, improved their neck mobility by 25% and reduced their pain and disability by at least 50% over the course of this treatment program. At six month follow up they had maintained approximately 90% of these gains without the need for further treatment.

We think that these superior results have been achieved because we can now objectively assess and prescribe exercise to strengthen the injured area(s) with more accuracy and reliability than ever before. If we follow the sport medicine model of injury management, then it is generally accepted that exercise as a core component to rehabilitation is beneficial. The difficulty lies in gauging the quantity and type of exercise that will be most beneficial and more importantly, not detrimental. Using objective measures form the MCU assessment allows us to judge this more accurately. The MCU also allows us to precisely control the intensity of exercise, the specificity of the exercise to the injured area(s) and the quantity of the exercise.

Graduating the patient from passive treatment modalities into active rehabilitation is now generally considered the gold standard for treatment of whiplash injuries. Our rehabilitation program allows us to objectively quantify (measure) functional deficits such as weakness and reduced range of motion in the cervical spine, and then custom tailor rehabilitation using this cutting edge technology to specifically address the deficit(s) responsible for the patient’s disability.

Medical Legal Application

The cervical functional capacity evaluation can be used to quantify or substantiate damages that have resulted from the injury. Comparison of the patient’s functional ability can be compared to established benchmarks such as that seen in the normal, uninjured population as well as in rehabilitated chronic neck-injured patients. Damages can accurately and reliably be assessed and quantified. Some preliminary work has also been done to correlate the individual’s performance with sincerity of effort. The results of the functional capacity evaluation can then be correlated with the individual’s clinical picture to explain ongoing problems.

As this is quite a new approach to an age-old problem, the patient population that has sought out this treatment has typically been those that have exhausted other, traditional treatment approaches. Even though our results to date are quite encouraging for these chronic patients, we feel there may be more benefit if this treatment can be introduced earlier. Having the ability to quantify the nature and extent of the injury as early as possible will allow for appropriate and effective treatment to be introduced quickly. By re-measuring as the patient progresses through rehabilitation, clinical decisions to either continue, change or discontinue treatment become more objectively supportable. This can help to preventing an individual from entering into a pattern of chronic pain. As a general rule, if the individual is not demonstrating significant improvement and recovery from their injuries at 12 weeks, post injury, then we recommend a functional assessment to diagnose if muscle weakness/atrophy is contributing to the delayed recovery.

We have also had some early success in having section B insurers cover the cost of this rehabilitation. Claims managers and their supervisors have provided very positive feedback about this program. They appreciate the fact that this treatment incorporates objective, reliable and repeatable measurements of the neck’s functional capacity, which allows us to track patient progress as well as identify firm end-points to the rehabilitation.

If you would like more information or have any questions regarding this new technology, or if you feel that our rehabilitation program we offer may be of benefit to your clients, please do not hesitate to contact the director of the Canadian Whiplash Centre, Dr. Gordon McMorland at (403) 270-7237.

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Dr. McMorland is a Calgary-based chiropractor. He is the director of the Canadian Whiplash Centre; and has participated as a researcher in both the faculties of Kinesiology and Medicine at the University of Calgary.

Under-reporting of Income by the Self-Employed

by Scott Beesley

This article was originally published in the Winter 2002/03 issue of the Expert Witness.

A common problem encountered when attempting to estimate the incomes of the self-employed is that those individuals are able to under-report their revenues and over-report their expenses. Many techniques have been suggested to correct for this bias in reporting, but most such techniques are ad hoc in nature. Also, as most techniques only attempt to adjust expenses (to remove personal expenses from reported business expenses), they are unable to capture the effect of unreported revenue.

Consider the example of a small-scale home renovation contractor. The vast majority of his customers have no use for a receipt, since the work is personal rather than a business expense. When the purchaser is having work done on a rental property, a receipt may be requested, but even then the under-the-table transaction may make both parties better off. (In some cases a rental property will show a loss from mortgage interest, utilities and property taxes alone, so the added “loss” resulting from claiming a renovation expense might be redundant to the landlord.) A second, more general example is the existence of one-off barter deals and bartering systems. If our self-employed renovator can make a deal with another provider to trade $5,000 worth of services, the result is that each under-reports revenue by $5,000. In addition, each probably claims GST input credits on any materials purchased, while not collecting any GST on the sale. Thus there is good reason to look for a “true income” estimator which builds in the possibility of non-reported revenue

Recently, Dr. Herb Schuetze, of the University of Victoria, has developed an objective method for estimating the average amount of under-reporting undertaken by the self-employed. (See Herb Schuetze, “Profiles of Tax Non-Compliance Among the Self-Employed in Canada” Canadian Public Policy, June 2002.)

He uses data regarding family expenditures on food to impute the true income level of self-employed persons. His fundamental assumption is that the fraction of true family income devoted to expenditures on food is the same for the self-employed as for wage earners. A second presumption is that, since the amounts involved are small, persons reporting family expenditures will not worry that their tax evasion will be revealed because their food consumption is inordinately high. Thus, they are assumed to report their food expenditures correctly. By assuming that families of the same size who report the same expenditures on food will have the same incomes, Dr. Schuetze is able to calculate the “true” incomes of self-employed individuals by comparing their food expenditures to the expenditures of wage earners.

For example, assume that most four-person families with after-tax income of $50,000 spend $10,000 on food. If we observe that a family headed by a self-employed individual spends $10,000 on food, it might reasonably be assumed that that family’s income was $50,000 (after-tax). Hence, if that individual had reported only $42,000 of income, Dr. Schuetze would conclude that that individual had under reported his or her income by $8,000.

Employing this general approach, Dr. Schuetze controls for (takes into account) various household characteristics, such as the level of education of the head of the household, the age of any children, the region in which the family lives, and the value of their house if it is owned. The study looks at data from 1969 to 1992, at six points in time.

The results indicate that non-compliance among the self-employed was significant enough to be worthy of further study, and future added attention from the Canada Customs and Revenue Agency (CCRA). The estimates cover families in which at least 30 percent of reported income was generated through self-employment. For those families in which either the husband or wife, but not both, were self-employed, it was estimated that 12 to 21 percent of income was not reported. The figure was significantly lower when both spouses were self-employed (you cannot income-split both ways!).

Another interesting conclusion is that there was no pattern across time and across educational groupings, but there was a significant variation across different occupations. The construction and service industries had the highest degree of non-reporting, whereas product fabricating apparently afforded the least opportunity for evasion. (This is in complete agreement with Economica’s experience in performing loss assessments over the last few years.) The reported income of those in construction had to be multiplied by a factor of 1.46 to estimate true income, implying that a full 31.5 percent of total income (= 0.46/1.46) went unreported. When we consider that that figure is itself based on a sample including households which received as little as 30 percent of their reported income from self-employment, we conclude that for those who are predominantly self-employed, the applicable multiple must be much higher. Indeed, in those cases in which the self-employed person’s reported income is roughly zero, (and we have encountered a surprising number of these) the multiple is infinite!

Finally, we note that Dr. Schuetze grants that his measurement of the income from self-employment is in fact in error (biased downwards) because of exactly the issue being studied! That is, if a family reports $30,000 in earned salary and $10,000 from self-employment, the apparent share from self-employment is 25 percent. At that level they would not have been included in the self-employed pool, for the purpose of his study. (He required at least 30 percent of income to be from self-employment before considering an individual to be self-employed.) If, however, that couple had another $20,000 in hidden income, the true fraction from self-employment is 50 percent. I suspect that the result is that the overall “fraction of income hidden” estimates are, if anything, conservative.

Dr. Schuetze’s paper points out that because of the steady increase in the fraction of the population in self-employment, tax non-compliance is becoming more important over time. He suggests that the results of his analysis may be helpful in identifying occupations and demographic characteristics associated with non-compliance. The article certainly establishes that a marked level of tax non-compliance is not at all unusual among the self-employed in Canada.

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Scott Beesley is a consultant with Economica and has a Master of Arts degree (in economics) from the University of British Columbia.