This article first appeared in the winter 2004 issue of the Expert Witness.

The National Association of Forensic Economics (NAFE, nafe.net) has members – including Economica – across the United States and internationally. It publishes the Journal of Forensic Economics which contains articles of interest to economists, accountants, finance and business professionals, vocational counselors, lawyers, and actuaries engaged in such fields as business valuation, commercial litigation, employment litigation, and personal injury and wrongful death torts.

NAFE also sponsors programs at regional and national economic conferences and has its own Winter and International meetings. Additionally, members communicate via an internet mailing list and quarterly newsletters.

As a condition of membership, members pledge to adhere to NAFE’s Statement of Ethical Principles and Principles of Professional Practice. We reproduce the statement below.

 

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When providing expert opinion for use as evidence by the trier of fact, a NAFE member pledges, as a condition of membership, adherence to the following:

1. Engagement

Practitioners of forensic economics should decline involvement in any litigation when they are asked to assume invalid representations of fact or alter their methodologies without foundation or compelling analytical reason.

2. Compensation

Practitioners of forensic economics should not accept contingency fee arrangements, or fee amounts associated with the size of a court award or out-of-court settlement.

3. Diligence

Practitioners of forensic economics should employ generally accepted and/or theoretically sound economic methodologies based on reliable economic data. Practitioners of forensic economics should attempt to provide accurate, fair and reasonable expert opinions, recognizing that it is not the responsibility of the practitioner to verify the accuracy or completeness of the case-specific information that has been provided.

4. Disclosure

Practitioners of forensic economics should stand ready to provide sufficient detail to allow replication of all numerical calculations, with reasonable effort, by other competent forensic economics experts, and be prepared to provide sufficient disclosure of sources of information and assumptions underpinning their opinions to make them understandable to others.

5. Consistency

While it is recognized that practitioners of forensic economics may be given a different assignment when engaged on behalf of the plaintiff than when engaged on behalf of the defense, for any given assignment, the basic assumptions, sources, and methods should not change regardless of the party who engages the expert to perform the assignment. There should be no change in methodology for purposes of favoring any party’s claim. This requirement of consistency is not meant to preclude methodological changes as new knowledge evolves, nor is it meant to preclude performing requested calculations based upon a hypothetical – as long as its hypothetical nature is clearly disclosed in the expert’s report and testimony.

6. Knowledge

Practitioners of forensic economics should strive to maintain a current knowledge base of their discipline.

7. Discourse

Open, uninhibited discussion is a desired educational feature of academic and professional forensic economic conferences. Therefore, to preserve and protect the educational environment, practitioners of forensic economics will refrain from the citation of oral remarks made in an educational environment, without permission from the speaker.

8. Responsibility

Practitioners of forensic economics are encouraged to make known the existence of, and their adherence to, these principles to those retaining them to perform economic analyses and to other participants in litigation. In addition, it is appropriate for practitioners of forensic economics to offer criticisms of breaches of these principles.

by Steve Babitsky and James Mangraviti, Jr.

Steve Babitsky and James Mangraviti, Jr., of the Massachusetts consulting firm, SEAK, have written a book entitled, How To Excel During Depositions: Techniques For Experts That Work. They have graciously given us permission to reprint the following excerpt from that book. Although their tips are specifically concerned with answers to questions at depositions, most of their advice applies equally well to cross-examination.

This article was originally published in the summer 1999 issue of the Expert Witness.

Avoid Absolute Words

You are well advised to avoid, where possible, absolute words such as “always” and “never.” Absolute words are frequently an invitation to, and fertile grounds for, cross-examination by counsel. Counsel will attempt to damage your credibility by first getting you to make an absolute statement. She will then use counterexamples in an effort to show the falsity of your statement.

Don’t Elaborate or Volunteer

Volunteering information can be one of the biggest mistakes an expert makes at deposition. Generally, an expert should answer only the questions she is asked and not volunteer information. The volunteering of information will almost always result in new lines of cross-examination. It may also disclose information to which counsel otherwise never would have become privy.

Be Careful When Using Hedge Words

You need to be careful when using hedge words when expressing your opinion. Such words include “I guess,” “I believe,” “it seems,” “it’s possible,” and “I would say.” The only reason that you are testifying is to give an opinion. Hedge words and phrases can quickly undermine your opinion and are an invitation for additional cross-examination. Worse, counsel may be able to make a motion to have your entire testimony stricken because expert guessing is not allowed under the rules of evidence.

Example:

Q: That’s your “guess,” sir?

A: Well, what I meant to say, that it was my opinion that….

Lesson: The expert needed to avoid the hedge words. If he had an opinion he believed in, he should have stated it without employing the hedge words.

Concessions

In answering questions honestly, you may have to make an occasional concession. If you make the concession graciously and move on, you will exude confidence, integrity, and flexibility. If, on the other hand, you doggedly refuse to give an inch, you may come off as rigid and partisan.

The most common error the beginning expert makes in a deposition is the failure to concede an obvious and irrefutable point out of misguided loyalty to his or her side of the case…. Quibbling over the possible exceptions or equivocating in some way helps no one.

“I Don’t Know”

If you are asked a question that you do not know the answer to, your answer should be, “I don’t know.” There is absolutely nothing wrong with this response if you genuinely do not know the answer to the question. There are probably thousands of questions that can be asked of experts in any discipline to which they have no answer. The more the expert hesitates or tries to avoid saying, “I don’t know,” the more emphasis is given to this “lack of knowledge” by the jury or fact finder. No amount of hesitation will bring the answer to you if you do not know it.

Example:

Q: If those wrist rests were unavailable prior to 1991, would you agree she had a higher probability then of being in a neutral position?

A: I don’t know. That’s an interesting question. I don’t know. I mean I guess that’s my answer, I don’t know. But I think the wrist rests certainly emphasizes, even though you have the Ridyard’s ergonomic assessment of 1994, if Miss Sanford and/or her supervisor were trained, that would not have been a product of choice.

Lesson: If you allow yourself to get flustered, your lack of knowledge will be emphasized to the jury. The expert in this example would have been better served by replying, “I don’t know” and then sitting quietly and waiting for the next question.

“I Don’t Recall”

When asked about a fact, situation, or occurrence that you honestly do not remember, the best answer is, “I do not remember” or “I don’t recall.” This is only an appropriate answer when you honestly have no recollection. Perjury ramifications aside, an endless string of “I don’t recalls” (or even one that may seem hard to believe) may tend to damage your credibility. If your response is that you do not recall, counsel may then attempt to refresh your memory. This is permissible under the rules of evidence.

Beware of Open-ended Questions

You should be cautious when dealing with open-ended questions. These questions invite long, rambling answers. Counsel may be trying to get you to volunteer information not called for by the question. If you do volunteer information, it is likely that this information will be used against you during cross-examination. You should therefore answer open-ended questions as concisely as possible, being careful not to provide information that was not asked for. Experts are better served by brief, succinct replies to open-ended questions. If counsel has follow-up questions, let her ask them. Don’t do the lawyer’s job for her.

Avoid Slang

Avoid slang expressions when replying to questions. When they are transcribed and read back to a jury, these expressions diminish the value of your reply and can make you sound almost illiterate. Most slang expressions slip from experts unintentionally. To avoid making such a slip, you will need to maintain your concentration and focus.

Example:

Q: Now, sir, you were asked on direct examination about the history that you took from Ronald Evans, right?

A: Uh-huh.

Q: And the history is the story that he tells you, correct?

A: Uh-huh.

Q: Is that a yes?

A: Yes, it is

Q: Are you familiar with an organization called M.O.R. Incorporated, sir?

A: Nope.

Lesson: The expert’s use of slang cheapens his testimony and diminishes his credibility.

Counsel’s “Bumble and Fumble” Gambit

Do not help counsel when he is apparently bumbling or fumbling with some type of technical question. Experts are frequently tricked into volunteering key information by such real or feigned ignorance. Let counsel bumble or fumble all they want. Remember, you are there to answer questions, not to assist counsel in framing them correctly.

Yes or No Responses

If counsel asks for a yes or no response and you can answer the question with a yes or a no, endeavor to do so. If counsel attempts to insist on a yes or no answer to questions that cannot be answered in that fashion, you can state, “I cannot answer that question with a yes or no reply.” It will then be up to counsel to either let you explain your answer or rephrase his question.

What to Do When You Make a Mistake

Expert witnesses are not expected to be perfect. During a long and arduous deposition, you may misspeak or make a mistake or error. If you do make a mistake, you should correct the error on the record as soon as you recognize your error. “I want to correct a statement I made a few minutes ago. I stated that the 1991 EMG was related to the surgery. That is incorrect.” Counsel may quickly challenge you on your mistake before you have an opportunity to correct it. In that case, admit your error graciously. What you want to avoid after making a mistake is making the matter even worse by your inability or unwillingness to admit the mistake. This could make you look biased. If you discover your mistake after the deposition concludes, notify counsel and correct the deposition transcript when it comes for your signature.

“I Don’t Know, But…”

As an expert witness, you are under oath to tell the truth. You should not speculate, but should testify with a reasonable degree of certainty. At trial, many experts do not practice this principle and, in fact, speculate freely. One of the most common forms of speculation by experts at trial is the “I do not know, but…” reply. It is usually a mistake to use this response. First of all, if you don’t know, then any information you provide after the “but” is mere speculation. Secondly, you may volunteer damaging information after the “but.”

The simple, direct, and best response is, “I don’t know.” The throwaway statements that come after the “but” or “I don’t know” reply help counsel by providing him or her with additional information. This type of reply frequently results in new lines of inquiry and detailed questioning by counsel.

“Hoping”

Sophisticated counsel may attempt to trap the expert witness by the use of the word hope. If you inadvertently agree with a characterization, you may allow the lawyer to successfully call into question the reliability of your opinion. When you are confronted with an “And you are hoping…” question, it may be best to actively refute that characterization. Remember that when you are passive and agree to an attorney’s characterization or mischaracterization, you are in effect letting the attorney put words in your mouth.

Refusal to Speculate

You should not permit yourself to be tricked, cajoled, or forced into speculating when answering questions under oath. There is nothing wrong with the response, “I’m sorry, but I’m not going to speculate on that.”

“Possibility”

Beware of the use of the word possible. Testifying that something is merely “possible” is most likely legally insufficient. If your opinion is only a mere possibility, the judge will most likely not allow it to be presented to the jury as evidence.

“I Guess”

As an expert, you are testifying under oath. Your testimony will help resolve the rights and liabilities of parties who are involved in a legal dispute. Accordingly, there is no place for you to guess. Experts are well advised to leave the guessing to financial advisers, political pundits, and meteorologists. Your “guesses” are not admissible in evidence. Guessing can only hurt your credibility. It should be avoided.

“I Don’t Understand the Question”

You need not answer questions that you do not understand. If the question propounded to you is confusing, the preferred answer is, “I don’t understand the question.” Exercise caution in giving “I don’t understand” replies to avoid answering questions improperly. For example, if you are one of the leading computer experts in the world and have testified that you didn’t understand a question about a browser, it is likely that your credibility will be impaired. You must answer truthfully and are permitted to answer, “I don’t understand” only when that is the actual case.

Compound Questions

Frequently, attorneys attempt to confuse the expert at deposition by asking compound questions; that is, two questions combined. Sometimes the question is asked in a stream of consciousness manner that is difficult to comprehend, let alone answer accurately. When faced with such questions, appropriate responses include: “Counsel, you have asked several questions. Can you simplify the question so I can answer it accurately?” and, “Counsel, I’m sorry, I don’t understand the question. Could you please rephrase it?”

“I Assume”

You should not make unfounded or unsupported assumptions in an attempt to answer a question. If you can’t answer or don’t know the answer, say so. Expert witnesses need not and should not make unsupported or unsubstantiated assumptions in an attempt to answer questions at deposition.

Example:

Q: Does the computer program have the capability of printing out a master index of all of the crash tests?

A: I don’t know, but I would assume that some computer person set this system up and can go in and generate a list of all of the data in there….

Lesson: Assuming in a case like this is akin to guessing and should be avoided. A better answer might have been, “I don’t know.”

Steve Babitsky is President, and James Mangraviti, Jr. is vice-president, of SEAK Inc. SEAK is a provider of “inter-disciplinary seminars, distance learning resources, and publications” in the areas of workers compensation, occupational health and, medical-legal issues. Further information about them can be obtained from their excellent website: www.seak.com or telephone 508-548-7023.

by Thomas R. Ireland

This article was originally published in the autumn 1998 issue of the Expert Witness.

In a recent posting to an e-mail service for economists who act as expert witnesses, Thomas Ireland, a well-known American economist, wrote about an issue that usually receives little attention — the dangers of relying on preliminary estimates. Although we do not agree with all of Dr. Ireland’s conclusions, we feel that many of the points he raises are of sufficient interest to be reported here. Accordingly, we reprint the following letter, with Dr. Ireland’s permission.

Fairly recently, I sent a letter to an attorney who had requested that I avoid producing any report except the final report of my opinions. This involved a situation in which I was asked to prepare preliminary estimates, but might not be asked to finalize my reports until several months later. It occurred to me that the text of this letter might be of interest to fellow practitioners.

Dear Attorney:

The purpose of this letter is to explain why I feel that I need to develop preliminary reports. I write my reports in the form of a letter addressed to an employing attorney unless asked to use a different format. In a very real sense, however, I write them to myself as well. This is for three reasons. First, in developing most reports, I must make a number of very small decisions that do not have a large impact on my damage assessments, but are things I need to remember at depositions and at trials. In my tables, is “age” shown as the plaintiff’s age at the start of the year, or on his birthday during the year? What issue of USFinancial Data was the source of my discount rate? How did I annualize the earnings figure in the year of injury? And so forth. If I am preparing a preliminary table, I need this kind of information if I pick up the file three months later and am trying to figure out exactly what I did to produce the exact numbers in my tables.

Second, my reports are not full of fluff that is designed to make it look like I did more work than I did (like many other economist reports that I see). They are simple narratives explaining what I was asked to do, what assumptions I was asked to make, what materials I was given to prepare, what I took from those materials, what additional assumptions I made, what my opinions are and how my tables work to produce those opinions. In effect, as I am writing the narrative parts of my report, I am subjecting my calculations to a step by step logical consideration of whether I have performed those steps correctly. I find mistakes much more easily when writing my narrative than by staring at tables or spreadsheets.

In other words, I need to develop a preliminary report to remember what I did and to check my calculations at the time I create them. Attorneys hate to see what they regard as unnecessary documents that might come back to haunt them. But the cost of not creating documents may be serious and much more embarrassing errors or failures of memory. For me to prepare extensive notes rather than narratives would take more of my time and be more likely to result in errors. Further, the notes themselves then become a document that could cause more trouble than a narrative. As I write my narratives, even in a preliminary report, every word is considered from the standpoint of whether I would want to be cross examined about the meaning of that word. I try to be very precise in my narratives, but am much less careful in notes I write to myself. I now typically type all of my handwritten notes as a part of deposition preparation to make sure that I have no handwritten notes that I do not understand.

Third, I want attorneys to read my narratives to see whether I may have misinterpreted any of the information they have provided to me. Sometimes important facts are given to me by telephone and I may have written them down incorrectly. Sometimes documents that I have been given create misleading impressions. I have found that attorneys are very good at picking up errors that relate to demographic facts in my reports. That is a very important part of the process of checking the validity of my analysis.

Perhaps a fourth reason is that right after I write a report, I see what I intended to write, but not necessarily what I did write. Several weeks later, I will see what I did write and be able to catch things that I could not have caught at the time I wrote a report.

The bottom line here is that if you ask me not to produce preliminary reports, you are asking me to take a greater chance of making an important mistake or being unable to explain how I arrived at one of the values in one of my tables.

Dr. Thomas Ireland is a professor of economics at the University of Missouri at St. Louis.

by Lorian Kennedy

This article first appeared in the winter 1997 issue of the Expert Witness.

In Part I the basic education and role of an occupational therapist and a basic assessment were discussed. This article outlines the specific value of an expert occupational therapist in a litigation setting and when costing future care needs. It explains how this role differs from other experts.

The occupational therapist understands medical conditions and can explain the impact of impairments in terms that are relevant to the individual case and day to day performance abilities. For example, how would loss of sensation in a hand impact employment if motor functions such as muscle strength and coordination have been preserved? A hairdresser, for example, would be able to use her hands only when she could see them directly. She would not be able to sense temperature, wetness, texture, bulk, etc. When her fingers were covered by her client’s hair she would not be able to tell where they were. She would not be able to feel inside a container to pull out hair clips, etc. Her speed and dexterity would be affected. She would be at higher risk of burning herself or her clients on curling irons. An established hairdresser might be able to compensate by focusing on other aspects of the hairdressing business such as administration. A starting hairdresser would be well advised to change careers to one with less emphasis on manual skills. For a typist this type of impairment would significantly reduce typing speed. In terms of housekeeping, more spills or errors and reduced efficiency would be expected.

Various methods of valuation of household services, such as opportunity costs or market replacement costs, have been discussed in past issues of this newsletter (The Expert Witness, Winter 1996). But these methods must rely on an estimate of what capacity the individual had prior to the injury and what loss has occurred. The plaintiff’s statements alone may not provide sufficient evidence to substantiate their claims. In Acheson v. Dory (1993) 8 Alta. L.R. (3d), at 128, Justice Picard cited factors to consider in loss of housekeeping awards: “specific tasks the plaintiff can and cannot do; the plaintiff’s pre-accident standards of housekeeping; modifications the plaintiff can make to achieve that standard; and the number of hours worked before the accident.” Later, in McLaren v. Schwalbe (1994) 16 Alta. L.R. (3d), at 108, she explained the importance of tendering evidence of “lifestyle, duties and responsibilities, standards, nature of the family unit, and perhaps the plaintiff’s goals.” These are the kind of issues addressed in an occupational therapy assessment. It includes detailed information specific to the individual and their impairments, the role they play in the family, the additional roles they may have caring for extended family, the adaptations they have already made, and additional adaptations or modifications that may be possible. This information is considered in the light of the individual’s performance on functional tests and takes into account pain, fatigue and emotional status. Following this assessment the occupational therapist provides an expert opinion on the number of hours of replacement services or other type of modifications or equipment that would be required to restore the plaintiff to their pre-injury status or as close to it as possible.

The sincerity of effort of the client is always a concern and many attempts have been made to quantify this, sometimes with simplistic methods, such as calculations of coefficients of variation of repetitive strength measures. In their study entitled, “Determining claimant effort & maximum voluntary effort testing: A discussion paper” (Work Function Unit, McMaster University, 1996), Strong and Westmorland, found that these methods, particularly those that rely mainly on physical testing, are founded on weak theoretical arguments and lack scientific reliability and validity. A combination of assessments using information from many domains such as medical reports, history, self report, functional testing, work site evaluation, etc. has been recommended rather than physical testing alone. The occupational therapy evaluation has the advantage of a lengthy period of time spent with the individual with a variety of test types and settings.

Distinguishing features of the occupational therapist

There is sometimes confusion about which experts are the most appropriate. There is no single answer as each case may require different expertise or in many cases a combination of experts.

At one time the physician was relied on to answer all questions regarding an individual’s ability to work. The physician is often still placed in this role and asked to comment on an individual’s work limitations or the match between the individual and their work. However physicians have rarely been educated in job analysis and usually have to base their opinions on brief office visits and medical tests rather than functional capacity testing. The Canadian Medical Association in a recent journal article, “CMA Policy Summary: The physician’s role in helping patents return to work after an illness or injury” (Canadian Medical Journal, 1997, 680) encourages physicians to refer their more complex patients for a comprehensive, objective assessment of functional capabilities, limitations and their relation to the demands of the patients’ jobs.

A vocational evaluator or counsellor usually does testing which relies heavily on pencil and paper test batteries and limited physical evaluation. These tests gather information on aptitudes and interests, and educational levels. This expert can provide market research and may assist with job placement. A computerized search can create a list of jobs which match an individual’s scores. However the lack of detailed information regarding physical capacity or psychosocial barriers can limit the value of the results. It is often an advantage to have an occupational therapist evaluate the individual first so that the vocational evaluator can incorporate the additional information into their analysis, ruling out jobs which are beyond the individual’s limits.

Similarly, standardized psychological tests include only minimal light physical demand components, but can provide detailed assessment of cognitive components. This type of assessment is particularly important where there is a possibility of brain injury or where depression may be a factor. On the other hand, the occupational therapist has the opportunity of being able to see the client perform in the “real” world and in some situations can try out various approaches in those settings.

Physical therapists have generally focused their attention on the physical components of assessment and on the various modalities of treatment. While measures of strength, range of movement, etc. are important they have limited usefulness to the court unless the impact on the individual’s ability to perform functional tasks or complex roles is made clear. Physical testing alone is not sufficient to answer the complex questions regarding a person’s ability to be productive or to pursue their goals.

Home economists have also played a role, particularly regarding loss of capacity to provide household services. Their input is valuable in terms of costing methodologies and comparisons of the individual to statistical data. However, occupational therapists are able to analyze task performance, to suggest modifications in light of medical conditions and/or impairments and to comment on functional capacity.

Other individuals such as nurses or people dealing with specific disability groups may also have developed expertise in costing, but have varying expertise in terms of evaluation.

Cases meriting referral to an occupational therapist

An occupational therapist’s background allows them to work with a wide range of clients, however individual therapists have often developed specialized areas of expertise. The OT expert will discuss a referral, at no charge, to determine if it would be appropriate to their expertise.

In the area of personal injury litigation the occupational therapist is usually involved once the individual’s recovery has reached a plateau. However occupational therapists can also provide a valuable role in case management, problem solving and treatment at earlier stages with improved outcomes and reduced delay before return to work or other resolution. Lack of funding for these services has been the major barrier to this role. Occupational therapists could also be of great assistance in cases of wrongful death to clarify the roles the individual played and to provide an opinion on the impact of their absence. To date they have rarely been used in this capacity.

If engaging occupational therapists, new to the role of personal injury litigation, lawyers must ensure that they understand the litigation environment. Assessments and reports that are performed for rehabilitation purposes tend to focus on assets and downplay impairments in keeping with a rehabilitation philosophy. However, in a litigation situation equal attention must be given to both assets and limitations. The future must be viewed based on what is likely and not necessarily what is hoped for. Adequate consideration must be given to the possibility of a less than optimal scenario.

Cost of the Evaluation

Each case must be considered individually and the assessment will vary depending on the complexity and the type of assessment necessary. A typical assessment of the type described below ranges from $1,600 to over $2,000.

Case Study

Mrs. X, 67 year old woman, was a pedestrian hit by a car two years previously. She fractured her left forearm and injured her right knee and back. The injury to her knee resolved but her arm healed with permanent angulation and loss of range of motion. Mrs. X complained of weakness, pain and loss of function in the left hand. Her pre-existing medical conditions included osteoarthritis of her knees and hips with surgery on her right knee with a good result. Right hip replacement surgery was planned in the near future to relieve pain from her osteoarthritic hip. No other treatment was planned.

A review of the background material and a detailed interview in her home revealed that Mrs. X was a homemaker at the time of her injury and lived with her husband. Prior to her injury she baby-sat her grandchildren approximately three hours a week. She knitted projects such as bedspreads. She had mobility difficulties related to her hip and her sleep was disturbed by hip pain.

Subsequent to her injury she was unable to set her hair in rollers, or cut her nails on one hand. She had difficulty bending and doing up her shoes. She had difficulty manipulating objects to do her usual cooking, or lifting, and she had relinquished most of the household chores because of a combination of hip pain and decreased hand function. She could no longer do any knitting or baby-sit her grandchildren. She was frustrated, angry and depressed with her pain and disability.

The laboratory assessment had to be adjusted for her age, hypertension and painful right hip. Evaluation of maximal lifting strength was not deemed appropriate. Comparison of left and right arms revealed limitations in speed, sensation and range of movement in her left shoulder, wrist and hand. Her ability to manipulate objects with her hands was observed in a variety of functional activities (such as picking up small items from the table, peeling potatoes, slicing, wringing out a cloth, and pouring from a pot). Evaluation of her ability to carry a ten pound bag (simulated groceries) revealed marked weakness on the left and pain. Grip and pinch strength testing also revealed marked weakness on the left. She indicated that she had no pain at the beginning of the testing session but pain in her left wrist when exerting force.

The occupational therapist was able to comment on Mrs. X’s functional limitations separating to some degree those impairments related to her hand from her other pre-existing complaints and noting their combined impact.

In the opinion of the occupational therapist Mrs. X was found to be consistent in her complaints and reports with marked impairment to her left hand function. No improvement in her hand impairment was anticipated but it was suggested that she could learn some helpful adaptive techniques. Some of her functional limitations were caused by her hip pain which contributed to her frustration and depression but a significant amount related to her left arm. She was less able to compensate for hip dysfunction by using her arms to work from a seated position. Her hip pain would hopefully be relieved by surgery but she would have to cope with ongoing loss of left hand function and pain. Decreased use of her left arm predisposed her to further loss of shoulder range and because of her lack of sensation in the left hand she was also at greater risk of injuring herself. Her ability to live alone in the future should she be faced with this eventuality was compromised.

Costs of future care were based on the combination of her hip and hand limitations. Costs included the following: adapted equipment ( specialized cutting board, non-slip matting to stabilize items while she manipulated them, a jar opener, grab bars, tub seat, hand shower); four hours of occupational therapy treatment at $75 per hour; weekly hairdressing services for hair care she used to do herself at $14 per week; bimonthly hair coloring at $35 minus the $6 for home purchased colouring; ten hours per week assistance with homemaking, food preparation and cleaning at $13 per hour; seasonal cleaning of eight hours at $16 per hour; five hours per week for five months per year for her share of gardening at $8 per hour; 0.5 hours per week for five months for her share of snow clearing at $8 per hour; and three hours of childcare per week for 48 weeks for five years at $8 per hour.

Lorian Kennedy has an M.Sc. degree from the University of Alberta, is a registered occupational therapist and the principal of Lorian Kennedy Consulting. She is an adjunct assistant professor in the Occupational Therapy Departments of the University of Alberta.

by Lorian Kennedy

This article first appeared in the autumn 1997 issue of the Expert Witness.

For more than a decade occupational therapists have been establishing their role in the field of personal injury litigation. The steady growth of that role as their contributions gain recognition is discussed by Irene Harris et al. in their article, “The occupational therapist as an expert analyst on the cost of future health care in legal cases” (Canadian Journal of Occupational Therapy, 61(3), 1994, 136-148). In particular, changes in the law regarding compensation for loss of capacity to perform household services has led to increased demand for occupational therapists’ assessment skills to determine the impact of impairment on individuals’ abilities to perform unpaid labour such as housekeeping, child care or yard work and the cost of replacing this labour. Judges now require detailed information on functional abilities. Individuals such as entrepreneurs or farm wives, whose work is multi-dimensional, can benefit from the occupational therapist’s ability to analyze and describe their jobs and relate this to their past, present and potential function. It is a positive sign that occasionally both sides in a dispute will agree to share the cost of an occupational therapy assessment and analysis of costs of future care.

What is an occupational therapist?

Occupational therapists’ education includes knowledge of biological, behavioral, social and occupational sciences. This provides them with a unique perspective and set of skills that are particularly well suited to the questions to be answered in personal injury cases. The Canadian Association of Occupational Therapists notes in “Profile of occupational therapy practice in Canada” (Canadian Journal of Occupational Therapy, 63(2), 1996, 81) that “The impact of the disease process, physical and mental health as well as methods of adaptive functioning are underpinned by the acquisition and application of knowledge from such areas as occupational therapy theory and practice, anatomy, physiology, psychology, psychiatry, medical conditions, neuroanatomy, neuropsychology, human development, human occupation, pathology, sociology, economics, management, political science and ergonomics.” Alberta occupational therapists complete four years of university education, a minimum of 1,000 hours of supervised clinical training and a national certification examination before becoming eligible to enter basic practice. Occupational therapy is a regulated profession so practitioners must be registered with the provincial professional association. Considerable experience is usually advisable prior to practising in the area of personal injury litigation and some occupational therapists have postgraduate degrees with relevant specializations.

The “occupation” in occupational therapy refers to more than just paid employment. It encompasses everything that “occupies” a person’s time, in other words all the activities (including thinking) that are part of our engagement with living. Canadian occupational therapists use a model of practice that focuses on occupational performance. E. Townsend in Enabling occupation: An occupational therapy perspective (1994) refers to the ability “to choose, organize, and satisfactorily perform meaningful occupations that are culturally defined and age appropriate for looking after oneself, enjoying life, and contributing to the social and economic fabric of the community.” Physical and mental occupation is a fundamental human need and health depends on people having meaningful occupations. This perspective takes into account the dynamic relationship between persons, the social, cultural and physical environment and occupation. Also central to the practice of occupational therapy is the recognition that people are unique spiritual beings whose personal experience of meaning in everyday existence nurtures them through life events and choices.

The evaluation

At the time of referral the occupational therapist establishes the suitability of the referral with the referring lawyer. It is important to clarify what questions are to be answered. Both parties need to ensure that the evaluation process is mutually understood and that deadlines can be met. It must also be an appropriate time for evaluating the individual.

Once the referral is accepted the occupational therapist reviews relevant background material which usually includes the individual’s history, reports from physicians, psychologists, therapists, vocational evaluators, resumes, work history, school marks and portions of hospital records. In some cases the occupational therapist may request clearance from the individual’s physician before proceeding with physical components of the assessment. In cases where the individual has sustained severe or catastrophic impairments the physical component of assessment may be restricted to observing and evaluating the individual as they are cared for and interviewing the caregivers.

A detailed interview and completion of questionnaires provide information on medical, work, education, leisure and psychosocial aspects of the individual’s situation. The interview is usually conducted in the home. This helps to put the individual at ease and provides additional information on lifestyle, family and leisure interests, housekeeping roles, and cultural and social contexts. The individual’s perceptions of their abilities and information on their attempts to adapt to reduced function or to pain are an important part of the evaluation. This self-report provides a context for planning further evaluation. The occupational therapist looks for consistency and compatibility between the diagnosis, reported activities and performance during the next stage of the assessment.

Standardized testing and functional performance assessment (functional capacity evaluation) is usually performed in a clinical setting. Objective testing and skilled observation are used to measure factors such as work aptitudes, strength, flexibility, motor skills, perception, activity tolerance, ability to remember and follow directions, and work behaviors. Ability to stand, walk, sit, kneel, squat, reach, lift, and manual dexterity, or other factors specific to the individual situation are measured. In some cases the occupational therapist performs a work site job analysis or sets up simulated work. The occupational therapist may obtain consent to interview other family members, work associates, or teachers particularly in cases of brain injury where individuals may lack the ability to evaluate their own occupational performance.

There are numerous names for functional capacity evaluations and many variations on techniques. Some approaches use “high tech” equipment and computer generated reports. Despite manufacturer’s claims there is little evidence that these machines meet requirements for reliability and validity or that they are any better than simpler methods. Focusing too much on strictly physical components can blind the assessor to important psychosocial, environmental and other factors that are critical for the individual.

The report

The assessment results are summarized in a clear report which describes the individual’s functional abilities as they relate to self-care, leisure and productivity (including paid and unpaid work), nature of impairment and the impact on their capacity to carry out specific life tasks. The report also comments on the impacts on other family members. Where appropriate, the occupational therapist makes recommendations regarding training, treatment, modified or adapted work, ergonomic alterations, housing or care needs, assistive devices, equipment or techniques. The occupational therapist can also prepare a cost of future care report detailing the need for equipment, medical services, support services, adapted housing, transportation, clothing, education or other needs and their associated costs.

Next issue

In the next issue of The Expert Witness, Part II of this article will discuss the specific relevance of the occupational therapist’s expertise in a litigation setting and compare it to the role of other experts. A case study will provide an example.

Lorian Kennedy has an M.Sc. degree from the University of Alberta, is a registered occupational therapist and the principal of Lorian Kennedy Consulting. She is an adjunct assistant professor in the Occupational Therapy Departments of the University of Alberta.