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CONTINUING EDUCATION ARTICLE

An Introduction to the Legal System and the Occupational Therapist as an Expert Witness: One Therapist's Perspective

Paul A. Fontana, OTR, FAOTA Center for Work Rehabilitation, Lafayette, LA

This article was developed in collaboration with AOTA's Work & Industry Special Interest Special Interest Section.

ABSTRACT Most occupational therapists (OTs) or occupational therapy assistants (OTAs) have not had the occasion to become involved in the legal system as either a fact witness or as an expert witness. However, in this litigious society that we live in, chances are that any OT or OTA may someday be subpoenaed to give testimony in a deposition or live testimony before a judge and jury. This article provides occupational therapy practitioners with an overview of the legal system so that they may be better prepared to present themselves as competent and reliable professionals, particularly OTs serving as expert witnesses.

LEARNING OBJECTIVES After reading this article, you should be able to: 1. Define basic terminology and the procedure surrounding court

work 2. Describe the importance of comprehensive, accurate, and

timely documentation of all services provided by occupational therapy practitioners 3. Identify the steps that should be undertaken if you decide to establish yourself as an expert in occupational therapy 4. Know what to expect when preparing for and participating in a deposition or testifying in court

INTRODUCTION Lawsuits are legal actions between a plaintiff, the party who believes they have been wronged, and a defendant, the party who is defending against the charge. By the very nature of their work, occupational therapy practitioners in the workers' compensation

area of practice are more likely to be called on to testify either in a deposition or live before a judge and jury than those working in a hospital, rehab center, or outpatient/home health environment. Regardless, all occupational therapy practitioners should ensure that all their documentation is comprehensive, factual, current, and accurate, telling the whole story of the care provided so that when and if their work with clients turns to litigation, the documentation supports the care that was provided.

LEGAL PROCESS

A lawsuit is initiated when an individual (the plaintiff) files a complaint in court asserting that they have been harmed in some manner by another party (the defendant). After the court papers have been served on the defendant, the two parties' attorneys will begin the discovery phase.

The most common way that an occupational therapist (OT) and the only way an occupational therapy assistant (OTA) will become involved in the legal battle between a plaintiff and a defendant is as a fact witness. (Because an OTA works under the direction and guidance of the OT, their role as an OTA will not be used as an expert.) The OT who has provided the treatment will be called on to simply provide the facts:

? When did the therapist first evaluate the client? ? What did the evaluation consist of? ? What were the OT's initial perceptions of the client? ? What were the client's problem areas and goals for therapy? ? What treatments were prescribed and who provided them? ? How did the client respond? ? What were the discharge conclusions and

recommendations?

A fact witness will not be asked for their opinion. Providing complete and accurate documentation is critical. The following describes the legal process.

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THE DISCOVERY PHASE

Discovery is a fact-finding phase intended for each party to gather as much information as possible regarding the case. They will issue subpoenas, which are legal requests for information, and take depositions of parties or witnesses who may have knowledge of the facts in the case. This phase also allows each side to hear what the other side's witnesses intend to testify at trial.

Depositions The subpoenas can be issued for information, charts, and records from anyone who has been involved with the client. It may include interrogatories, which are questions for either the plaintiff or the defendant that are to be answered under oath. Interrogatories are not the same as a deposition. The subpoena can also request a deposition from an interested party involved in the case. During a deposition, an individual, under oath and before a court reporter, is questioned by all attorneys involved in the case while the court reporter takes down every word spoken. The attorney requesting the deposition will generally explain the process at the beginning of the deposition. The witness should be sure to listen to the ground rules. A cautionary note about depositions: The court reporter will take down everything that is said, word for word. Jokes do not come across well on depositions.

The purpose of the deposition is for the attorneys on both sides of the issue to gather, under oath, as much information about the case as they can. Some of this is to tie down what an individual may say at trial or to see how a witness responds under pressure of the deposition. The court reporter will produce a written transcript of everything that is spoken. Some depositions will also be videotaped, which the attorney may use in court in place of live testimony.

A deposition of a practitioner who is seen as a fact witness will go something like this: After the court reporter swears in the witness, the attorney requesting the deposition will go first, asking questions regarding the therapist's training, background, education, and work history, for example. From here, the attorney will proceed to ask questions regarding the evaluation of and treatment provided to the claimant. The therapist is able to have the client's chart in front of them during the deposition. However, the therapist should understand that anything they bring to the deposition is subject to inspection by both parties and, if either deem necessary, may be attached to the deposition as an exhibit to present at trial.

Preparation for the deposition is crucial to ensure the therapist comes across as a competent professional. The witness should be sure the chart is organized in a manner that allows them to find the information quickly and efficiently, and to familiarize themselves with the complete chart. In my experience, if the therapist's documentation is thorough and complete, a fact-finding deposition can be relatively stress free.

On average, a deposition of this sort will take 2 to 3 hours to complete. However, when there are extensive treatments or

where there are indications of client symptom magnification or other controversial issues, the deposition can become tense and go on for many hours.

The attorneys generally will not use "legalese" when asking a question. But should a witness not understand the meaning of a word or a question, they should not hesitate to ask for clarification before answering. Likewise, they should not expect the attorney or jury to necessarily know the meaning of certain occupational therapy or medical terms. OTs should use the specific term or phrase and then provide the attorneys and jurors with the meaning, in layman's terms, if it appears unclear.

Because the court reporter takes down every spoken word, the witness should listen carefully to the questions being asked and not answer until the attorney who is asking the question is finished. This allows them to actually answer the question posed and not go off on a tangent that was not intended. The role of the witness is to answer, thoroughly and completely, the questions posed. If the witness believes that they were not able to give a complete answer, they have the right to further explain their answer.

Occasionally in a deposition, the witness and the attorney may not be on the same wavelength, either because the witness is not listening to the questions or the attorney is not listening to the answers. By waiting until the question is fully asked and taking the time to think about their answer, the witness can help ensure that there are no misunderstandings.

Another reason for the witness to take their time before answering a question is to allow time for the opposing attorney to object to the question. When an attorney poses an objection to a question, the witness should stop and listen to the objection. The attorney may object for various reasons: The question may be vague or overly broad, or it may be multi-focused and the attorney may not want the answer as part of the trial record.

There may be a case where the opposing attorney does not want the therapist to answer a particular question at all until the judge rules on its admissibility. In these rare instances, the deposition may be placed on hold until the judge is reached by phone and the opposing attorneys plead their case. After the judge rules on the question, the deposition will get back on record and continue. Witnesses will still have to answer the question after the objection is raised. When and if the deposition is used in a trial, the judge will review any objection and make a decision on whether to overrule the question or to affirm the question. If overruled, the question and answer will be stricken from the record; if affirmed, the question and subsequent answer will be allowed in the record.

Witnesses can request a break at any time, at which point they go off record. They can use this time to go to the restroom, compose themselves if need be, or confer with the attorney. Once the break is completed, the court reporter will signify that the deposition is back on the record and the deposition will resume. When the attorney who has called for the deposition has competed their questioning, the opposing attorney(s) will then introduce themselves, state whom they represent, and proceed to ask questions.

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After this is completed, the first attorney has the opportunity to redirect and ask follow-up questions. The second attorney can then do the same. When the deposition is concluded, the court reporter will ask the witness whether they would like to read and sign the deposition or waive that right. If they wish to read and sign, they must do so fairly quickly. They are not able to make any changes to the testimony, other than grammatical (generally spelling of names or medical issues).

BEING INVITED AS AN EXPERT WITNESS

When an attorney contacts an OT and inquires about the possibility of using them as an expert in a case, the OT must carefully screen the call to determine who the attorney represents, what the attorney is looking for (e.g., type of occupational therapy practice the case involves) in an occupational therapy expert witness, and how that therapist might be able to assist the attorney with this case. The OT may be called on to simply review some depositions or medical records and give the attorney advice on questions they might ask of others, or to educate the attorney regarding a certain condition or rehabilitation process.

If the attorney is looking for a written expert opinion or an expert to appear at trial, understanding what the attorney is looking for will help ensure:

? That the OT has expertise needed in this case ? That what is asked for is consistent with the occupational

therapy practice act within the state involved ? Whether the OT will be able to assist them with the case ? Whether it is outside their area of expertise and perhaps

another professional would be better able to assist.

I had an experience where I was contacted by an attorney seeking my involvement in a case involving an OT working in a hospital who had a client who attempted to stand up, fell backward, hit her head, and died. The attorney was representing the OT being sued for malpractice. Although on the surface this is not an area of practice where I consider myself an expert, I asked the attorney to send me the records so I could review them. The woman, after sustaining a stroke, was being seen by the OT for assistance with ADLs. The physician's written orders called for transfer with standby assistance.

Over the course of a week of work with the client, the OT reported that the client had made good progress and was able to independently transition to standing with the OT standing next to her and her hand on the transfer belt. The OT would use this standby assistance to walk with her to the bathroom. Although the woman had made good progress and in the mind of the therapist did not require standby assistance to transfer and walk, the OT's daily notes did not include the progress seen nor did she get the physician to change the written orders for standby assistance during transfers to independence in transfers.

On the morning of the incident, the OT entered the room, asked the client whether she was ready for her ADL treatment, and told her to get up. The OT walked to the bathroom door to wait for the woman. The woman stood, lost her balance, and fell backward, hitting her head and eventually dying. I told the attor-

ney that I could not help him--that in my opinion, based on my previous work as a chief therapist in an acute care hospital and also as the director of occupational therapy for a large company that contracted OTs and physical therapists to hospitals and nursing homes, the therapist was in the wrong because she did not get the doctor's orders for transfers changed to "independence" and was therefore at fault. I then gave the attorney the names of two OTs I knew with current experience in hospitals that he could contact for further possible assistance.

A deposition in which the therapist is going to be proposed as an expert witness will follow generally the same outline as the deposition of a fact witness. In this case, the therapist should meet in advance with the attorney hiring them and identify for the attorney the specific areas in the therapist's background, education, training, or experience that show they have the expertise the attorney is looking for.

At the onset of the deposition, the attorney who is looking to use the OT as an expert will, during the initial questioning, have the therapist expound on the qualifications (e.g., education, training, experience) that establish them as an expert in a specific area of practice. After the attorney presenting the therapist as an expert has gone through the therapist's credentials, training, and experience, they will submit the therapist as an expert in a very specific area of practice (e.g., a pediatric OT, an ergonomic and biomechanical expert, an expert in work hardening and functional capacity evaluations).

Next, the opposing attorney will question the therapist concerning their qualifications and can accept them as an expert in these areas, or they may challenge the therapist's credentials regarding their expertise or attempt to limit their expertise to a specific area. Whether or not the opposing attorneys agree to the OT's level of expertise in a specific area, during the deposition, the OT will be asked to give their professional opinions on areas of concern.

The trial judge has the final say on whether the therapist will be considered an expert in court or not, and in which areas they will be allowed to testify as such. The judge will use several criteria to determine the OT's area of expertise. Therefore, the attorney presenting the OT as an expert will ask questions to prove the OT's expertise to the judge.

The questions will include: ? Education/degrees obtained ? Significant experience in the area of concern ? Membership and active involvement with professional

organizations ? Attendance and presentations at state and national profes-

sional conferences ? Teaching at OT and OTA programs where the subject mat-

ter is related to the area of expertise warranted ? Publications, including articles authored by the OT in

professional journals ? Attainment of professional awards and honors, especially

those associated with their area of practice ? Expert witness status recognized in other local, state, and

federal courts.

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The OT should remember that being accepted as an expert in a certain area of practice is at the discretion of the trial judge. Very simply, it is not necessarily just what the OT knows but also what professionals in their field think the OT knows. Acceptance as an expert in an area of practice by their peers (e.g., those accepted to teach at professional meetings or at occupational therapy programs) supports acceptance of an OT as an expert witness in a court of law.

Allen and colleagues (2005) noted:

[OTs], through their education and professional development, are well trained to understand the relationship between an injured person's medical condition, functional abilities, psychosocial status, and work demands. It is from this foundation in work-related practices that [OTs] provide expert opinions in work capacity. (p. 294)

After the OT has been accepted as an expert in a specific area of practice, they will be asked for their opinion regarding specific questions of interest. Similar to any professional writing or courses taught, the expert must ensure that their opinion is well researched and that they have the expertise, skills, and experience to defend the opinion when challenged--and challenged it will be. The opposing attorney will likely have retained an expert who will offer an opposing opinion. Generally, the therapist will be asked to comment on this contrary opinion, either through a written expert report or through testimony.

WHEN CALLED AS AN EXPERT

What happens when the OT is called as an expert witness? OTs should prepare an expert opinion report consisting of at least the following content areas:

? Any and all material they've reviewed for this case, including depositions, medical records, incident reports, and company safety policies and procedures

? Industry standards they may have used ? The opposing party's expert opinion ? Site visits or assessments they may have made and individ-

uals they've met with regarding this case ? A listing of all courts where they have testified as an expert

and in which area(s) of practice they were qualified as the expert--this should include the court where the OT testified; the case file name; and the number, location, and date of the testimony ? Articles the OT has published ? Pertinent experience, training, or anything else that supports the OT's claim to be an expert. This can include important conferences they've presented at, committees they've served on, or professional honors they've received. Copies of the OT's r?sum? will be required. ? The OT's fee schedule for expert work ? The OT's expert opinion ? A statement that, should additional questions or information become available, the OT reserves the right to amend their report.

Before the court date, the OT should meet with the attorney who is requesting the testimony or the expert opinion to ensure they know what the attorney is hoping to elicit from their testimony. Preparation before trial is vital. The OT should thoroughly review the complete file on the client, including any reports or expert opinions they've generated. If additional statements or misinterpretations can be made, the OT should bring these up with the attorney who hired them.

Similarly, if opposing views can be made, the OT should discuss these thoroughly with the attorney in the pre-conference meeting. The OT should familiarize themselves with all the pertinent medical information they have in their file, as well as any pertinent depositions or opposing expert reports that have been generated. In reviewing all the documentation before this meeting, the OT should point out to the attorney any issues or potential problems they have found in the documentation or previous testimony.

If the OT was the treating therapist, they cannot change the documentation, but their attorney needs to be aware of any potential problems their testimony may uncover so they are prepared to address them. The last thing the attorney wants is surprises in the courtroom. The OT should ask about the line of questioning they might expect from attorneys on both sides of the case--what their attorney hopes to accomplish with their testimony, and what should they expect from opposing counsel.

Similarly to the initial discussion they've had with the attorney regarding their background and expertise, after the OT has thoroughly explored their expected testimony with the retaining attorney, they should at this time also discuss any additional things that need to be brought out in their testimony. However, during the OT's testimony at trial, it is not their job to expand beyond what is being asked by the retaining attorney. The OT should listen clearly to their questions and answer them as posed. During trial preparation, the retaining attorney may give the OT direction and broad latitude to expand on certain areas. The OT should be sure to follow through with this at trial. Beyond this, it is the attorney's job to ensure the OT's testimony brings out what they are looking for.

During the testimony, the OT should not be the flag waver! They are not there to win the case; the OT should stay objective and within their area of expertise. A common trap set by the opposing attorney is to have the witness go beyond their area of expertise and thereby lose credibility in the eyes of the judge or jury.

I have found that a common technique to elicit information from the OT witness is for the opposing attorney to give a statement, not necessarily in the form of a question, then remain silent for an extended period of time. It is important to listen carefully for the question as opposed to a statement. When the attorney makes a statement--for instance, says "Really," in response to something the OT has said, and then remain silent--this is NOT a question. The therapist should sit quietly, waiting for the attorney to ask a question. I find that OTs are typically social beings, and as such may not be comfortable with

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silence. In time, the OT may feel the need to further explain their answer.

Through this elicited verbosity, the OT may unwillingly provide the opposing attorney with ideas for additional questions they would not have come up with had the therapist not gone on and on. Conversely, sticking strictly to answering the questions posed may reveal a lack of preparation in or limitations of the opposing counsel. I participated in a deposition where it became very clear to me that the attorney did not know what an OT was. The attorney asked me how long I had practiced as a physical therapist. I told him I was not a physical therapist. After a moment he asked, "Then what kind of therapist are you?" I told him I was an occupational therapist.

After literally 2 to 3 minutes of looking through his file, he asked, "But you graduated from PT school, right?" I told him, "No." After another 2 to 3 minutes of looking through his file, he asked, "What school did you graduate from?" I told him, "Occupational therapy school at the LSU Medical Center in New Orleans."

Again he looked through his files for several minutes and asked, "But you did physical therapy with my client?" I said, "No, I did not do physical therapy." Again, after 3 minutes of the attorney looking through his files, he asked, "Then what did you do with my client?" This went on for quite a while. It is not my job to educate the opposing attorney as to what I do as an OT.

The Courtroom Experience When called to testify before a judge or jury, the therapist will first be sworn in by the bailiff "to speak the truth, the whole truth, and nothing but the truth, so help you God." The OT is again able to bring any and all records to the trial, and as previously noted, everything is open to inspection by the opposing attorney.

The OT's credibility is what they have to sell. If they are unorganized, fumble with, or are otherwise unsure with their answers in response to questions, the OT will lose credibility in the eyes of the judge or the jury. Body language is important. The OT should sit up straight, look the attorney in the eye when they ask questions, and take their time to thoroughly listen to the questions before answering.

As an expert, the OT is there to teach both the judge and the jury, so they should turn and face the jury and answer the question with a clear and confident voice. If they need to refer to their notes or the chart for information, they should do so quickly and then answer the question.

A witness is not limited to only a yes or no answer, as so often depicted in TV shows and movies. They will always be allowed to clarify their answers if need be. It may be on redirect when this occurs. The OT should remember that they are not the attorney. If they have properly laid down the foundation of their testimony during their pretrial discussions, the OT can trust in the attorney to get their story told in the manner required.

The OT's expertise in their specialty area of practice is valuable, and so they should charge accordingly for their services.

There is no right or wrong answer as far as what to charge. The OT's fee will be determined by their level of expertise and their credentials in the area requested. If the OT believes their education, background, and experience sets them up as the expert in their specific area of practice, they should charge accordingly. It has been my experience that some professionals--neurosurgeons, for instance--often do not want to be bothered with court work, and so they set their fees so astronomically high so that they are not often used.

The OT should set their fees to ensure adequate reimbursement for the time they spend on the case. They will be able to bill for time devoted to:

? Reviewing medical records, depositions, and expert reports ? Visits to the work site, including travel time and expense ? Research time in preparing their reports ? Time meeting with attorneys ? Preparation for trial, and time/expense at trial.

Because the OT is being retained by one side in the case, the opposing attorney will attempt to portray them as a hired "gun" who will say what they are hired to say. The OT should present their opinion as an honest and objective professional opinion that they believe to be true and ethical. Yes, they will be reimbursed for their time by the attorney who has retained them, but that does not mean that they cannot give an honest and objective opinion.

Conclusion Whether or not an OT enjoys the adversarial environment of the courtroom, when called on as a fact witness, they will not have a choice of whether or not to be involved. When ordered by the court, the OT must participate. To make this experience as least stressful as possible, the OT should ensure that all documentation is thorough, factual, and complete; that their treatments are evidence based; and that they were working within their scope of practice.

OTs who enjoy the adversarial environment of the legal system and want to be invited to work more in this area would be wise to participate in those activities that promote their expertise--to teach both at OT/OTA programs and at professional meetings, consult with players in their field of practice, and expand their knowledge through formal and informal education, for example. In other words, the OT should do the things they need to do so that others will recognize them as an expert in whatever area they are interested in.

Case Example A 26-year-old roustabout working on an offshore drilling rig reportedly was injured while performing a two-person lift of a heavy drill slip. At the time of this incident, the drilling rig was working in the Gulf of Mexico. The drill slips are wedge-shape devices that prevent the drill pipe from falling through the hole when it is disconnected during tripping operations. The drill slips in question weighed 220 lbs.

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The employee reported feeling a "sudden pain in my lower back that took my breath away." The employee took a moment to "stand to the side and make sure the pain wouldn't get any worse." After a moment, he reported "it subsided some," and he was able to continue working for the rest of his 12-hour shift. Over the next couple of days, he reported the pain got worse, and he was eventually flown in to the shore, where he was seen by a local occupational medicine physician. Subsequent to this injury, the young man filed a lawsuit against the drilling company.

The expert opinion report of the plaintiff's expert, a graduate of the U.S. Coast Guard Academy and a career officer responsible for training officers and enlisted personnel in deck safety, safe lifting, and line handling included the following:

? Lifting injury: Employer failed to supervise and execute a safe manual lifting operation, specifically citing:

? Slips have three handles, and therefore it is the industry's standard that three persons are required to pull drill slips.

? Slips weigh 220 lbs. Plaintiff expert report states that the National Institute for Occupational Safety and Health (NIOSH; 1994) lifting equations and regulations indicate that no one should lift more than 51 lbs, stating, "Lifting should be reduced to below 50 lbs." In addition to citing the NIOSH lifting guidelines, he cited the American Society for Testing and Materials (ASTM) Standard for Human Engineering Design for Marine Systems and Facilities, the American Bureau of Shipping (ABS) Application of Ergonomics, and the U.S. Department of Defense's Design Criteria Standard of Human Engineering (1999) as additional sources to support the requirement that lifting should never exceed 50 lbs.

The expert stated that "the two men were required to reach down to the ground level to grasp the handles," and then the employees had to "jerk on the handles to jerk the slip free from the pipe and the hole," making the 220-lb, two-person lift even more unsafe.

The defense attorney contacted me to serve as an expert witness for the defense in this case. My background and experience that qualified me to address these questions include the following:

? I am an OT with 44 years of experience, the last 34 of which have been spent working exclusively with industrial customers, the majority of whom are directly and indirectly related to the exploration/drilling and production of oil and gas.

? I have analyzed and written the physical job descriptions for 23 offshore drilling companies and six major offshore production companies.

? I have taught a 2-day ergonomics course to more than 500 therapists throughout the United States. Each course consisted of instruction on calculating back compression forces of material handling, proper body mechanics of material handling, and lifting.

? I testified on two occasions before the Occupational Safety and Health Administration (OSHA) as the expert on behalf of the American Occupational Therapy Association during ergonomic hearings in the nursing home industry.

? I testified before the U.S. Senate Health and Welfare committee during hearings on the President Clinton?era ergonomic rule.

? I was appointed by the U.S. Secretary of Labor to serve on the National Advisory Committee on Ergonomics for OSHA.

? I have performed hundreds of ergonomic assessments through my work as an OT.

After reviewing the depositions of the plaintiff and the expert's opinion, I agreed to provide the attorney with an expert opinion contrasting the plaintiff's expert report. My expert report and subsequent testimony consisted of the following.

Industry Standard I have traveled offshore to evaluate and write physical job descriptions for every position on an offshore drilling rig for 23 offshore drilling companies. During this work--which included me working on drill ships; semi-submersible and submersible ships; and jack-up, barge, and platform drilling rigs--I have worked on more than 70 offshore drilling rigs for these 23 drilling companies. This work included analyzing physical demands to pull drill slips. In every case, with all 23 offshore drilling companies, it is the norm that 30% of the time, two persons are pulling drill slips. Therefore, it is the norm of the industry that two individuals are pulling drilling slips.

NIOSH developed guidelines to "assist companies to design or redesign work so that 95% of all healthy males and 75% of all healthy females would have the strength to lift" no more than 51 lbs and potentially even more than that, although "the greater the weight the smaller the fraction of workers will have the strength to do the job."

The American Bureau of Shipping ([ABS]; 2018) ABS Guidance for the Application of Ergonomics for Marine Systems, meanwhile, recommends 45 lbs for a one-person lift and 90 lbs for a two-person lift. However, the document states, "The ABS guidance notes on the application of ergonomic design will promote an understanding of ergonomic data and principles to vessels and offshore installation design. The ergonomic data and principles contained are provided as guidance. Compliance is not required." Furthermore, the guidelines offer "tools for the design or redesign of manual material handling so that 95% of the healthy male and 75% of healthy females will have the strength to do this work."

The Department of Defense Design Criteria Standard of Human Engineering (1999) references "human factors and ergonomics design for the 95% male .... This standard establishes human engineering criteria for the design and development of systems, equipment, and facilities so as to achieve required manpower readiness for systems. Equipment systems and sub systems shall be designed to accommodate the central

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90% of anticipated population." This publication also defines lifting limits: "Lifting limits: maximum design weight limits for young healthy population and do not necessarily represent a threshold for injury risk."

The drill slip handles do not rest on the floor. When the drill slips are inserted in the drill hole with drill pipe the handles will be 23" to 25" from the floor, thereby allowing the roustabout/ floorhand or derrickhand to maintain lordosis when performing the lift. The employee does not jerk on the slips but rather pinches the ends into the drill pipe so that when the driller raises the drill pipe to take the weight off the drill slips, raising the pipe will also raise the slips. Jerking the drill slips free of the pipe without first having the driller raise the pipe would be impossible for anyone to accomplish.

In its lifting equation guidelines, NIOSH reports that when back compressive forces on the disc exceed 1,430 lbs of force, most of the workforce will be at risk of injury. (This is the force that it takes to rupture the disc of a dead person--no one knows how much force it takes to rupture the disc of a healthy person as no one has voluntarily allowed their disc to be ruptured so as to measure the force.)

However, we know that the healthy disc of an individual can certainly take more than 1,430 lbs of force before rupturing. If not, every high school sports team in the country would be rupturing their discs on a daily basis, as many of these young men and women are lifting weights in excess of this every day. Estimated back compressive forces can be measured using formulas that are accepted throughout the ergonomics community. A 200-lb person using good body mechanics to team lift 220-lb drill slips will be putting approximately 988 lbs of back compressive forces on the discs at L 3, 4, and 5 and S 1. Therefore, if the individual has the strength to lift 100 lbs and the endurance to repetitively lift using good mechanics, then it is safe to perform this task from a biomechanical standpoint.

The Center for Work Rehabilitation (CWR) performs posthire evaluations of new hire employees. Over the last 15 years, CWR tested approximately 45,000 individuals, with approximately 50% to 60% of these being roustabouts, floorhands, or derrickhands--the three classifications of employees who will routinely have to pull drill slips. CWR has a working drill floor with a 220-lb drill slip, tongs, and drill pipe. In all these cases, two people pull the slips. The roustabout and the derrickhand pulls the slips 30 times in 1 hour, whereas the floorhand pulls the slips 60 times in 2 hours. Over the past 15 years not one individual was injured while pulling the drill slips.

The jury ruled in favor of the drilling company, stating that the company was not negligent and did not fail to provide for safe lifting operations.

How to Apply for Continuing Education Credit

A. To get pricing information and to register to take the exam online for the article An Introduction to the Legal System and the Occupational Therapist as an Expert Witness: One Therapist's Perspective, go to , or call toll-free 800-729-2682.

B. Once registered and payment received, you will receive instant email confirmation.

C. Answer the questions to the final exam found on pages CE-8 & CE-9 by April 30, 2022

D. On successful completion of the exam (a score of 75% or more), you will immediately receive your printable certificate.

REFERENCES

Allen, M. (2005). Occupational therapy expert opinions on work capacity: A grounded theory. [Doctoral thesis, University of Queensland, School of Health and Rehabilitation Sciences]. University of Queensland UQ eSpace. Retrieved from

American Bureau of Shipping. (2018). ABS guidance notes on the application of ergonomics to marine systems. Houston: Author.

National Institute for Occupational Safety and Health. (1994). Applications manual for the revised NIOSH lifting equation. Retrieved from niosh/docs/94-110/pdfs/94-110.pdf?id=10.26616/NIOSHPUB94110

U.S. Department of Defense. (1999). Department of Defense design criteria standard: Human engineering. Retrieved from soh/references/military-standards/mil-std-1472f-human-engineering/

ARTICLE CODE CEA0120 | APRIL 2020

CEC-E7-7

Continuing Education Article

Earn .1 AOTA CEU (one contact hour and 1.25 NBCOT PDU). See page CE-7 for details.

CE Article, exam, and certificate

are also available ONLINE.

Register at or call toll-free 877-404-AOTA (2682).

Final Exam

Article Code CEA0420

An Introduction to the Legal System and the Occupational Therapist as an Expert Witness: One Therapist's Perspective

To receive CE credit, exam must be completed by April 30, 2022

Learning Level: Intermediate to Advanced Target Audience: Occupational Therapy Practitioners Content Focus: Category 3: Professional Issues

4. To qualify as an expert witness in a court of law in a particular field, the OT:

A. Will be considered an expert based on their doctoral degree in occupational therapy.

B. Can obtain certification as an expert through specialized continued education in the specialized area of practice.

C. Requires a combination of education and significant experience in the area of concern, maintaining professional association membership, having experience teaching in occupational therapy programs/professional meetings regarding the area of expertise, being a published author in the specified area, and attaining recognition/awards in the specified area--yet, being accepted is ultimately at the discretion of the trial judge.

1. In the event of a lawsuit, occupational therapists (OTs) working in all settings must ensure that:

A. All documentation is done electronically and is as complete as possible.

B. All documentation is comprehensive, factual, current, and accurate so that it will support the care provided.

C. All documentation is as concise as possible.

2. In a deposition, under oath and before a court reporter, an individual is questioned by all attorneys involved in the case:

A. While the court reporter generates a summary of the therapist's testimony.

B. While the court reporter takes down every word spoken, and in some cases the deposition is videotaped to be used at trial.

C. Is forbidden to use external materials such as the client's original (master) chart.

3. During a deposition, the OT:

A. Should come across as a competent, organized, and prepared professional who knows the facts of the case as they pertain to their area of involvement and has the documentation to back up their testimony.

B. Must answer the attorney's questions as they are posed and is not allowed to ask for further clarification before answering.

C. Is not allowed to bring charts or other documentation to the deposition.

5. As a fact witness, the OT or occupational therapy assistant (OTA) should:

A. Provide as much information to the questioning attorney as possible, being detailed and descriptive.

B. Realize that their testimony is necessary and vital to win the case.

C. Limit their testimony to what is being asked by the attorney and stay within their area of expertise.

6. When called on to testify as an expert witness, the OT is able to bill for their services. It is not permissible to bill for the following:

A. Preparation for trial: reviewing medical records, depositions, and expert reports.

B. Expenses exceeding an agreed-on budget, without prior approval.

C. Travel and expenses; research in preparing reports and time meeting with attorneys.

7. When being deposed, the OT or OTA:

A. Is not able to refer to the client's notes in the medical or therapy chart.

B. Can be limited to a yes or no answer when called on by either attorney to do so.

C. Understands that anything that is brought into the deposition is subject to inspection by both parties and may be included in trial.

8. Before the court date, practitioners should meet with the attorney requesting the testimony to ensure that they:

A. Can appropriately make corrections to any documentation or previous testimony.

B. Understand what the attorney is attempting to elicit from the their testimony.

C. Knows when and where they are able to exceed their level of expertise during the trial when needed.

CE-8

ARTICLE CODE CEA0120 | APRIL 2020

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