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Joint Employment and Workers’ Compensation in North Carolina

by Richard Haywood, McAngus Goudelock & Courie, LLC
An NCADA Workers' Compensation Practice Group Article

The issue of joint employment and the lent employee doctrine under North Carolina Workers’ Compensation law is now before the North Carolina Supreme Court. The Court’s decision could have significant implications for both public employers and private contractors who regularly engage the services of off-duty law enforcement personnel.

In Lassiter v. Robeson County Sheriff’s Department, an increasingly common employment scenario is presented. It is a familiar scene: a law enforcement officer directing traffic after a local concert or sporting event, or an off-duty officer providing security outside a downtown bar. In some of these scenarios, off-duty law enforcement officers are working for private businesses. The legal question arises: who is liable when an off-duty officer is injured while performing these duties?

In Lassiter, a large-scale roadwork project required law enforcement officers to direct traffic and ensure safety. The North Carolina Department of Transportation (“NCDOT”) contracted with Truesdell Corporation to perform bridge preservation work on Interstate 95, covering portions of both Cumberland and Robeson Counties. As part of the project, Truesdell was required to retain law enforcement personnel with activated blue lights to manage traffic in accordance with a formal traffic control plan. The plaintiff, a deputy with the Robeson County Sheriff’s Office (“RCSO”), was given the opportunity to work on the project through his department.

While performing traffic control duties, the plaintiff was struck by a vehicle and sustained severe injuries to his head, arms, hands, and legs. He filed a Form 18 with the North Carolina Industrial Commission, alleging that both RCSO and Truesdell were his employers at the time of the injury. Both entities denied the existence of an employment relationship.

The case was initially heard by Deputy Commissioner Peaslee, who issued an Opinion and Award finding that the plaintiff was an employee of RCSO at the time of injury, and that no employment relationship existed between the plaintiff and Truesdell. Truesdell was dismissed from the case.

On appeal, the Full Commission affirmed the Deputy Commissioner’s findings. RCSO then appealed to the North Carolina Court of Appeals.

The Court of Appeals addressed two principal issues: (1) whether the plaintiff was an employee or an independent contractor, and (2) whether a joint employment or lent employee relationship existed between the plaintiff and Truesdell.

The threshold question in such cases is whether a valid employer-employee relationship existed at the time of the injury. The court applied the factors established in Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137 (1944), which were later assessed, in a similar context, by the North Carolina Supreme Court in State v. Gaines, 332 N.C. 461, 421 S.E.2d 569 (1992). In Gaines, the Court held that police officers retain their law enforcement status at all times—regardless of whether they are “on duty” or “off duty”—when performing duties to enforce the law or protect the public. Id. at 466, 421 S.E.2d at 571.

Applying the Hayes factors, the Court of Appeals found that the plaintiff was hired specifically because of his status as a sworn officer and used his training and experience in law enforcement to manage traffic. The court determined that the plaintiff was not an independent contractor but was acting as an employee of RCSO at the time of the injury.

The Court then turned to the question of whether a joint employment or lent employee relationship existed between the plaintiff and Truesdell. In Whicker v. Compass Group USA, Inc., 246 N.C. App. 791, 784 S.E.2d 564 (2016), the Court of Appeals set forth a three-part test for determining joint employment:

1. An express or implied employment contract must exist between the plaintiff and the alleged employer;

2. The employers must be engaged in the same or similar business; and

3. Both employers must exercise control over the manner and method of the plaintiff’s work.

Id. at 797, 784 S.E.2d at 569.

In Lassiter, the Court of Appeals found that an implied employment contract existed between the plaintiff and Truesdell. Although RCSO retained direct supervisory control, Truesdell had the authority to request, schedule, and directly pay law enforcement officers—satisfying the first prong of the Whicker test.

Regarding the third prong—control—the court found that both RCSO and Truesdell exercised simultaneous supervision. While on-site supervision came from RCSO superior officers, Truesdell retained functional control through its authority to determine the number of officers needed, to develop traffic control plans, and to relay those plans to supervisors. This control was sufficient to meet the third prong of Whicker.

However, the court departed from existing precedent on the second prong. The Full Commission had determined that the plaintiff was engaged in law enforcement duties, not construction work, and therefore RCSO and Truesdell were not “engaged in the same or similar business.” Lassiter, 896 S.E.2d at 294. The Court of Appeals rejected this narrow reading, modifying the second prong to require only that “the service being performed by the plaintiff for each employer must be the same or closely related.” Lassiter, 896 S.E.2d at 303 04. The court reasoned that although the plaintiff’s work was law enforcement in nature, it was undertaken in direct support of Truesdell’s construction project, making the services between RCSO and Truesdell “closely related.” Lassiter, 896 S.E.2d at 304.

As a result, the Court of Appeals concluded that a joint employment relationship did exist and reversed the Full Commission’s Opinion and Award.

The North Carolina Supreme Court will now weigh in on these significant issues. The ruling could reshape how joint employment is defined in the state—particularly as it applies to off-duty law enforcement officers performing functions for private entities.

If the Supreme Court affirms the Court of Appeals’ modified test, it would significantly expand the scope of joint employment. The precedent in Whicker requires: (1) an express or implied contract; (2) that the employers be engaged in the same or similar work; and (3) shared control over the employee’s duties. A broader reading of the “similar work” requirement would expose private companies to increased liability for injuries suffered by off-duty law enforcement officers operating in quasi-public roles.

by Michael Hill, Ph.D., P.E. | Biomechanics

Biomechanical engineers investigate a wide variety of cases involving injuries and injury claims, including workplace accidents, falling objects, product failures, slip, trip, and falls, in addition to motor vehicle accidents. Whereas civil engineers, industrial and safety experts, premises liability experts, and accident reconstructionists perform inspections to check for compliance with various codes and may investigate the physics of an incident and what may have gone wrong to cause it, biomechanical engineers analyze how the motions and forces involved in an incident resulted in damage to specific body parts.

Biomechanical Engineering Defined

Biomechanical engineering is a part of a larger field of study known as biomedical engineering, which combines the study of living organisms and medicine with the branch of science concerned with devising and creating machines. Biomechanics deals specifically with mechanics, which involves the motions and forces of the machinery. Biomechanical engineers study the mechanical workings of the human body, just as mechanical engineers study the mechanical workings of materials used in designing automobiles, airplanes, assembly lines, etc.

Biomechanics in Industrial Settings

There are a variety of situations at the workplace that result in injuries, which may be reported. These may involve potential trip hazards, interacting with different types of machinery, performing routine tasks, or accidents involving motorized vehicles such as automobiles, forklifts, yard mules, etc. Below are descriptions of a few case studies based on real-world accidents in which a biomechanical engineer was able to assist.

Forklift and Trailer Pinch Point

An employee at a warehouse was nearing the end of his early-morning shift. After a trailer had been unloaded at the dock, the employee was tasked with closing the trailer door. The employee was not able to reach a strap to close the door, so he used a forklift to assist. He reversed the forklift down a ramp to the trailer door, reached up and out of the forklift to grab the strap, moved the forklift forward up the ramp, and then stepped off the forklift to close the door. As he was lowering the trailer door to close it, the forklift moved back down the ramp and pinned the employee against the door. A security camera recorded the incident.

A forensic biomechanical engineer was retained to investigate the case. As part of the investigation, the engineer inspected and 3D-scanned the forklift, the strap, and the site where the incident occurred. By applying the peer-reviewed literature on human size and reach, the biomechanical engineer worked with animators to reconstruct the incident, showing how the employee moved based on his size, the geometry of the site, and on the surveillance footage. The conclusion was that the employee exited the forklift while it was still in motion, resulting in the accident.

Falling Object on a Hard Hat

At an industrial site, an employee was working on a level below another employee, when the former dropped his hard hat onto the hard hat of the latter standing below. A forensic biomechanical engineer was retained and performed testing and literature research to determine the forces and head accelerations that were involved. The engineer concluded that the components of the hard hat, including the suspension and hard outer shell, served their purpose in reducing the head accelerations compared to a no-hard-hat scenario. The biomechanical engineer opined that the resulting accelerations would not be consistent with the reported brain injuries.

Operating a Lift on an Asphalt Surface

A city parks service employee was driving a telescopic forklift along a city-maintained asphalt road between sites. The employee reported that he sustained spinal injuries due to the vibrations induced while driving over rough portions of the road. The forklift and a driver were instrumented with accelerometers and high-speed video cameras, and the forklift was driven along the reported route. Also, the driver’s head and upper torso were recorded by standard and high-speed video equipment from a vehicle following behind. The accelerations were determined to be well within those experienced during typical driving situations. The head and upper body movement were very minimal and definitely within the movements expected during routine activities of daily living. The biomechanical engineer concluded that biomechanical mechanisms for spinal injuries were not present during the reported incident.

Trip and Fall in a Parking Lot

In the parking lot of a chain grocery store in a busy city center, a customer tripped and fell as she exited the grocery store and walked across the parking lot. The customer claimed that the grocery store had poorly maintained the parking lot and that it presented an unreasonably dangerous condition. Low-resolution surveillance video of the accident depicted the trip and fall, but it was not clear precisely in which area the fall occurred. The site was inspected, and a higher-resolution video camera was elevated on a boom to be adjacent to the subject surveillance camera. The high-resolution footage of people walking to and from the parking lot and grocery store was compared to the low-resolution video from the subject surveillance camera to determine the precise location of the fall. It was determined that a car was turning into the parking lot, so the plaintiff increased her speed and fell into an area in which there were no parking stops or potential tripping hazards. A biomechanical engineer concluded that there were no exceptionally dangerous tripping hazards in the area.

Summary

Biomechanical engineers play a crucial role in a range of impactful tasks, including conducting sophisticated forensic analyses for personal injury litigation and pioneering the design of biomedical devices and methodologies that address injuries and diseases. By meticulously examining accident scenarios, forensic biomechanical engineers can identify critical hazards and evaluate whether the reported injuries are consistent with, or logically arise from, the mechanics of the incident. Their work not only enhances our understanding of accidents but also significantly contributes to the advancement of safety standards and injury prevention strategies.

__________________________

Michael Hill, Ph.D., P.E., is a Biomechanical Engineer at Quality Forensic Engineering, LLC. His background is in orthopedic and cardiovascular biomechanics, vehicle accident reconstruction, injury consistency analysis, mechanical design, instrumentation, and experimental analysis. Dr. Hill has lectured at universities and his research findings have been published in 17 academic articles. Dr. Hill has presented at over 40 international and national scientific conferences and his work has been extensively cited by others. His primary focus is on motor vehicle accidents and premises liability incidents, for both plaintiff and defense cases.

by Leah S. Hartman, Ph.D., CPO, CXLT, and Stephanie Whetsel Borzendowski, Ph.D., CPSI, CXLT

Introduction

Human Factors is the scientific study of human interaction with their environment, based on the scientific understanding of human capabilities and limitations (e.g., cognition, perception, biomechanics, etc.). A human factors expert should provide an objective analysis of relevant facts and offer insight into human behavior under specific circumstances. While the explanation of these principles may appear familiar to even a layperson due to their personal experiences in similar contexts, they can fail to fully appreciate the complexity of how the environment affects human behavior. Human factors practitioners can examine aspects of the environment and the human independently, and they are uniquely qualified to analyze the interaction between the two.

While practitioners in other disciplines (e.g., engineers, architects, medical practitioners, etc.) can address one of the elements in the human-environment relationship, they typically do not possess expertise (i.e., educational background or training) in the interaction between the two. Therefore, human factors experts can provide attorneys, judges, and/or juries with a framework for understanding an event or incident by relying upon their education, training, and familiarity with the significant body of literature, standards, and regulations within this field.

Civil litigation is ripe with opportunities for the utilization of human factors analyses to further comprehend simple or complex cases. Exemplar areas in which human factors professionals often provide valuable insight include (but are not limited to): falls, collisions, workplace injuries, warnings, drownings, etc. A human factors analysis may be of use in personal injury litigation when there are questions regarding the relative contributions of environmental factors and human characteristics, and the interaction between the two. The following are examples of contexts in which this type of analysis can enrich the comprehension of case facts.

Premises liability

A trip is characterized by a foot unintentionally coming into contact with the ground and/or an obstacle which arrests the forward movement of the foot. In this biomechanical incident, there is typically a rotation of the body in the direction of travel. If the acceleration of the body cannot be arrested, a fall will likely result. Environmental factors typically considered in the analysis of a trip and fall can include geometric proportions of changes in level along walking surfaces and/or the placement of obstacles (permanent or temporary).

A fall that is attributed to a slip occurs when a foot unintentionally slides across a surface, which can result in a loss of balance. Bilateral slips are when both feet are affected. Typically, this results in a feet-forward slip and fall with the trunk of the body falling backwards and landing posteriorly. Unilateral slips occur when the leading foot slides forward as the back foot remains planted. This results in the legs splitting, but the trunk of the body typically will stay upright or in a more forward position than that of a bilateral feet-forward slip and fall. Environmental factors to be considered are the coefficient of friction of the floor surface, contaminants on the surface, presence of warnings and/or mats, etc.

Another example of a fall on properties can include missteps (e.g., at a single riser change in elevation, stairs, etc.). Commonly considered environmental factors include the presence of handrails, warnings, conspicuous markings on nosings, etc.

While each type of fall has unique considerations from the perspective of environmental features, the human aspects of these incidents share commonalities. These include gait pattern, clothing (e.g., footwear), physical health, expectations, etc. Examination of the human-environment interaction in the context of slips, trips, and falls will include whether features of the walking surface and/or obstacle(s) are readily perceivable and avoidable to a reasonably attentive pedestrian within the context of the general incident area.

A common element in assessing the perceivability of a walkway hazard is available lighting at the time of the incident. The presence of artificial illumination along walking surfaces is particularly important to consider when little to no ambient illumination is present. While people often mistakenly believe they can safely navigate darkened environments, visual processing of objects and fine details are degraded under these conditions. Therefore, illuminance measurements under conditions comparable to an incident can be a key element in the analysis of a fall.

Transportation

While analyses of traffic crashes often include engineers specializing in accident reconstruction, human factors professionals can offer additional, unique insights into the perception and response of typical drivers. Specifically, a human factors expert can apply their expertise regarding human capabilities and limitations (i.e., perception and cognition) to assess the “reasonableness” of a driver’s response to a hazard.

In assessing a driver’s response to a hazard, it is important to distinguish between the visibility and conspicuity of objects. Visibility describes a driver’s ability to detect an object when they are aware of its location. Conspicuity refers to properties of an object in the context of its environmental surroundings, such that the object can capture the attention of a driver whose attention may be directed elsewhere. Addressing the adequacy of an object’s conspicuity is often a factor in collisions involving pedestrians, bicyclists, commercial vehicles, and objects in/along the roadway.

Environmental factors to consider in assessing the conspicuity of a hazard, and whether it is perceivable, can include ambient lighting, properties of the hazard (e.g., color, presence of retroreflective elements, luminance), surrounding landscape, etc. Drivers’ expectations under the conditions and circumstances of a collision are often an essential consideration in analyzing their interpretation of available visual information. Additional driver characteristics to consider include attention/distraction, impairment, visual health, etc. Conducting a human factors analysis to determine the conspicuity and perceivability of a hazard can allow attorneys, judges, and/or juries to better understand the likelihood that a collision could have been avoided.

A common question to evaluate the likelihood of a collision occurring is whether a driver should have perceived and responded to some hazard with enough time to avoid impact. The perception response time (PRT) interval typically starts when a potential risk is first detectable, (i.e., something appearing to move towards or into the driver’s path) and ends when the driver initiates a response. In order to analyze data related to a driver’s response to a hazard, it is important to consider the context in which the incident occurred. Therefore, reliance on a single PRT value without consideration for any factors that may affect a driver’s perception and performance is inappropriate and oversimplifies the complexity of driving. A human factors expert relies upon applicable literature and research to provide a framework to understand a driver’s response (or lack thereof).

Conclusion

While other experts can offer insight into specific issues related to the environment or human for matters in civil litigation, a human factors professional can address the complexity of the interaction between the two as well as their individual contributions.

At Perceptio Forensics, we provide human factors consulting services in a variety of practice areas, aiming to provide our clients with objective, evidence-based insight into their cases. Interested in learning more about human factors and its applications? Feel free to reach out to either Dr. Hartman or Dr. Whetsel Borzendowski.

Drawing from a rich and candid conversation among three distinguished North Carolina judges—the Honorable Robert Christopher Dillon (Chief Judge of the Court of Appeals), the Honorable Matthew Houston (Special Superior Court Judge for Complex Business Court Cases), and the Honorable Aaron Berlin (Superior Court Judge)—this article distills practical wisdom for attorneys seeking to elevate their courtroom presence and advocacy.

1. Preparation Is Power

• Judges can instantly tell who’s prepared and who isn’t.
• Thorough preparation builds credibility and confidence.
• Readiness includes knowing your case inside and out, anticipating questions, and organizing materials for easy reference.

2. Know Your Audience:  The Judge

• Judges may not know your case as well as you do—start with a clear, concise summary of the issue before the court.
• Avoid diving straight into legal minutiae; provide context first.
• Tailor your presentation to the judge’s role (e.g., trial vs. appellate) and preferences.

3. Briefs Matter—Make Them Count

• Be concise and focused. Avoid unnecessary facts or overly long narratives.
• Highlight the key issue early in the brief, and lead with your strongest argument for why the court should rule in your favor.
• Use the brief to build your story but keep oral arguments sharp and issue-driven.

4. Credibility Over Combat

• Concede strong points from the opposing side when appropriate—it builds trust.
• Avoid unnecessary adversarial behavior or name-calling.
• Have professionalism and reasonableness in tone and demeanor, judges appreciate and expect this behavior.

5. Courtroom Comfort Comes with Experience

• Seek out opportunities to be in court—jury trials, hearings, calendar calls.
• Don’t underestimate the value of “reps” in building courtroom confidence.
• Surround yourself with mentors and colleagues who challenge and support you.

6. Use Technology Wisely

• Webex and remote testimony can be cost-effective but require preparation.
• Always test tech setups before court appearances.
• Maintain courtroom decorum—even virtually. Remind clients to present themselves professionally.

7. Understand Local Rules & Procedures

• Know that each county and court may have different filing, briefing, and scheduling rules.
• Build relationships with TCAs (Trial Court Administrators)—they’re invaluable resources.
• Familiarize yourself with the Business Court rules if applicable.

8. Preserve Issues for Appeal Thoughtfully

• Know your standard of review and tailor your arguments accordingly.
• Frame appellate issues clearly and avoid overloading briefs with irrelevant facts.
• Make it easy for appellate judges to rule in your favor—clarity and structure are key.

9. Be the Lawyer Others Want to Work With

• Litigation is inherently adversarial—don’t make it personal.
• Professionalism and courtesy go a long way in building reputation and resolving cases efficiently.
• Judges notice and appreciate attorneys who foster a respectful courtroom environment.

10. Take Advantage of Training Opportunities

• Participate in pro bono programs that offer oral argument experience.
• Watch oral arguments online to learn from others.
• Seek feedback and mentorship to continuously improve.

*This article is based on a panel discussion moderated by Jasmine Pitt of Akerman, featuring Chief Judge Dillon, Judge Berlin, and Judge Houston, held during the 48th Annual Meeting on Saturday, June 14, 2025, in Wilmington, NC.

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by Betsy Keesler, BSN, RN, CLCP

A soundly constructed life care plan is an evidence-based document that comprehensively identifies an individual's current and future care needs as related to a catastrophic injury or chronic health condition. Such needs may include a person's individual requirements for healthcare, educational/vocational services, home modifications, living arrangements, attendant care, equipment, medications, supplies and community services. Many, if not all, of these items require recommendations from a healthcare professional acting within their professional scope of practice. When a life care plan lacks appropriate medical foundation and is determined to be incongruent with accepted life care planning published standards and consensus statements, it will likely be challenged and ultimately may not be accepted into the evidentiary record for the evaluee (subject person).

There are several appropriate avenues a Certified Life Care Planner (CLCP) can utilize to establish solid medical foundation for the life care plan. The most obvious track is direct consultation and collaboration with the evaluee’s treating and/or evaluating medical, psychological, or allied health professionals. Of note, it is essential such consultations be endorsed by the opining healthcare provider through signature, prior to the date of release of the life care plan report. Another appropriate avenue would include directly referencing and utilizing published clinical practice guidelines, empirical research and/or other reliable and credible peer-reviewed publications to identify the standards of care for items applicable to the evaluee’s needs. Equally important, the life care plan should draw clear links between specific statements made within the analyzed medical records and the items or services included within the life care plan. Finally, cited testimony from evaluating and/or treating providers connected with the evaluee’s health care can also serve as appropriate medical foundation.

It is important to understand the subspecialty practice of Life Care Planning has many published consensus and majority statements, relative to the developmental process of establishing solid medical foundation. In 2018, the International Association of Rehabilitation Professionals (IARP), in conjunction with the International Academy of Life Care Planners (IALCP), published a special issue of the peer-reviewed Journal of Life Care Planning which identified current consensus and majority statements for life care planning professionals. These consensus and majority statements were published following completion of a Delphi study of multiple, professional summits across a 17-year period. Of note, the purpose of the Delphi research method is to identify best practice consensus among subject matter experts.

Relative to establishing medical foundation for the life care plan, specific consensus statements address this matter head on.

Life care planning consensus statement 80: “Life Care Planners may independently make recommendations for care items/services that are within their scope of practice.”

Life care planning consensus statement 81: “Life Care Planners seek recommendations from other qualified professionals and/or relevant sources for inclusion of care items/services outside the individual life care planner’s professional scope of practice.”

From the cumulative pool of expert opinions arose the Life Care Planning Standards of Practice, as published by IARP and IALCP, currently in the Fourth Edition, 2022. Standards of practice also address the critical component of evidence-based medical opinion from a healthcare provider that practices/provides the same recommendations they have opined about in the life care plan. In other words, their opinion falls within their healthcare professional scope of practice. The Fourth Edition Standards of Practice provide this guide regarding appropriate medical foundation:

“To address the future care needs, the life care planner collaborates with other professionals in order to develop a transdisciplinary life care plan inclusive of recommendations outside of the individual life care planner’s professional scope of practice. No single rehabilitation or health care professional is trained to have comprehensive expertise in all areas where recommendations may be needed. Even within a profession, there are specialty and sub-specialty divisions, which may limit the life care planner’s ability to independently make all needed recommendations.”

Why do professional guidelines and standards even matter? This question was expertly answered through a 2012 IARP publication entitled “Expert Disclosure: Federal Rules of Civil Procedure 26, 34, & 37.” Dr. Timothy Field and Mr. Kent Jayne emphasized the following to the Rehabilitation and Life Care Planning Professionals as follows:

“The necessary qualifications for the FRC (forensic rehabilitation consultant) have been well established and documented and any forensic rehabilitation consultant should be familiar and comply with the usual and customary guidelines set forth by professional associations for the profession. Association standards, such as statements on scope of practice, professional ethics, and a standard of practice are all important documents and provide significant information of both the necessary credentials and the guidelines for practice.”

In short, the consensus statements and standards of practice are what give vigor and credibility to the life care planning practice.

The following realistic case scenarios illustrate both appropriate and inappropriate practices for the establishment of life care planning medical foundation.

Case #1: An adult evaluee was involved in a head-on motor vehicle collision and sustained a traumatic brain injury (TBI) as well as cervical vertebrae fracture. Fortunately, the evaluee was not paralyzed but was with permanent cognitive functioning deficits and ongoing neck pain and headaches. The evaluee underwent outpatient therapy with a speech language pathologist, an occupational therapist, and a Physiatrist (Physical Medicine and Rehabilitation Physician) who oversaw all medical care relative to the injury, as well as pain management modalities. A life care plan was developed by Certified Life Care Planner who also held a Doctor of Chiropractic (DC) licensure. The life care plan included many items, some of which were ongoing spinal injections for cervical pain management and narcotic medication for headaches, all for the duration of a lifetime. During deposition testimony, the doctor expounded upon his education and clinical practice as foundation to justify his ability to opine every future care recommendation within the life care plan.

To analyze this scenario, it is important to understand that not all doctors can provide all interventions that any ill or injured person may need. Some people do not understand this. The Chiropractic field of healthcare, while incredibly helpful for many people, does not perform spinal injections for pain management, nor do they prescribe narcotic medications. Thus, the life care planner was working outside his scope of practice in recommending spinal injections and narcotic medications. Unfortunately, he did not consult with the treating Physiatrist, or the allied health professionals providing current treatment. There was no evidence that an appropriate evaluating healthcare practitioner, such as a Neurologist or Interventional Pain Management Specialist, was retained to provide future treatment recommendations. There was no evidence of connection drawn between the current treatment found outlined in the medical records and what the life care planner recommended. There were no supporting clinical practice guidelines relative to the recommendations made. Ultimately, the life care plan lacked the required credible and reliable data, as well as the overall foundational information necessary, to formulate an evidence-based plan that was consistent with life care planning standards and expert consensus.

Case #2: An evaluee, with a 30-year history of smoking a pack of cigarettes a day, was rear-ended in a motor vehicle collision. Several days afterwards she began complaining of neck pain with radiating pain down her left arm. The first physician she sought treatment from advised rest, Tylenol and physical therapy. Medical reporting outlined she completed only 8 sessions of physical therapy and stated there was no improvement in her symptoms. She sought a second opinion from a Spinal Orthopedist who opined she had failed conservative therapy and therefore was eligible for a four-level spinal fusion surgery. Then, she sought another Orthopedist opinion (third one) who ordered additional MRI studies and a nerve conduction study. He diagnosed her with ulnar nerve compression and mild herniation at the C6-7 level. He then recommended only conservative therapy and did not agree with spinal fusion. Finally, the fourth Orthopedic opinion she sought indicated that she needed Ulnar Nerve decompression surgery, which she completed. Then, the fourth Orthopedist treated her with a cervical spinal steroid injection, which she reported gave total relief of all her pain. Additionally, this same Orthopedist reported clinical research strongly suggested the evaluee’s extensive smoking history predisposed her to significant surgical complications, including a lack of union at the surgical site, if she were to undergo spinal fusion.

However, the life care plan was developed by a Registered Nurse (RN) and CLCP. She provided a future cost analysis for only the four-level spinal fusion surgery treatment opinion. The life care planner did not acknowledge any other medical opinions or successful treatment the plaintiff had received as was documented within the medical records, nor did she acknowledge the clinical practice research citing smoking as detrimental to the success of spinal fusion. The life care planner acted outside her scope of practice by determining that the surgical opinion was the only opinion appropriate for the evaluee. An RN is not an operative practitioner and therefore not in a position to make any surgical decisions. Clearly, she did not consider all the evidence available to make a solid and credible life care plan for the evaluee.

Case #3: An adult evaluee sustained an upper extremity amputation secondary to malfunctioning equipment while working as a machinist. The life care plan was developed by an experienced and licensed certified rehabilitation counselor (CRC) who was also a certified life care planner (CLCP). The evaluee’s treating health care providers included a Physiatrist, a physical therapist, a psychologist, and a prosthetist. The life care plan included recommendations for the specific type, frequency and duration of future psychological counseling, medical care, medications, diagnostic tests, and prosthetic equipment for the evaluation.

The CRC/CLCP did not make any recommendations outside of his scope of practice. The life care planner noted the medical records reviewed and included a treatment summary within the life care plan as well as recommendations for future care that were secured in collaboration with the treating providers and signed by them, prior to the release of the life care plan report. The recommendations included in the plan were all evident through the medical records, supporting clinical practice guidelines and endorsements.

Sometimes securing the appropriate credible medical recommendation takes extra leg work, but in the end, it is the foundation for which that life care plan will hold up under close scrutiny.

References:

Field, T. & Jayne, K. 2012. Expert Disclosure: Federal Rules of Civil Procedure 26, 34, 27. Athens, Georgia: Elliott & Fitzpatrick, Inc.

International Association of Rehabilitation Professional & International Academy of Life Care Planners (2022), Fourth Edition. Standards of Practice for Life Care Planners.

Johnson, C; Pomeranz, J. & Stetten, N. 2018. “Life Care Planning Consensus and Majority Statements 2000-2008: Are They Still Relevant and Reliable? A Delphi Study.” Journal of Life Care Planning, 16 (4), 5-13.

Johnson, C; Pomeranz, J. & Stetten, N. 2018. “Consensus and Majority Statements Derived from Life Care Planning Summits Held in 2000, 2002, 2004, 2006, 2008, 2010, 2012, 2015 and 2017 and updated via Delphi Study in 2018.” Journal of Life Care Planning, 16 (4), 15-18.

Preston, Karen, et al. “Standards of Practice for Life Care Planners, Fourth Edition.” Journal of Life Care Planning, 20 (3), 5-24.

Weed R. & Berens D.E., (editors). 2018. Life Care Planning and Case Management Handbook. (4th ed.). New York, NY: Routledge.

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Embracing Opportunities Amid Legal Challenges: Highlights from the Annual Meeting Program

This year's Annual Meeting provided members with enriching networking opportunities and impactful continuing legal education sessions. Guests included representatives from our state’s judiciary, law schools, and other bar organizations, adding depth and diversity to informal discussions.

Highlights from the programming included sessions such as 'Recent Decisions of Relevance,' a key practice resource for members, and a panel discussion on 'Navigating the Legal Impacts of the New DEI Executive Orders.' Attendees gained perspectives from a 'View from the Bench' session featuring judges from the Court of Appeals, Business Court, and Superior Court,  a keynote address on maintaining professional well-being by Molly Grantham on 'Practice Makes...Progress,' and an ethics discussion centered on lessons from the Murdaugh Case, featuring Judge Clifton Newman. Additionally, breakout sessions led by the Practice Groups provided interactive discussions tailored to specific practice areas of interest.

During the Annual Meeting, the annual membership and business meeting was held, alongside the recognition of professionalism award winners. Bob Sumner, Partner Emeritus of Cranfill Sumner, was honored with the J. Robert Elster Award for Professional Excellence, and Jon Berkelhammer of Ellis & Winters received the Award for Excellence in Trial Advocacy.

At the Business Meeting, outgoing President J.D. Keister reflected on the year’s initiatives and outlined critical areas of focus for the NCADA, including trial skills training programs leveraging experienced trial attorneys, strategies to address nuclear verdicts through a specialized sub-committee, and the adoption of an updated diversity, equity, and inclusion policy. Keister thanked his colleagues for their support during his presidency and commended the Board for their thoughtful handling of these initiatives. (Watch and listen to JD's remarks here.)

The meeting concluded with the election and confirmation of the 2025-2026 Officers and Directors. George Simpson, IV was confirmed as President; Erin McNeil Young was elected President-Elect; Daniel M. Nunn as Executive Vice President; Scottie Forbes Lee as Treasurer; and Nicole B. Slaughter continues her term as Secretary.

The NCADA also welcomed several new members to the Board of Directors for a term through June 2028: Allison Becker, Bruce Daughtry, John Kubis, Jr., John Nunnally, and Jilliann Tate. Continuing Board members were recognized for their ongoing service and contributions: Kara Bordman, Ryan Bostic, Christy Dunn, Joshua Durham, JD McAlister, Kristine Prati, Stuart Stroud, and Robert Young remain integral to the organization's leadership. Ex-officio members including Gary Parsons, Bob Kaylor, Ashley Brathwaite, Ryan Eubanks, and Nathan Hewitt were also acknowledged for their work across key initiatives.

Heartfelt thanks was extended to retiring Board members after their service terms: Denaa Griffin, Scottie Forbes Lee (transitioning into the Treasurer role), Charles McGee, Jasmine Pitt, and Austin Walsh. Chris Kiger completed his term as an officer and is a past president of the NCADA. Each member was thanked for their dedication and contributions to the organization.

Wrapping up the event, incoming President George Simpson shared reflections on his professional journey, stemming from his early career at Cranfill Sumner, where he was encouraged to engage with NCADA by Richard Boyette. Simpson committed to honoring the organization’s legacy and emphasized priorities such as networking, CLE opportunities, amicus work, and legislative efforts. As he steps into leadership, Simpson pledged to build on NCADA's foundation and advance the organization’s mission for the civil trial bar in North Carolina. (Watch and listen to George's remarks here.)

J.D. Keister, President (2024-2025)
McAngus Goudelock & Courie LLC

I hope to see you at our upcoming Annual Meeting in just a few weeks. We’re looking forward to hosting the meeting in Wilmington again. With unmatched professional development programming tailored to build skills and meet your practice needs, you will not want to miss attending. Join us June 12-15 to learn and network with peers and colleagues from across North Carolina.

The Annual Meeting is also when the NCADA transitions to new leadership. As I shared in my note when taking office last June, I attended my first Annual Meeting over 20 years ago and was encouraged by firm mentors to get involved in the NCADA. In an era where retention and young lawyer development is such a challenge for our member firms, NCADA is an excellent opportunity for firms to invest in younger lawyers in a similar fashion. I encourage younger members to attend, participate, and get involved! There is not a better way to learn or get connected within the civil defense bar. Go to member socials and events. Write articles. Be on a committee.

Major challenges impacting our firms and practices include generative AI into the practice of law, exploding verdicts, and the training and retention of talent. NCADA is working on programming and resources to support members and firms in these areas to include training newer and mid-level attorneys in essential and advanced litigation skills, information resources on AI and programming at our CLE offerings, and appointing a committee to explore strategies and training for defense attorneys on nuclear verdicts. You are invited to share your knowledge and expertise to volunteer to be involved. Contact me if interested.

Your Association is recognized statewide and nationally with working relationships with the NC Chamber, DRI, the DRI Center for Public Policy and Lawyers for Civil Justice working collaboratively on a tweak to Rule 702 at the General Assembly to align with the federal rule. Our Amicus presence continues to grow, and we are fortunate to have an Amicus Committee led by Duane Jones, Steven Bader, and Jeff Kuykendal vetting cases of relevance.

The state of the Association remains steady and stable. Our membership numbers are consistent, yet we encourage you to invite colleagues and peers to join us. We are fortunate to have strong support from our Litigation Support Partners, and we encourage you to take advantage of their expertise and services.

Many in Western North Carolina are still dealing with the impact from Hurricane Helene last September. We applaud the many contributions of our members and firms in supporting recovery efforts. That same day we held our annual Fall Seminar in Cary and despite the storm had good attendance and an excellent CLE program. This year, we have scheduled the Fall Seminar a few weeks later in October and will consider moving to late October to early November, which was the timing in our early years.

Finally, speaking of our early years, NCADA’s 50th Anniversary is in 2 years and will be celebrating this milestone in 2027. Today’s NCADA is THE organization for those of us on the defense side of the “V.” It is an organization where people can connect, where members can learn, and where knowledge can be passed from trial and industry legends to the next generation. What does the next 50 years look like to you? Let us know.

by Michael Hedgepeth, Hedrick Gardner KIncheloe & Garofalo

No one likes hidden fees – especially when they show up after you thought a claim was fully resolved. Unfortunately, that’s exactly what can happen under North Carolina’s Second Injury Fund statute.

Under N.C. Gen. Stat. § 97-40.1, the North Carolina Industrial Commission has the authority to assess a fee to be paid by Defendants (employers, carriers, and TPAs) whenever an employee is assigned a permanent partial disability (“PPD”) rating. This fee may be assessed regardless of whether the claim is resolved through an Industrial Commission Form 26A or a clincher agreement.

Here’s how it typically works:

• You submit a Form 26A or clincher agreement involving a PPD rating.
• The agreement is reviewed and approved by the Industrial Commission.
• You pay the rating or settlement amount to the employee.
• Then, weeks – or sometimes more than a month – after approval, you may receive an invoice from the Commission assessing a fee of $250 or $750, depending on the body part or amount of the PPD rating.

Key Points:

• The Second Injury Fund fee is governed by N.C. Gen. Stat. § 97-40.1.
• The statute allows the Commission to assess a fee against the employer or its insurance carrier as follows: 
• • Up to $250 for the loss, or loss of use, of each minor member in cases of permanent partial disability.  
  • Up to $750 for a fifty percent (50%) or more loss, or loss of use, of each major member, defined as the back, foot, leg, hand, arm, eye, or hearing. 
• The fee is assessed inconsistently and applied at the discretion of the Commission. It is not consistently assessed in every case – or even in most cases – but we have seen a recent uptick in assessments. 
• There is no prior warning of when the fee will be imposed.

Summary: The Second Injury Fund is still a viable statutory mechanism, and while the associated fees are not commonly assessed, they are legally enforceable and must be paid when invoiced. Be aware that the fund exists and budget accordingly in cases where you are resolving a claim involving a PPD rating. 

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This article was originally posted on the Hedrick Gardner blog and reprinted with permission.  

By Bonnie Ruffin, NCCP, CSR, CR

BEYOND THE QUESTIONS: THE ART OF EARNING WITNESS TRUST

One of the biggest challenges I’ve observed during depositions over the years is an attorney getting a witness comfortable enough to speak openly and honestly. Some attorneys are much better at this than others. The ones who come across as genuine, like regular people you'd actually find on a jury, tend to be the most effective.

When a witness feels at ease and genuinely likes the attorney, they’re often more transparent, even when the truth may hurt their case. I’ve seen witnesses willingly disclose damaging details simply because they felt safe enough to be honest.

Attorneys who are most successful at discovering undisclosed information often share a few key traits:

Attorneys who have learned how to connect with witnesses are often able to make them feel at ease, so much so that they may start divulging more information than expected. In contrast, attorneys who come across as stern, rushed, unfriendly, or poor communicators tend to get the least out of a witness. Responses like “not that I recall” become the norm, and meaningful details are rarely shared. Additionally, oftentimes it is obvious if a witness has been prepped for the deposition.

BEYOND WORDS: THE UNSPOKEN KEYS TO WITNESS COOPERATION

Did you know that our verbal communication only makes up a small part of how we communicate? In depositions, communication goes far beyond just the words being spoken. Voice, tone, and body language all play a critical role, and when they don’t align, it’s noticeable. In fact, research shows that verbal communication accounts for only a small portion of what we actually convey. Sometimes, what a person says is completely contradicted by how they say it or how they physically respond.

Like when striving to connect with a jury panel, attorneys often take a similar approach when deposing lay witnesses or interviewees. Building rapport can start with simple, intentional behaviors, such as:

These subtle, human cues can be the difference between a witness who shuts down and one who opens up. Working with each witness is an important piece to every case, and how you connect with them can shape what you learn.

BEYOND THE SCRIPT: FOCUSED LISTENING THAT DRIVES DISCOVERY

Attorneys who listen closely and with intention often veer from their prepared list of questions, not because they’re unfocused, but because they’re tuned in. They pick up on subtle clues, body language, or passing remarks and use them to dig deeper. It’s truly an art form. Watching a skilled attorney pivot seamlessly to explore a topic that was only lightly touched on by the witness is impressive. Often, it’s the unplanned questions, the ones sparked in the moment, that lead to the discovery of the most valuable insights. Once they have exhausted that unexpected line of questioning, they return to their outline and continue the examination with even more context.

In contrast, attorneys who rigidly stick to their list of questions might miss critical opportunities. A witness may offer more than what was asked, dropping subtle hints or revealing unexpected details, but if the attorney isn’t actively listening, those clues are lost. Additionally, the witness’s body language can be a powerful indicator that they have more information on a subject. Tone, facial expressions, and body language can all reveal when a subject has struck a nerve or triggered an emotional response. Ignoring these signs means missing out on the deeper truth that could significantly impact the case.

BRINGING IT ALL TOGETHER

The most effective attorneys understand that successful depositions are not just about asking the right questions, they’re about earning the witness’s trust, reading between the lines, and staying fully present. The attorneys who get to the truth know how to make a witness feel seen and heard. They build rapport through warmth and relatability, they watch closely for tone and body language that may reveal more than words, and they listen with intention, ready to pivot when something important surfaces. In high-stakes cases, having a second set of eyes and ears, such as a paralegal or co-counsel, can help capture those fleeting, valuable moments that might otherwise be missed. When attorneys approach depositions with curiosity, compassion, and attention to detail, they create space for the truth to emerge, and that can make all the difference in a case.

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About The Author: Bonnie Ruffin, NCCP, CVR, CSR

Bonnie brings a wealth of firsthand experience to the legal field, backed by her credentials as a North Carolina Certified Paralegal and Certified Verbatim Reporter, along with a Bachelor’s degree in Criminal Justice. She spent years as a trial paralegal managing complex, high-stakes caseloads before transitioning into litigation support, where she continued to work closely with attorneys and legal teams across a wide range of practice areas. With deep insight into case management, courtroom procedures, and the realities of fast-paced legal work, Bonnie is a trusted resource known for delivering practical, experience-driven guidance. She now serves as a partner at DepoScripts, a North Carolina-based litigation support company committed to providing reliable, client-focused solutions nationwide.

by Robert Strahle, J.S. Held

Introduction

Tariffs have once again become the hot headline that dominates the news. This is not the first time owners and contractors have had to manage the risk associated with tariffs and the related impacts.

This article focuses on the immediate and long-term impacts of tariffs on construction projects and even a company's financial health. It also examines potential key risk mitigation measures that can be implemented to minimize those risks.

What are Tariffs and How Do They Impact My Project?

Tariffs are just one lever countries utilize as a trade policy instrument to “raise revenue for the federal government, to restrict imports and protect domestic producers from foreign competition, and to achieve reciprocity through agreements that reduce trade barriers”.¹ Historically, in the United States, tariffs go back as far as the Tariff Act of 1789 signed by George Washington imposing a 5% tariff on nearly all imports to the newly formed United States. Globally, tariffs have been around since ancient Greek and Roman times.

So, what does that mean for me now? For owners, contractors, and suppliers, the concern is that these new or higher tariffs may add costs, impact the project schedule, degrade margin, cause contractual disputes, disrupt the normal supply chain ecosystem, or add challenges in the bid and estimating phase. Complicating all of the above is the global uncertainty of not just whether the tariffs will indeed be implemented, but also the amount of the individual tariffs, as well as the various downstream reactions of the countries and companies subject to the tariffs. A summary of potential impacts is included below.

Project Level

For those projects that are under contract, the implications may be both short-term (direct cost increase related to the imposed tariff) and long-term (delays impacting the critical path), for which a few examples are provided below.

• Increased costs which may not be recoverable under the contract – These could include cost increases for the tariff itself, raw materials, indirect costs, transportation, expediting or compliance costs, or costs to transfer to alternative suppliers.
• Schedule delays – Contractors may focus on the immediate cost impacts of a change in price but may initially fail to realize there could be impacts to the schedule at the time of the change, or as market conditions and secondary supply chain impacts emerge later.
• Disputes leading to costly litigation – Disputes may arise around the ability to recover costs because of tariffs through the contract which may lead to litigation.

Corporate Level

• Potential impact to margins – Impacts may roll up to financials, potentially affecting working capital and ability to bid on future projects.
• Potential impact on existing supplier / vendor network – This may lead to delays and costs to procure materials through existing suppliers or sourcing new suppliers.
• Potential change in market conditions – Uncertainty in the market may result in projects being shelved to take a wait-and-see approach before proceeding (e.g., slow-down in new construction, cancelation of projects underway).

Solutions to Mitigate Impacts

Real-time project management techniques can be implemented to manage cost and schedule impacts.

Project Level

• Address Pre-contract steps – Understand the request for proposal or quotation terms and the ability to negotiate cost escalation impacts.
• READ THE CONTRACT – Understand notice provisions for change requests, or exceptions to changes for escalation or tariffs, which may or may not be excluded from reimbursement.
• Assess direct and indirect cost increases from subcontractors / vendors / suppliers – Implement additional scrutiny of potential claims from third parties for potential increases of costs due to tariffs and / or inflation.
• Assess schedule impacts and management – Evaluate impacts to determine if a schedule impact is due to the supply chain, availability of materials, or lack of inventory.
• Communicate with stakeholders – Once assessments are made of the potential direct and indirect impacts, communicate with project stakeholders as necessary.
• For federal contracts, understand the relevant federal acquisition regulations that provide for price adjustments and incorporate those into the contract(s).

Corporate Level

• Review contract strategy alternatives – Investigate use of alternative contracting strategies or pricing models such as tracking volatile costs with globally recognized indices (e.g., consumer price indices for fuel or steel, or shifting risk to subcontractor / suppliers).
• Review supply-chain logistics – Assess risks and opportunities in your supply chain to safeguard against the impacts of tariffs on cost and schedule. While diversifying your supply chain may reduce risk of delay, it may mean potential quality issues or impact longstanding relationships.
• Review opportunities to offset tariffs – Examine opportunities at local, state, or country level for leveraging trade incentives, tax credits, or other programs that may be offered by the government to offset tariffs.
• Evaluate the company’s risk tolerance – During this time of uncertainty, assess corporate strategy, including market channel, volume, geographical and / or type of projects.

Conclusion

The current uncertainty around tariffs may present immediate and long-term impacts on construction projects and challenges within the industry. Implementing the proper key measures to manage any potential risk is critical to maintaining project stability.

At J.S. Held, we provide expert guidance to help companies adapt to these challenges, ensuring compliance, financial stability, and long-term success.

¹Irwin, Douglas A. "Trade Policy in American Economic History". Annual Review of Economics, August 2, 2020.

This paper is the third installment in a series examining the multifaceted impacts of tariff and trade policies. By delving into the nuances of these policies, we aim to provide valuable insights and perspectives that will inform strategic business decision-making and foster resilience in an increasingly volatile global market. Future papers in this series will explore the specific implications for key sectors such as agriculture, energy, and construction, offering targeted analysis and recommendations to help businesses navigate and thrive amidst evolving trade landscapes.  Publication Date: April 11, 2025

More About the Author:  Robert Strahle is a Senior Managing Director and the US Lead in J.S. Held’s Construction Advisory practice. Robert is a professional engineer and brings more than 35 years of experience in the engineering and construction industry, both internationally and in North America. His experience includes managing complex engineering and construction projects, the resolution of construction disputes including expert testimony, preparation of construction claims, construction cost assessments, construction fraud and forensic investigations, and process controls improvement.

Robert can be reached at rstrahle@jsheld.com or +1 732 221 2639.