By J. Brad Donovan
N.C. Industrial Commission
Begin with the proposition that a writer writes for his or her reader. With that in mind, it follows that whether you have been practicing workers’ compensation law for twenty years or for two weeks, there is a benefit in knowing what the deputy commissioners want to see in contentions and proposed Opinion and Awards. To that end, I have sought the opinions of the current deputies in hopes of being able to provide some instruction regarding the preparation and presentation of contentions and proposed Opinion and Awards to the Industrial Commission. As lofty a goal as this is, it must be recognized that there are currently nineteen deputies hearing cases and writing decisions; therefore, there are approximately nineteen opinions as to the proper method of writing and submitting contentions and proposed O&As. Having said that, I should also point out that I have spoken with a number of the deputies regarding their personal preferences and despite their differences, there are some concerns and desires which are nearly universal. This article will focus on those preferences which the majority of deputies find useful, while relating their individual likes and dislikes as appropriate.
The initial question to be posed is whether a proposed O&A is desired or required in your case, and if so, should you also provide separate contentions in support of your claim? Deputy Commissioner Chapman, for example, does not desire or use proposed O&As. Her rationale is that it takes her more time to doctor someone else's work than to create her own, and she receives sufficient information in a party's contentions and the record to accomplish her task. Conversely, Deputy Commissioners Houser and Glenn do not normally require contentions, but rely on the proposed O&A. Their view is that the only time contentions are necessary is when a new legal issue is being presented which requires an analysis of greater depth than can be contained in an O&A. However, the majority of deputies require both contentions and a proposed O&A in order to obtain a more complete overview of your case.
Those deputies who desire a proposed O&A have somewhat diverse uses for them. Some deputies, myself included, like receiving proposed O&As, but do not use them for purposes beyond providing information. For my part, it has been my experience that contentions lend themselves to the presentation of an argument, relating facts to case law and arriving at conclusions based on legal analysis. There is little room in an O&A for detailed argument, especially one in which it is necessary to compare your facts to those in prior case decisions. O&As, on the other hand, allow for a streamlined recitation of facts in chronological order, followed by a concise recap of the pertinent law and the desired result. Therefore, while I don't use the proposed O&A itself, it is very useful in establishing the chronology of a case as well as providing a clear statement of what that party wants as a result. Deputy Commissioner Dollar, who likewise does not use proposed O&As but still requires their submission, sees an additional benefit: attorneys who prepare a proposed O&A often realize the defects in an argument as they place it on paper, and can adjust their desired result accordingly.
The majority of deputies who require a proposed O&A use them in some degree to prepare the filed decision. For most, the primary reason for using a proposed O&A is that it allows for a decision to be completed at a much faster rate. This is not to say that proposed O&As are simply signed by a deputy in their original form. Every deputy who responded to my inquiries indicated that they often cut and paste from O&As provided by both sides of an argument to prepare a completed decision. Further, the primary use of this method is limited to the stipulations and findings of fact. Most deputies compose their own conclusions of law. Whether or not your proposed O&A is usable depends on its content, which brings us to the next item for consideration in the preparation of your O&A.
I would like to begin this section with the assumption that the party submitting arguments to the Commission is going to do so through the use of both contentions and proposed O&As. Each format lends itself to specific components that make up a deputy's total review of a case.
As stated earlier, the contentions are the preferred place to provide a deputy with the legal application of your facts to the existing law. It is also the best place to argue a new application of law or to attempt to limit the application of a case to specific facts. Therefore, there are a few items which must be contained in the text of your contentions. First, a recitation of the procedural history of the case and its current posture is helpful. It should not be assumed that the deputy has documentation of all the prior orders and motions which have been filed in a claim, and providing a complete history may have an effect on the outcome of the current issues before the deputy. This is also a good opportunity to list all the depositions that have been taken in order that the deputy can make sure all transcripts have been received.
Next, a detailed review of the evidence presented in the case is helpful. Some do this chronologically, and some provide the information by reviewing the testimony of each witness in the order it was presented. Either method is acceptable to most deputies, so long as the facts are adequately presented. There is a natural tendency on the part of counsel to limit their review of the facts to those that are more helpful in supporting their arguments, excluding those which may support an alternative outcome. While this may make sense in the context of an adversarial posture, it can ultimately do more harm than good. Many of the deputies have made a point of stating that leaving out facts, skewing facts or adding facts that are not supported by the evidence cause them to question the veracity of the writer and discount much of what might otherwise be a position worthy of consideration. If the record contains facts which are contrary to your position, rather than exclude them the better technique is to state those facts, then demonstrate why they are inconsequential or irrelevant to the outcome you desire. If your view of the facts is interpretive, you should say so. Making a blanket statement of fact which, upon review of the evidence by the deputy is not as clear as you have indicated, can cast shadows of doubt on all of your facts. This is especially true in the case of interpreting medical deposition testimony. State the testimony as it appears, then give your interpretation of its meaning. The deputy may or may not agree with you, but your view is much more likely to be considered.
The worst thing you can do is to state facts which are not contained in the record. This is not to accuse anyone of making up facts, but there are certainly instances where you as counsel are privy to information which was not provided in the context of admissible evidence. It may be that you are including facts which you know to be true but are not supported by the record. Check your facts against the information in the record. The best way to ensure that your facts are supported is to provide page references in the record which support your version. Of course, this necessitates that you have provided a paginated record for the deputy to review. This is one of those universal desires I referenced earlier. Every deputy finds great value in having a clearly indexed and paginated record. Not only does it speed up the process by limiting the need for the deputy to comb through volumes of medical records and employment documents, it demonstrates a confidence on the part of the author in their version of the facts.
In determining what facts to include, it is important to keep in mind the necessity of providing sufficient information to allow the deputy to award the relief you are seeking. If you are looking for periods of disability compensation, you must include in your facts the dates during which the employee was out of work due to the compensable injury. If you are seeking partial disability compensation, the wages earned upon the employee’s return to work must be stated or § 97-30 cannot be applied. If there is a permanent partial disability issue, the current medical status and rating are necessary. You get the idea.
Once a summary of the facts has been completed, the next step is to present your arguments. Each argument should be presented separately, with a heading that allows an easy return to that portion of your contentions as the decision process progresses. There does not seem to be a real preference among the deputies for an order to your arguments (for example, best to worst, hardest to easiest, longest to shortest), except where logic dictates (a jurisdictional issue before a compensability issue before causation before disability).
In the same vein as providing page references relating to the evidentiary record, nearly every deputy I spoke to discussed the value of reliable case citations. While this may apply to cases relied upon in the conclusions of law section of the proposed O&A, it is primarily going to arise in contentions. If you are relying on a case to provide an application of law to your facts, it should be cited. This is especially important if you are attempting to argue an undeveloped area of the law, or relying on past application of law to a set of facts that are similar to your own. The more difficult it is for a deputy to find legal support for your position, the less likely it is that you will prevail; thus, the value of accurate citations to point the way. As a side note, none of the deputies I spoke to believes it is necessary to provide pin cites to exact pages within cited cases, but it can’t hurt to include them if you have them.
As for the content of arguments, the consensus appears to be that arguments should be concise, to the point and supported by evidence in the record and pertinent case law. The writer should be careful not to repeat arguments. Be specific and move on. Using succinct headings for each argument may help prevent repetition. It is also important to make certain that you have provided an argument on every point upon which you wish to be heard. For instance, I have reviewed several claims where an issue regarding the average weekly wage is clearly evident, but no one has spoken on the subject in their contentions. They merely announce an average weekly wage in their award section of the O&A. This provides no direction for the deputy which is frustrating for him or her, and ensures that any supporting argument you may have had for your position is lost which will certainly be frustrating for you. Again, topic headlines provide an easy way to check that all your arguments have been addressed.
There is no set length for contentions, but again brevity is nearly always appreciated. So long as you are careful to present your arguments succinctly and avoid unnecessary repetition, the length should take care of itself.
Once arguments have been completed, a conclusory paragraph is all that remains to complete your contentions. Too often the conclusions offered are limited to something on the order of “For these reasons, you should find in favor of the plaintiff/defendants.” This leaves a great deal for the deputy to guess, and does not guarantee any result you may be seeking. It is important that you take the time to specifically ask for the relief you seek. Use the facts you have provided to ask for the exact dates for which disability benefits are sought. Use actual wage figures and ask for the exact amount of permanent partial disability you believe the plaintiff is entitled. If you are seeking a credit for amounts paid in short term disability compensation, give the deputy the amount in question. The more specific the requests for relief in your conclusions, the more likely you are to obtain them upon a favorable decision by the deputy commissioner.
Opinion and Awards:
Assuming that you have completed your contentions, transferring that information into a proposed O&A should be relatively simple. Most of the deputies prefer that your statement of facts begin with the plaintiff’s biographical information (including pre-existing injuries or conditions relevant to the current claim) followed by relevant work history leading up to the date of injury. It is important to adequately describe the work duties of the plaintiff with enough detail to permit the reader to understand the relationship between the injury and the job. The job description also comes into play in issues of return to work, suitable employment, medical restrictions, etc.
Obviously, findings pertinent to the injury and resulting disability are necessary. Be certain to include enough detail to allow for a conclusion that the injury arose out of and in the course of the plaintiff’s employment.
From this point, my personal preference (and that of a majority of the deputies) is that the O&A proceed chronologically. If some medical treatment was received, followed by a trial return to work, followed by additional treatment, then some Industrial Commission participation and resulting interim orders followed by more medical treatment, that is the order I want to see in the findings. Reciting all the medical treatment then jumping back in time to discuss work issues, followed by a listing of motions and orders is confusing and difficult to follow.
When discussing the medical evidence, it is important to go into sufficient detail to determine the chronological order of the doctors who provided treatment as well as the progression of treatment. When the findings regarding the medical evidence are complete, the opinion evidence, both lay and expert, necessary to established causation, increased risk, lack of credibility, etc., should be addressed.
There are mixed opinions among the deputies regarding whether or not opinions contrary to your position need to be included in the proposed O&A. My opinion is that generally they do not. As discussed above, I do believe it is important to include alternate positions in your contentions and dismiss them as best you can; however, when I am writing an O&A, my main criteria is to make certain that the findings support my conclusions of law. Entering findings that do not offer support has a tendency to muddy the waters and undermine the position I have chosen to take. The only time I include findings contrary to my position is in order to clearly indicate that the opinion is being given little or no weight.
The section containing conclusions of law gives the writer an opportunity to concisely relate the legal basis for the award being sought. Again, when concluding that a party is entitled to relief, it is important that the relief be specific as to dates and amounts and that the conclusion is supported by the information contained in the findings of fact. If you want the deputy to impose an award, the parameters of the award must be discernable.
Just a quick note regarding the practice of adding attachments to the contentions or proposed O&As. If you are including statutory references or specific pages from a deposition that are pertinent to your argument, there is no problem. Difficulties arise when the proffered attachment contains evidence that is not already part of the record. While post-hearing correspondence or medical documents may be pertinent, the deputy cannot be certain that opposing counsel has seen or agreed to the presentation of this additional evidence. The best way to submit post-hearing evidence is to do so by motion, giving opposing counsel the opportunity to object to its admission. Otherwise, leave it out.
Upon completion of the contentions and proposed O&A, the only remaining question is how to present them to the deputy commissioner. Many of the deputies now request that contentions and O&As be sent by e-mail so they are easily transferred into a computer file. You should remember that the Commission uses Word as a format, so it does not do anyone much good to send it in any other version. If e-mail is not a possibility, some of the deputies will accept the documents on disc. My personal preference is to receive a hard copy. If I get something electronically I am going to have to print it out anyway, and the budget being what it is, paper is like gold and we’d rather use yours instead of ours. In any event, be aware that this is an area of personal preference that is best determined by asking the individual deputy.
In conclusion, it should be recognized that while I made an effort to obtain input from the other deputies, the majority of the opinions expressed in this article are mine and I do not propose to speak for others with far greater experience. I hope the suggestions have been helpful and I apologize to any and all deputy commissioners in the event that I have failed to adequately document their concerns or mischaracterized their particular views.
As always, the members of the Commission remain at your service and look forward to the opportunity to assist the practicing bar in the workers’ compensation process.
This paper discusses preparing contentions and a proposed
opinion and award within the context of practice before the North Carolina
Industrial Commission. The discussion that follows reflects the opinions of the
author only. The author's opinions do not have weight as legal authority or
practice in specific cases before the Industrial Commission and specifically may
not represent the ultimate practice before any Deputy Commissioner of the
This paper is being published only as a reference point for information and reflects the commitment of the Industrial Commission to the discussion of the law relative to its quasi-judicial function.