Dr Alan Home
, Occupational Physician at Health People Legal, having worked as an independent medical examiner for over thirty years, is aware that the quality of briefings to medical experts is highly variable. This paper attempts to provide practical advice to legal practitioners about the independent expert brief.
An Independent medical expert is an appropriately qualified and experienced registered medical practitioner who performs an impartial medical assessment, based on the best available evidence for the purposes of providing information to assist with claims or case management. The medical practitioner is not in a treating relationship with the examinee.
When to refer
A referral may be required when medical information is inadequate, unavailable or inconsistent. You may be unable to resolve the issues directly regarding medical causation, liability or apportionment. There may be multiple injuries or medical conditions, changing symptoms over time, prolonged recovery or confounding factors. Further, there may be unresolved disputes regarding treatment, capacity, care, impairment or prognosis.
Choosing an IME
Ultimately, it is necessary to choose an expert with appropriate expertise to resolve the dispute at hand. In a treatment dispute regarding surgery, a surgical specialist is most appropriate. In a dispute regarding work capacity, an occupational physician is required.
It is also useful to choose an independent examiner with experience in Forensic medical assessments. The IME should be independent, that is prepared to provide opinions to all referrers. Their opinions should vary on the facts. They should be able to explain their opinion to courts. They should provide timely reports, and they should be approachable.
Details of the referral
The referral should include details of who you represent.
A background paragraph orienting the expert to the circumstance of the accident or event should be provided. This may include the alleged mechanism and the claimed injured body parts.
It is also important to advise the expert what is agreed between the parties and what is not agreed or in dispute.
Most importantly, the referral letter should explicitly state the main reason behind the assessment. This will focus the experts’ assessment and ensure that the relevant issues are explored. For example, the examinee may have omitted to disclose their past history to previous examiners. This should be brought to the attention of the expert in the referral letter.
There should also be advice as to any special requirements of the examinee, including the requirement for an interpreter.
The expert should be aware of the time frame within which the report is required, particularly if there is undue urgency due to upcoming proceedings.
The referral letter should also enclose information regarding the arrangements for payment, if from a third party or client.
Accompanying Information
There should be a list of attached documents for convenience, and to enable the expert to determine if any attachments are missing.
This should include:
- Prior Medical Information, if available
- First and last WC Certificates or where major change occurs.
- Relevant hospital records.
- Employment History, Previous Duties, Vocational Assessments, Rehab summaries, RTW attempts.
- Prior claims, notes, and relevant correspondence
- Surveillance flash-drive (not just reports)
Medical chronologies may be useful to bring to the attention of the IME specific past entries of relevance. This is particularly useful in cases with voluminous notes.
However, it is also important to understand that your correspondence, including medical chronologies may be discoverable in subsequent proceedings.
There may be situations in which information is particularly sensitive or difficult to convey. It may be appropriate to discuss specific matters with the specialist over the telephone. If an expert won’t discuss the case, get another IME.
Specific questions
Causation: Questions concerning causation should be confined to determining whether it is medically plausible that a factor or injury could have caused the condition. Legal definitions of causation vary between jurisdictions. Therefore, when asking questions of experts regarding causation, it is important to bring to the attention of doctors, the relevant legislation, case law and precedents that are to be considered in that jurisdiction.
Pre-existing/ underlying conditions: These conditions are relevant to the consideration of causation, apportionment, capacity and impairment.
There should be a forensic assessment of the nature, extent, impact and treatment requirements of any pre-existing conditions.
There must be thorough questions to ensure that the IME reviews relevant previous medical records and obtains an accurate history regarding the level of premorbid symptoms, including related disability and treatment requirements. There should be a comparison made between the current and previous examination findings, if available. Consideration should also be given to relevant imaging findings. Your questions should reflect these considerations.
Similarly, questions regarding apportionment should seek clarification of the relative impact of separate events to the pathology, symptom levels, function, abilities and work capacity. Apportionment should be sought in percentage terms. Reasons should be sought from the expert as to why a particular percentage has been selected.
Consequential injuries. There must be valid reason to anticipate a ‘consequential injury’. For example, there may be:
- Malalignment caused by a fracture
- Limb shortening
- Adjacent joint disease after fusion
Claims of ‘overuse’ should be tested by inquiry regarding the levels of activity leading up to the development of symptoms.
Functional & Domestic Capacity:
This is an area in which many doctors lack experience or training. It is necessary for the expert to ask sufficiently detailed questions in the history to enable these questions to be addressed accurately. Further, it is insufficient for the expert to simply reiterate the subjective history provided by the claimant. Rather, the IME is required to use clinical judgement to specify what types of activities and chores the injured person can reasonably accomplish as a consequence of the injuries/ medical condition.
It is also necessary to consider the impact of any premorbid complaints upon the claimant’s function and capacity.
Work Capacity
Most doctors can provide an opinion regarding medical limitations. However, opinion regarding work capacity also require detailed knowledge about job requirements and consideration of the plaintiff’s education, experience, training and comorbidities. The questions should be directed to an occupational physician with relevant knowledge of the working conditions.
Alternatively, you should provide detailed advice to the expert regarding the work requirements, for example a workplace evaluation or physical job description.
Vocational assessments are best done before the IME to generate questions about work options.
Questions regarding work capacity should include:
- The extent of medical limitations – temporary/ permanent
- The capacity to work full-time/ part time/ overtime
- Capacity/ limitations regarding the pre-accident employment
- The capacity to perform specific work for which the individual has ETE
- The extent of incapacity due to subsequent deterioration.
- Limitations on the duration of the individuals working life
Dr Alan Home has extensive experience as a clinical Occupational Physician. This specialty field of medical practice includes the assessment of injuries, illness and disease and how these impact upon function, both in the workplace and in daily activities. Some of Dr Home’s key interests include the assessment & management of patients with musculoskeletal injuries, including spinal injury, fitness for work and impairment assessment. Dr Alan Home is involved in the training of approved medical specialists (impairment) in Western Australia. He is a member of the WorkCover WA Medical Committee. You can connect with Alan via LinkedIn 
