How to Ensure Your Instructions to Experts are Asking the Right Questions

Dr Alan Home, Occupational Physician at Health People Legal, provides in this paper advice to the legal profession regarding communication with doctors, and in particular, expert medical witnesses.

In framing your referral, useful information can be imparted in the background letter to focus the experts’ assessment and to ensure that the relevant issues are explored.

The referral should impart information regarding the parties to the dispute. It is useful to the expert witness to understand what is agreed between the parties and what is not agreed or is in dispute.

There should be clear instruction regarding the main purpose for the assessment, whether that is causation, apportionment, the requirements for treatment, care needs or work capacity.

The referral letter should also enclose information regarding:

  • The time frame within which the report is required
  • The arrangements for payment
  • Whether an interpreter is required, and confirmation of any arrangements made in that respect

It is often useful to prepare a medical chronology, particularly when the medical file is very large. This reduces the likelihood that an important entry may be overlooked by the expert.

Your correspondence, including medical chronologies may be discoverable in subsequent proceedings, so use simple clear and objective language and avoid combative and subjective language or forming conclusions on the available evidence.

Relevant accompanying medical documents and reports should be included, including the following:

  • Relevant hospital records, including Initial medical documents, Discharge summary, Imaging and Operation reports.
  • Investigation reports
  • Operation reports
  • Treating specialist reports
  • Previous IME reports (even the ones you don’t like)
  • Contemporaneous patient records
  • The first and last WC Certificates or where major change occurs (not multiple documents detailing the same certification).
  • Consent to obtain information

Questions regarding causation should be framed with the understanding that it is the role of medical experts to determine that a factor (or injury) could have caused or contributed to worsening of the condition. It is the fact finder’s role to determine that the alleged factor did cause or contribute to the worsening of the condition, which is a non-medical determination.

The legal determination of causation varies between jurisdiction. Very few doctors would be aware of these (legal) definitions in their own jurisdiction of work, let alone other states. Case law is even less likely to be familiar to medical practitioners.

Therefore, when asking questions of doctors regarding causation, it is important for the solicitor to bring to the attention of doctors, the relevant legislation, case law and precedents that are to be considered in that jurisdiction.

For example, questions regarding causation in the NSW Worker’s Compensation jurisdiction should reference the definitions in Sections 4 and 9a of the WCIM Act, 1987.

There should also be adequate enquiry regarding pre-existing conditions. This should enquiry regarding the level of premorbid symptoms, including related dysfunction 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. The assessment requires a thorough forensic examination of previous medical records.

There may be grounds for apportionment to a prior or subsequent condition or injury. Probable causes are apportioned. The percentages selected should be supported by evidence and the basis explained in the report. The apportionment should be undertaken with consideration of the impact of each factor upon:

  • Pathology, Imaging
  • Pain levels
  • Function/ Activity tolerances
  • Work Capacity
  • Treatment requirements

The legislation and Guidelines for apportionment of impairment ratings also varies between jurisdictions. This is a further area in which your instructions to an expert should direct the IME to the specific requirements within that jurisdiction.  

When enquiring about work capacity, it is important to recognize that whilst most doctors can provide an opinion regarding work limitations arising from a medical condition. Decisions regarding employment options also require:

  • Detailed knowledge about job requirements
  • Consideration of the worker’s education, experience and training
  • Consideration of the worker’s comorbidities
  • Social, geographical and labour market considerations

In seeking advice in this area from an expert, there should be enquiry regarding:

  • 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/ for example, from post-traumatic degenerative change or future treatment/ surgery
  • Limitations on the duration of the individuals working life

Any useful information to assist the doctor, including the claimant’s work history, rehabilitation reports and vocational assessments should be provided.


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