Occupational therapists can also act as expert witnesses in court


Like the doctor (seated, left) in this courtroom sketch of the trial of a mass shooter in the United States, OTs can also act as an expert witness in their field during court cases assessing third-party insurance claims. — Kevin Richardson/The Baltimore Sun

There are two professionals you want on your side if you are ever so unfortunate as to be involved in an accident that requires you to go to court to get your rightful compensation.

One of them is a lawyer, and the other is an occupational therapist (OT).

The World Federation of Occupational Therapy (WFOT) has defined occupational therapy as “a client-centred health profession concerned with promoting health and well-being through occupation”.

Founded in June 1951 at a gathering of 28 OTs from different nations in England, the organisation currently connects 105 member organisations around the world.

According to the WFOT, as of last year (2020), there was a total of 1,892 OTs in Malaysia.

However, it is still an uncommon profession that is unknown to many, and even many lawyers are unaware of the role an OT can play in third-party accident claims.

The primary objective of an OT is to assist injured clients in performing activities of daily living (ADLs) by promoting their ability to participate in the occupation they want to, need to or are expected to do, by modifying either the occupation or the environment the client is in.

According to the WFOT, “occupations refer to the everyday activities that people do as individuals, in families and with communities to occupy time and bring meaning and purpose to life”.

An OT focuses mainly on their clients’ recovery to independent function in ADLs by encouraging them in maximising their functional outcomes following their injury.

Evidence-based recommendations are always utilised as they have been shown to be the most effective care available.

In addition, evidence-based reports can be used to refute any arguments and help OTs make the best decisions for their clients.

The utmost important aim for an OT is to ensure that their clients’ prioritised goals are achieved in the process of their rehabilitation.

‘Yes, your honour’

OTs also play a vital role in assisting lawyers who litigate accident matters as expert witnesses for third-party claims.

A third-party claim is basically a claim made by an injured third party (as a third-party beneficiary of workers’ compensation insurance) against an insurer or insured for indemnification.

The rationale of the claim is generally focused on the loss of independence or personal injuries.

The former refers to when a person is unable to continue with their ADLs without the help of another person, including going to the toilet, having a bath, and making or preparing food.

OTs are able to act as expert witnesses by evaluating the client and providing testimony, as well as standardised assessment reports, explicitly looking at their functional outcomes.

Factors that are taken into account while preparing these standardised assessment reports are pain, loss of comfort and loss of future earnings.

All these factors fall under an umbrella term referred to as “damages”.

OTs play a crucial role in contributing to the specific needs and requirements for the standardised assessments as stipulated in go- vernment legislation and the court.

They are specialists in evaluating the degree of independence and functional outcome of the client in participating in ADLs, as well as home accessibility, work and many other aspects of occupations.

It should be noted that the role of an OT is to determine the individual’s ability or capacity to function, not their desire to earn or continue working.

Let’s say for example that a person was involved in an accident and sustained a spinal cord injury that has left him paralysed below the waist.

It is clear from the medical evaluation that he will be very dependent on others for survival as he will be unable to work due to his condition after the accident.

An OT may be called upon as an expert and impartial witness to testify by providing a standardised assessment report based on their observation, physical examination and psychosocial evaluation of the injured man to help the court determine the amount of damage incurred, and thus, how much he should be awarded or compensated.

As expert witnesses can be cross-examined on their findings and perspectives during the trial, OTs who act as such witnesses should be well-prepared in having complete, credible and impartial information relevant to the case.

In fact, OTs in Malaysia can consider specialising in the medico-legal field as an alternate career path.

Helping with changes

In addition, occupational therapy is in a position to recognise the changes that are occurring in how people undertake their occupations as a result of the Covid-19 pandemic.

These include accessing resour-ces, ADLs, communication, mobility, social isolation, displacement, mental health and well-being, as well as many other aspects of occupations.

Therefore, OTs can also work with the public to develop strategies to facilitate continued access to their occupations by conducting virtual awareness campaigns and telerehabilitation services.

In conclusion, OTs promote health and well-being, which enhances the occupational performance of clients through rehabilitation and consultation, which has a positive impact on the clients’ overall quality of life.

Dhashmini Thangavelu is a tutor and Professor Nathan Vytialingam, the dean, of the Perdana University School of Occupational Therapy. This article is courtesy of Perdana University, which is celebrating their 10th anniversary this year. For more information, email starhealth@thestar.com.my. The information provided is for educational and communication purposes only and it should not be construed as personal medical advice. Information published in this article is not intended to replace, supplant or augment a consultation with a health professional regarding the reader’s own medical care. The Star disclaims all responsibility for any losses, damage to property or personal injury suffered directly or indirectly from reliance on such information.

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