Are we using Occupational Therapists to their full potential in Medico-Legal matters?

Over the past few months, we have had some interesting conversations with law professionals about how they use Occupational Therapists in medico-legal matters.

And something genuinely surprised us. For a number of firms we spoke with, the role of the Occupational Therapist (OT) was strongly associated with one particular area: assessing and quantifying past and future care.

This is an important area of medico-legal practice, and one in which Occupational Therapists have well-established expertise. But it prompted a broader question for us:

Are we sometimes using only one part of what Occupational Therapy can contribute to a medico-legal matter?

So, we got really curious and went down a little rabbit hole of Australian research on this matter.

What we found was interesting.

This is not a new discussion.

Almost 20 years ago, Allen, Carlson, Ownsworth and Strong (2006) published Australian research specifically addressing Occupational Therapy expert opinions on work capacity for litigation, compensation and insurance purposes.

Their study involved 31 participants with direct experience relevant to OT work capacity assessment: 19 Occupational Therapists, six medical specialists and six lawyers. The researchers used their findings to develop an evidence-based framework aimed at improving the quality of OT expert opinion on work capacity, including assessment and reporting practices.

In other words, the role of Occupational Therapists in providing medico-legal opinions about work capacity was sufficiently established to be the subject of specific Australian research almost two decades ago.

The paper itself describes comprehensive OT functional capacity reporting as potentially including work-related assessment findings and opinions regarding a claimant’s current and future work capacity and job options.

Four years later, Allen, Ownsworth, Carlson and Strong (2010) examined Occupational Therapists appearing as expert witnesses on the work capacity of personal injury claimants.

Again involving 31 participants – 19 OTs, six medical specialists and six lawyers – the study explored the particular challenges Occupational Therapists faced under cross-examination and the practices important in maintaining the credibility of their work capacity evidence.

Against this sits another interesting piece of Australian research.

Arnold, Mackenzie, Millington and James (2018) examined a more traditionally recognised area of medico-legal Occupational Therapy: domestic assistance.

Their study involved 14 experienced Occupational Therapists undertaking medico-legal domestic assistance assessments in New South Wales. It explored how OTs gathered and interpreted information when determining domestic assistance needs, including interview information, functional task performance, observation, medical evidence and the claimant's environment.

Although the focus was domestic assistance rather than work capacity, the study identified a theme that runs consistently through the Australian research:

An expert opinion is only as useful as the reasoning that connects the evidence to the conclusion.

These studies examined different questions and different areas of medico-legal Occupational Therapy. But viewed together, they highlight something interesting.

There is an established Australian evidence base considering Occupational Therapists as experts in work capacity, while OT medico-legal practice is also strongly and appropriately established in the assessment of domestic function and care.

Our recent conversations with law professionals suggest the latter may simply be the more familiar application. Regardless of the focus, the real value isn't simply obtaining an OT opinion — it is obtaining a functional opinion that has been built to withstand scrutiny.

Perhaps, then, there is an opportunity to think more broadly about both the functional questions an OT may be able to answer – and what makes that evidence genuinely useful in a medico-legal matter.

From assessment to defensible expert opinion

This is where Functional Capacity Evaluation becomes particularly important. A Functional Capacity Evaluation should not simply produce a list of measurements or observations.

Used appropriately, it provides the Occupational Therapist with a structured way of examining what a person can actually demonstrate functionally, considering that performance alongside the available evidence, and determining what those findings mean in the context of work or activities of daily living. That distinction matters.

A person may report that they cannot perform a task.

They may demonstrate difficulty performing that task during assessment.

Or they may demonstrate a particular level of ability, but that ability may still be insufficient to meet the frequency, duration, repetition or broader demands of the task/activity.

These are different pieces of information. The expert's role is to make sense of them.

We know that Occupational Therapy experts need to provide opinions that are unbiased, legally useful and defensible, supported by assessment methodology that can be justified. The assessment result is not, by itself, the expert opinion. The expert opinion comes from the reasoning that follows. That pathway from evidence → interpretation → opinion is where much of the strength of medico-legal functional evidence lies.

What happens when that opinion is challenged?

The 2010 Allen et al. study looked specifically at Occupational Therapists appearing as expert witnesses on work capacity. Across the participating OTs, lawyers and medical specialists, credibility was the dominant concern.

The study identified a range of ways OT evidence may be challenged under cross-examination – including whether the therapist has stayed within their expertise, whether their conclusions are supported by the assessment, whether other evidence contradicts their findings, whether the methodology is defensible, and whether the opinion is genuinely independent.

What emerged was a fairly clear picture of strong expert evidence.

A credible OT opinion should be independent, impartial and firmly within the therapist’s area of expertise. The therapist should be able to explain the functional basis of their opinion, show how the findings relate to the matter assessed, and clearly connect the assessment evidence to the conclusions reached.

Importantly, this means going beyond simply repeating what a claimant reports. Good functional evidence considers reported history alongside observed performance, assessment findings, relevant medical and documentary information, occupational demands, and any inconsistencies between those sources.

The same theme appears in later Australian research into medico-legal OT assessments of domestic assistance: the clinical reasoning needs to be visible. The reader – and ultimately the Court – should be able to understand how and why the expert arrived at their recommendation. 

So, are we using Occupational Therapists to their full potential?

At Flexiwell Group we see time and time again when functional evidence is the missing piece of the matter.

Where the question is about what a person can actually do, whether their demonstrated capacity meets the demands of their previous occupation, or what activities of daily living capacity remains, an appropriately conducted Functional Capacity Evaluation can provide an Occupational Therapist with an important evidentiary foundation from which to form an expert opinion.

But the Australian research also tells us that the label Functional Capacity Evaluation is not what makes that opinion strong.

The strength lies in:

• appropriate expertise;

• a defensible assessment methodology;

• distinguishing reported from demonstrated function;

• considering the available evidence objectively;

• understanding the demands against which capacity is being considered;

• remaining within the expert's field;

• examining alternative interpretations; and

• clearly explaining the reasoning from findings to conclusion.

  
  

In medico-legal matters, an opinion does not become valuable simply because an expert is prepared to give it.

Its value lies in whether the evidence and reasoning underneath it are strong enough to withstand scrutiny.

And maybe that is where the broader contribution of Occupational Therapy – and Functional Capacity Evaluation in particular – deserves a little more attention.

References

Allen, S., Carlson, G., Ownsworth, T., & Strong, J. (2006). A framework for systematically improving occupational therapy expert opinions on work capacity. Australian Occupational Therapy Journal, 53, 293–301.

Allen, S., Ownsworth, T., Carlson, G., & Strong, J. (2010). Occupational therapists as expert witnesses on work capacity. Australian Occupational Therapy Journal, 57, 88–94.

Arnold, S., Mackenzie, L., Millington, M., & James, C. (2019). Occupational therapy medicolegal assessment of domestic assistance requirements: Focus group perspectives. Australian Occupational Therapy Journal, 66, 239–248.