The Independent Expert Examination

Good claims management in personal injury cases often begins with a high quality, expert independent examination.

To ensure balance with the needs of the insured person and claims closure, it is critical to obtain clarity on the issues in each specific case. This should include issues pertaining to the insured person’s injuries and impairments, outstanding questions around medical/rehabilitation and disability issues and sound recommendations to assist the claimant in reaching their pre-accident state or maximum improvement. The quality of the independent expert examination and the impartiality of the expert assessor will help mitigate the potential for further costly dispute resolution.

Once, it was a prevailing presumption that an independent examiner merely had to be a medical/health care practitioner with an active licence to practice. The idea was that this would suffice to meet the needs of the insurer and their clients. This is no longer the case.

The performance of an independent expert examination is becoming more recognized as a specialty unto itself, with requirements of expert examiners to have specialized knowledge of the rules of civil procedures, legal and arbitration decisions, legal principles such as “thin skull” and “crumbling skull” theories, certification in impairment rating, and additional training within their fields of practice. Referral sources, courts and arbitrators are also increasingly recognizing the importance of independent expert evaluators with an active patient base.

The quality of the independent expert examination begins with the information provided to the independent evaluator from the referral source. This establishes a baseline for the information to be utilized. This baseline can be expanded once the evaluation occurs through the history taking and information obtained directly from the insured person. The independent expert evaluator should be adequately trained to understand the importance of the history taking in the independent evaluation process, This differs from a typical history directed strictly at diagnosis and treatment goals. Evaluators should understand they also have a larger role in obtaining a clearer understanding on causality issues, and how pre-morbid factors may or may not contribute to the clinical presentation, or delay the recovery process. Therefore, the history taking will typically begin with open ended questions, and graduate to more specific and directed queries.

Once appropriate written consent has been obtained from the insured, the evaluation can proceed. It can be broadly divided into observation and clinical examination, with the clinical examination further divided into the history taking and physical examination. Cumulatively, the information garnered will assist the independent evaluator in fulfilling their mandate – such as impairment rating, determination of causality or contributing pre-existing factors, need for and/or specifics of treatment, or residual ability to work. Common aspects of observation will include general appearance, first impression, and thought and behaviour patterns demonstrated during the evaluation process.

The history taking will seek information about general background issues, pre-existing health status, history of present illness/complaints, diagnostic investigation results, response to interventions, pre-morbid conditions/past medical history, intervening events, chief complaints, medications, family health history, systems review, psychosocial history, and functional inquiry. The history taking far exceeds typical interview questions for clinical purposes, as the mandate of the assessment will also include legal and causal issues.

History taking is critical in the subsequent formulation of an accounting of the health claim. It will provide details regarding whether the person’s pre-existing health status is a contributing factor to the accident and/or personal injury. History taking can also determine whether the accident has materially contributed to the injury, whether the person has participated in medical and rehabilitation interventions to minimize their loss. Qualified assessors should also be able to know if there is a need for causal apportionment with other injurious events.

This will set the stage for the physical examination, which will help to validate the information obtained in the history taking or direct the evaluator to a different conclusion. Required components of the physical examination include inspection/posture, ranges of motion, neurological examination (including mental status screen and comment on mood and affect, language and speech), joint stability and laxity, and palpation findings. Comments on identified barriers to recovery should also be provided.

The narrative report from the independent examination is much more than a recitation of clinical information and recommendations. It is critical to provide a synthesis of the data and information, and an explanation of the thought process which led to the conclusions. This is key to the defensibility of the report and assessment. The narrative report is central to the purpose of the independent evaluation, and the relevant elements of the claim.

The information synthesis and reasoning of the expert evaluator is also important to minimize bias. Incomplete and/or inappropriate interpretation of data can lead to resulting inaccurate conclusions. Notwithstanding the best, or worst, intentions of some evaluators, bias occurs when they omit, distort, or preferentially use some data to support their conclusions. Perceived bias can be minimized by using a health care professional with similar educational background as those providing care to an insured person.

The phenomenon of the “hired gun” evaluator will not serve to achieve any of the benchmarks outlined above. The quality of the assessment will be enhanced by employing a professional peer who possesses a higher level of training and experience. While a report will rarely be perceived as neutral by all parties, the process of choosing the expert evaluator can help ensure the best evaluation possible. The expert evaluator should have the requisite skill set to provide a quality assessment and report. The adherence to professional standards and guidelines will also assist in ensuring greater accountability. Most regulatory colleges for health care practitioners do not have adequate quality standards for this purpose.

While the independent examination process may be perceived as naturally adversarial, the quality of the assessment and report must be able to stand on its own merits. Sound, thorough and complete reasoning should allow the report to be defensible in terms of factual arguments and conclusions.

This will serve the ultimate purpose of providing clarity surrounding claims issues. The expertise required to perform a high quality independent examination is dependent on specialized training received by the expert evaluator. This training exceeds the skill set of most health care providers, in part because greater administrative and legal issues must be taken into account.