The Role of the Occupational Therapist in Personal Injury Litigation – Part 2

by Lorian Kennedy

This article first appeared in the winter 1997 issue of the Expert Witness.

In Part I the basic education and role of an occupational therapist and a basic assessment were discussed. This article outlines the specific value of an expert occupational therapist in a litigation setting and when costing future care needs. It explains how this role differs from other experts.

The occupational therapist understands medical conditions and can explain the impact of impairments in terms that are relevant to the individual case and day to day performance abilities. For example, how would loss of sensation in a hand impact employment if motor functions such as muscle strength and coordination have been preserved? A hairdresser, for example, would be able to use her hands only when she could see them directly. She would not be able to sense temperature, wetness, texture, bulk, etc. When her fingers were covered by her client’s hair she would not be able to tell where they were. She would not be able to feel inside a container to pull out hair clips, etc. Her speed and dexterity would be affected. She would be at higher risk of burning herself or her clients on curling irons. An established hairdresser might be able to compensate by focusing on other aspects of the hairdressing business such as administration. A starting hairdresser would be well advised to change careers to one with less emphasis on manual skills. For a typist this type of impairment would significantly reduce typing speed. In terms of housekeeping, more spills or errors and reduced efficiency would be expected.

Various methods of valuation of household services, such as opportunity costs or market replacement costs, have been discussed in past issues of this newsletter (The Expert Witness, Winter 1996). But these methods must rely on an estimate of what capacity the individual had prior to the injury and what loss has occurred. The plaintiff’s statements alone may not provide sufficient evidence to substantiate their claims. In Acheson v. Dory (1993) 8 Alta. L.R. (3d), at 128, Justice Picard cited factors to consider in loss of housekeeping awards: “specific tasks the plaintiff can and cannot do; the plaintiff’s pre-accident standards of housekeeping; modifications the plaintiff can make to achieve that standard; and the number of hours worked before the accident.” Later, in McLaren v. Schwalbe (1994) 16 Alta. L.R. (3d), at 108, she explained the importance of tendering evidence of “lifestyle, duties and responsibilities, standards, nature of the family unit, and perhaps the plaintiff’s goals.” These are the kind of issues addressed in an occupational therapy assessment. It includes detailed information specific to the individual and their impairments, the role they play in the family, the additional roles they may have caring for extended family, the adaptations they have already made, and additional adaptations or modifications that may be possible. This information is considered in the light of the individual’s performance on functional tests and takes into account pain, fatigue and emotional status. Following this assessment the occupational therapist provides an expert opinion on the number of hours of replacement services or other type of modifications or equipment that would be required to restore the plaintiff to their pre-injury status or as close to it as possible.

The sincerity of effort of the client is always a concern and many attempts have been made to quantify this, sometimes with simplistic methods, such as calculations of coefficients of variation of repetitive strength measures. In their study entitled, “Determining claimant effort & maximum voluntary effort testing: A discussion paper” (Work Function Unit, McMaster University, 1996), Strong and Westmorland, found that these methods, particularly those that rely mainly on physical testing, are founded on weak theoretical arguments and lack scientific reliability and validity. A combination of assessments using information from many domains such as medical reports, history, self report, functional testing, work site evaluation, etc. has been recommended rather than physical testing alone. The occupational therapy evaluation has the advantage of a lengthy period of time spent with the individual with a variety of test types and settings.

Distinguishing features of the occupational therapist

There is sometimes confusion about which experts are the most appropriate. There is no single answer as each case may require different expertise or in many cases a combination of experts.

At one time the physician was relied on to answer all questions regarding an individual’s ability to work. The physician is often still placed in this role and asked to comment on an individual’s work limitations or the match between the individual and their work. However physicians have rarely been educated in job analysis and usually have to base their opinions on brief office visits and medical tests rather than functional capacity testing. The Canadian Medical Association in a recent journal article, “CMA Policy Summary: The physician’s role in helping patents return to work after an illness or injury” (Canadian Medical Journal, 1997, 680) encourages physicians to refer their more complex patients for a comprehensive, objective assessment of functional capabilities, limitations and their relation to the demands of the patients’ jobs.

A vocational evaluator or counsellor usually does testing which relies heavily on pencil and paper test batteries and limited physical evaluation. These tests gather information on aptitudes and interests, and educational levels. This expert can provide market research and may assist with job placement. A computerized search can create a list of jobs which match an individual’s scores. However the lack of detailed information regarding physical capacity or psychosocial barriers can limit the value of the results. It is often an advantage to have an occupational therapist evaluate the individual first so that the vocational evaluator can incorporate the additional information into their analysis, ruling out jobs which are beyond the individual’s limits.

Similarly, standardized psychological tests include only minimal light physical demand components, but can provide detailed assessment of cognitive components. This type of assessment is particularly important where there is a possibility of brain injury or where depression may be a factor. On the other hand, the occupational therapist has the opportunity of being able to see the client perform in the “real” world and in some situations can try out various approaches in those settings.

Physical therapists have generally focused their attention on the physical components of assessment and on the various modalities of treatment. While measures of strength, range of movement, etc. are important they have limited usefulness to the court unless the impact on the individual’s ability to perform functional tasks or complex roles is made clear. Physical testing alone is not sufficient to answer the complex questions regarding a person’s ability to be productive or to pursue their goals.

Home economists have also played a role, particularly regarding loss of capacity to provide household services. Their input is valuable in terms of costing methodologies and comparisons of the individual to statistical data. However, occupational therapists are able to analyze task performance, to suggest modifications in light of medical conditions and/or impairments and to comment on functional capacity.

Other individuals such as nurses or people dealing with specific disability groups may also have developed expertise in costing, but have varying expertise in terms of evaluation.

Cases meriting referral to an occupational therapist

An occupational therapist’s background allows them to work with a wide range of clients, however individual therapists have often developed specialized areas of expertise. The OT expert will discuss a referral, at no charge, to determine if it would be appropriate to their expertise.

In the area of personal injury litigation the occupational therapist is usually involved once the individual’s recovery has reached a plateau. However occupational therapists can also provide a valuable role in case management, problem solving and treatment at earlier stages with improved outcomes and reduced delay before return to work or other resolution. Lack of funding for these services has been the major barrier to this role. Occupational therapists could also be of great assistance in cases of wrongful death to clarify the roles the individual played and to provide an opinion on the impact of their absence. To date they have rarely been used in this capacity.

If engaging occupational therapists, new to the role of personal injury litigation, lawyers must ensure that they understand the litigation environment. Assessments and reports that are performed for rehabilitation purposes tend to focus on assets and downplay impairments in keeping with a rehabilitation philosophy. However, in a litigation situation equal attention must be given to both assets and limitations. The future must be viewed based on what is likely and not necessarily what is hoped for. Adequate consideration must be given to the possibility of a less than optimal scenario.

Cost of the Evaluation

Each case must be considered individually and the assessment will vary depending on the complexity and the type of assessment necessary. A typical assessment of the type described below ranges from $1,600 to over $2,000.

Case Study

Mrs. X, 67 year old woman, was a pedestrian hit by a car two years previously. She fractured her left forearm and injured her right knee and back. The injury to her knee resolved but her arm healed with permanent angulation and loss of range of motion. Mrs. X complained of weakness, pain and loss of function in the left hand. Her pre-existing medical conditions included osteoarthritis of her knees and hips with surgery on her right knee with a good result. Right hip replacement surgery was planned in the near future to relieve pain from her osteoarthritic hip. No other treatment was planned.

A review of the background material and a detailed interview in her home revealed that Mrs. X was a homemaker at the time of her injury and lived with her husband. Prior to her injury she baby-sat her grandchildren approximately three hours a week. She knitted projects such as bedspreads. She had mobility difficulties related to her hip and her sleep was disturbed by hip pain.

Subsequent to her injury she was unable to set her hair in rollers, or cut her nails on one hand. She had difficulty bending and doing up her shoes. She had difficulty manipulating objects to do her usual cooking, or lifting, and she had relinquished most of the household chores because of a combination of hip pain and decreased hand function. She could no longer do any knitting or baby-sit her grandchildren. She was frustrated, angry and depressed with her pain and disability.

The laboratory assessment had to be adjusted for her age, hypertension and painful right hip. Evaluation of maximal lifting strength was not deemed appropriate. Comparison of left and right arms revealed limitations in speed, sensation and range of movement in her left shoulder, wrist and hand. Her ability to manipulate objects with her hands was observed in a variety of functional activities (such as picking up small items from the table, peeling potatoes, slicing, wringing out a cloth, and pouring from a pot). Evaluation of her ability to carry a ten pound bag (simulated groceries) revealed marked weakness on the left and pain. Grip and pinch strength testing also revealed marked weakness on the left. She indicated that she had no pain at the beginning of the testing session but pain in her left wrist when exerting force.

The occupational therapist was able to comment on Mrs. X’s functional limitations separating to some degree those impairments related to her hand from her other pre-existing complaints and noting their combined impact.

In the opinion of the occupational therapist Mrs. X was found to be consistent in her complaints and reports with marked impairment to her left hand function. No improvement in her hand impairment was anticipated but it was suggested that she could learn some helpful adaptive techniques. Some of her functional limitations were caused by her hip pain which contributed to her frustration and depression but a significant amount related to her left arm. She was less able to compensate for hip dysfunction by using her arms to work from a seated position. Her hip pain would hopefully be relieved by surgery but she would have to cope with ongoing loss of left hand function and pain. Decreased use of her left arm predisposed her to further loss of shoulder range and because of her lack of sensation in the left hand she was also at greater risk of injuring herself. Her ability to live alone in the future should she be faced with this eventuality was compromised.

Costs of future care were based on the combination of her hip and hand limitations. Costs included the following: adapted equipment ( specialized cutting board, non-slip matting to stabilize items while she manipulated them, a jar opener, grab bars, tub seat, hand shower); four hours of occupational therapy treatment at $75 per hour; weekly hairdressing services for hair care she used to do herself at $14 per week; bimonthly hair coloring at $35 minus the $6 for home purchased colouring; ten hours per week assistance with homemaking, food preparation and cleaning at $13 per hour; seasonal cleaning of eight hours at $16 per hour; five hours per week for five months per year for her share of gardening at $8 per hour; 0.5 hours per week for five months for her share of snow clearing at $8 per hour; and three hours of childcare per week for 48 weeks for five years at $8 per hour.


Lorian Kennedy has an M.Sc. degree from the University of Alberta, is a registered occupational therapist and the principal of Lorian Kennedy Consulting. She is an adjunct assistant professor in the Occupational Therapy Departments of the University of Alberta.