The Star Malaysia

The OT’S testimony

Occupation­al therapists can act as expert witnesses to help determine damages when it comes to third-party personal injury claims.

- By DHASHMINI THANGAVELU and Prof NATHAN VYTIALINGA­M

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 clientcent­red 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, 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 government 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 medicolega­l 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 resources, 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.

 ??  ?? 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
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

Newspapers in English

Newspapers from Malaysia