Navigating the 6% Cap and Expert Restrictions – 5 Tips on Maximizing Your Strategy

The recent changes in the no-fault insurance system and the introduction of the 6% cap on disbursements and the three expert rule present new challenges to many firms. Moreover, these regulations can complicate the use of expert services which are necessary for building strong cases.

Based on our experience in working with many firms, here are our recommendations for maximizing your strategy while navigating these challenges for the most effective outcomes.

1. Review. Before choosing your three experts, think about what information you need in order to decide which expert you require. By examining your file, you can establish the type of injuries your client suffered.

2. Analyze the contents of your file. Review your file for the history and development of client’s subjective complaints, overall recovery, diagnoses on file, any specialist involvement and the outcomes from their involvement, review of treatments received from allied professionals, reports of functional limitations from the client and others, work history, return to work post-injury, and any ongoing limitations.

3. Determine your needs.

• Is there a clear diagnosis of the Client's original injury,

• has the diagnosis been updated?

• Identify the gaps in diagnosis, prognosis and causation of their physical injuries

• Identify the gaps in diagnosis, prognosis and causation of underlying mental health conditions (if applicable).

• Identify how these limitations are affecting your client now and possible impact

  on their employability, and overall functioning in the future.

4. Strategize.

In our experience when choosing your three experts, consider addressing your client’s

needs from three perspectives: physical, mental and functional to ensure a complete

and multidimensional understanding of your client’s condition post injury.

Another important consideration is to organize the sequence and timing of expert

evaluations, as this can be a critical component to ensure you get the most value out of

these evaluations.

Here are our specific strategies on working around the three expert rule, that has led to favorable outcomes.

Three Expert Triad - Your Foundation for Success

Expert #1: Physical Conditions. When choosing your expert – consider an expert that

can evaluate the client’s physical condition first. Depending on your case, your expert

may be a physiatrist, orthopedic surgeon or rheumatologist.

Your expert can opine on causation, diagnosis and prognosis of the physical injuries

your client has sustained. This expert will form the foundation of your case, once you

have this information on hand, it will bring immediate clarity to your case. If the case is

straightforward, you may be able to work towards resolving your case. The one expert

may be all you need!

Expert #2: Mental Health. If, however, your client presents with symptoms of anxiety,

mood and/or chronic pain and other mental health complaints then consider having your

client evaluated by a psychiatrist or psychologist to provide an opinion on their mental

health (diagnosis, prognosis, causation and treatment recommendations).

Alternatively, if your client has sustained a head injury, you may want a neurologist as the second expert, or if your client has ongoing and unresolved issues with pain, a pain specialist may be your second expert of choice. Your challenge will be to ensure that the medical expert is qualified to opine on the mental health conditions of mood, anxiety, and chronic pain. For example, chronic pain (somatic symptom disorder – predominant pain) is considered a

mental health condition and is a condition in and of itself.

In our experience, mental health conditions are often under reported by clients due to stigma associated with having a mental heath condition. Moreover, many symptoms of mental health conditions are often not recognized by the client, and consequently they do not seek help, and therefore, the condition is not diagnosed and not treated. The lack of diagnosis and timely treatment can result in significant and prolonged disability, interferes with long-term recovery, employability and often results in poor quality of life.

Therefore, having the mental health condition(s) clearly identified and diagnosed is a critical component of ensuring these concerns are effectively addressed, and the hidden impact of the mental health condition becomes known, so it can be treated and quantified.

You can maximize your strategy and work around the three expert rule and this limitation

by asking your medical experts to specifically opine on underlying conditions or

comorbid conditions of depression, anxiety, and chronic pain disorders. If you do

not ask your expert to evaluate for underlying conditions, you may not get the necessary diagnoses to support your clients’ complaints and need for treatment.

To summarize your second expert can opine on causation, diagnosis and prognosis of the mental health conditions, and/or neurological condition your client has developed, most likely as a consequence of the original physical injury. This expert forms the second tier of your

foundation and strategy for maximizing the three expert rule and adhering to the 6%

cap.

Important tip:

• Before the second expert undertakes their evaluation, provide them with the first

  expert’s report that has the client’s physical injuries, diagnosis, prognosis and

  causation clearly established.

Expert #3: Function. Once you have the opinions of the two medical experts, you can

now explore the impact of these injuries on the client’s function in terms of work capacity,

housekeeping, childcare, leisure/ social and relational aspects. This is when you can call

upon an occupational therapist to opine on your client’s overall functioning. Having this

information solidifies all aspects of your case, and this forms the top tier of your

strategy for maximizing the three-expert rule and adhering to the 6% cap.

Depending on the complexity of the case and resulting injuries and limitations, you can

consider a one-day Functional Capacity Evaluation, or a 2-day Cognitive Functional

Capacity Evaluation or for the most complex clients who have cognitive, physical,

fatigue and psychological difficulties a 3-day PsychoEmotional Cognitive Functional

Capacity Evaluation.

These specific one day or multi-day evaluations will target the client’s ongoing physical,

cognitive, and psychoemotional limitations they are experiencing. This evaluation

will provide you with an objective opinion on their work capacity, and ability to function

on a day to-day basis.

You also have the option to include a Cost of Future Care Analysis Evaluation in the assessment package to provide a comprehensive overview of your client's work capacity, functional capacity, and future care requirements. For comprehensive details regarding these various evaluations, feel free to explore our suite of services here.

Important tip: Arrange to have your two medical experts evaluate the client before the

functional capacity evaluations. This will provide the necessary foundation for the

occupational therapist/evaluator as they rely on the medical experts for diagnosis,

prognosis and causation to support their clinical findings.

5. Success. By choosing your experts strategically to sequentially provide the physical, mental and functional aspects of your client’s injuries and limitations, you will be able to use the three-expert rule to your advantage. As a result of this strategy, you will have the necessary information to successfully address the heads of damages for loss of earnings, future care costs, pain and suffering, and loss of amenity. Having a robust and complete picture of the client’s diagnoses, prognoses, causation and overall functioning will enable them to simultaneously receive the appropriate care and treatment they may require. and it allows you to successfully resolve their case and garner optimal settlements, while adhering to the 6% cap.

Want help structuring your next case under the 6% cap and 3-expert rule?

We provide Functional Capacity Evaluations (1-day, 2-day Cognitive, and 3-day PsychoEmotional), Vocational Assessments, and Cost of Future Care Analysis — all thoughtfully tailored to meet legal standards while maximizing case value.

Contact us to book a 15-minute consultation and determine the best fit for your client’s needs.→ Contact Us