Chapter 12: Independent Medical Assistance or Advice (IHP Process)
- 12.1 General
- 12.2 Who May Serve
- 12.2.1 Remuneration
- 12.2.2 Form of IHP
- 12.2.3 Exclusions
- 12.3 Terms of Reference
- 12.4 Suspension Pending Health Professional’s Report
- 12.5 Medical Examination
- 12.6 Written Report
- 12.7 Decision
- 12.8 Other Medical Advice or Clarification
12.1 General
If a panel determines that independent medical assistance or advice would assist in reaching a decision, the panel may seek that assistance or advice from one or more health professionals.
An employer, worker or a dependant of a deceased worker who is a party to an appeal may request in writing that WCAT retain a health professional to provide independent assistance or advice in the appeal [s. 302(1.2)]. If such a written request is made, the worker’s medical condition is in dispute in the appeal, and the presiding member of the panel determines that the independent assistance or advice would assist in reaching a decision, WCAT must retain a health professional to obtain assistance or advice. A request that WCAT retain a health professional should be made at the earliest practicable time.
12.2 Who May Serve
“Health professional” means a medical practitioner, a person entitled to practice medicine under the laws of another jurisdiction or any other person with prescribed qualifications [s. 277(1)].
Health professionals include [s. 315(d), s. 5 Appeal Regulation]:
- a person who is registered as a member of the College of Oral Health Professionals of British Columbia (formerly the College of Dental Surgeons);
- a person who is entitled to practice dentistry under the laws of another province,
- a person who is registered as a member of the College of Psychologists of British Columbia established under the Health Professions Act,
- a person who is entitled to practice as a psychologist under the laws of another province.
The list of health professionals must be established by the chair [s. 301(1)]. The list cannot include any person employed by the Board [s. 301(2)].
A panel seeking assistance from a health professional, whether on its own initiative or as the result of a written request from a party to the appeal, may retain one or more health professionals from the list of independent health professionals established by the chair. If there is no suitable health professional, as determined by the panel, available from the list established by the chair, the panel may retain a health professional who is not on the list and who meets the requirements in s. 301 of the Act.
12.2.1 Remuneration
The chair may determine the terms and conditions, including remuneration and reimbursement of expenses, under which a health professional may be retained under section 249. In so doing, the chair will take into account any fee schedule established by the Board for services provided by health professionals [s. 301(3)].
12.2.2 Form of IHP
The panel may seek independent medical assistance or advice from one or more health professionals, whether individually or as a panel of health professionals, from the same or different medical specialties. The panel will determine the applicable medical specialty and choose the health professional from the list established by the chair. Where different specialties are used, the advice may be requested concurrently or sequentially.
12.2.3 Exclusions
Health professionals will normally be disqualified from providing assistance or advice if they [s. 302(8)(a) to (f)]:
- have previously examined the worker whose claim is the subject of the appeal;
- are treating or have previously treated the worker;
- have been consulted in the treatment of the worker;
- have acted as a consultant to the employer;
- are a partner of or practice with a health professional described in this subsection; or,
- are otherwise in circumstances that could result in a reasonable apprehension of bias.
With the written consent of the parties, the panel may seek assistance or advice from a health professional who would otherwise be disqualified on these grounds. WCAT will generally avoid retaining a health professional who falls within the terms of these exclusions.
12.3 Terms of Reference
The panel must set the terms of reference for the health professional, including [s. 302(2)]:
- requiring a written report;
- setting any time periods for providing the report; and
- specifying any questions to be answered in the report.
The terms of reference the panel provides for the health professional will include determinations of non-medical facts. These will generally involve concise factual details of the incident or accident giving rise to a claim for personal injury, or factual details with respect to the nature of the worker’s employment activities and exposure(s) giving rise to a claim for occupational disease. They may also include any other facts relevant to the independent health professional’s medical opinion, such as incidents, accidents, activities or exposures outside the worker’s employment.
The terms of reference the panel provides will also include information required for the health professional’s review. This may include parts of the claim file(s), appeal documents, WCAT-requested medical records, or audio/video evidence.
12.4 Suspension Pending Health Professional’s Report
WCAT will suspend an appeal from the time the panel provides the registrar’s office with the completed terms of reference until WCAT receives the health professional’s written report [s. 302(7)].
12.5 Medical Examination
For a health professional to provide independent assistance or advice under section 249, a medical examination is not required.
If the health professional considers it necessary to examine the worker in order to provide the assistance or advice, WCAT will give written notice to the worker to attend for an examination [s. 302(3)]. Where a medical examination is conducted, the health professional may determine the form and nature of the examination.
12.5.1 Expenses for Medical Examination
Where a worker is required to travel to attend an examination by the independent health professional, WCAT will direct the Board to pay for the necessary arrangements for travel and accommodation. WCAT will also direct the Board to reimburse the worker’s expenses for attending the examination according to their criteria (see item 100.14 of the Rehabilitation Services and Claims Manual, Volumes I and II (RSCM)). Such expenses may include lost time from work, and child care.
12.5.2 Failure to Attend or Obstruction of the Examination
RULE: Pursuant to section 14(c) of the ATA, a written notice of examination given by WCAT is an order to the worker to appear at the time and place stipulated.
If a worker fails to attend the examination, or obstructs that examination without reasonable cause, the health professional will return the matter to the panel for direction. The panel may, after giving notice to the worker, do one or more of the following [ss. 302(4) and 297(5) WCA, s. 31(1)(e) ATA ]:
- direct the health professional to reschedule the examination of the worker and give the worker notice of the rescheduled examination;
- direct the health professional to provide a report without examining the worker;
- decide the appeal on the available evidence;
- determine that the worker has abandoned the appeal;
- dismiss the appeal.
12.6 Written Report
A health professional retained to provide independent medical assistance or advice under section 302 must provide the panel with a written report consistent with the terms of reference. WCAT will disclose the report to the parties together with the terms of reference as well as all information provided to the health professional and invite submissions [s. 302(5) and (11)].
The duty of a health professional retained under section 302 is to assist the tribunal and is not to be an advocate for any party.
The panel may seek clarification of the report from the health professional without advance notice to the parties. Where the panel seeks clarification, both the question(s) and the response(s) must also be provided in writing and will be disclosed to the parties for submissions. Generally, the process in 13.2 will apply.
12.7 Decision
After receiving the health professional’s written report, WCAT will reactivate the appeal and request submissions from the parties. The panel will then decide the appeal. The panel is not bound by the report of the health professional.
12.8 Other Medical Advice or Clarification
The statutory authority for seeking independent medical assistance or advice under section 302 does not prevent a panel from asking other health professionals for medical evidence or to clarify or interpret medical evidence the health professional previously provided. That evidence or clarification may be requested, for example, from a treating physician or a physician who is not on the list established by the chair under section 301(1) [s. 302(9) and 302(10)].
Rule: Normally, a panel will only ask a physician employed by the Board to clarify or interpret medical evidence they have previously provided.