Historically, personal injury claims have resulted in a lump sum payment which, especially in complex claims, could take years to process and where requests for interim payments for medical care and other needs were often resisted by compensating insurers.
The Rehabilitation Code was first introduced in 1999, and the latest version was published in 2007. Its aim is to promote the use of rehabilitation and early intervention in the claims process so that the injured person makes the best and quickest possible medical, social and psychological recovery.
The code was developed jointly between insurers and claimant solicitors. It's designed to promote co-operation amongst the stakeholders involved in the rehabilitation process and provides a framework supported by all the main associations for insurers and personal injury lawyers in the UK.
In what types of personal injury claims can rehabilitation be used?
The objectives of the code apply whatever the severity of the injury sustained, from simple fractures and psychological injuries, to catastrophic, life-changing injuries such as traumatic brain injuries and spinal cord injuries.
Even where only moderate injuries have been suffered, for example musculo-skeletal injuries such as many lower back and whiplash injuries, rehabilitation still has its place in helping the claimant gain access to appropriate therapies as quickly as possible.
Where there's an issue concerning liability for the accident, it's likely that only a complete denial of liability will prevent a defendant's insurer from considering the use rehabilitation.
What's the role of the claimant's solicitor in arranging rehabilitation?
The Rehabilitation Code requires the solicitor of a claimant to consider whether early intervention, rehabilitation or medical treatment may improve the claimant's present and/or long-term wellbeing, and to consult with the claimant, his family, and, where appropriate, his treating physician(s) in this regard, and address the need for rehabilitation at the earliest practicable stage and throughout the case.
The Code also encourages the solicitor of a claimant to consider, in conjunction with the claimant and his family, whether the claimant has an immediate need for aids, adaptations or adjustments to employment to enable him to remain in employment, whether in his existing job or in a suitable alternative job. If the claimant's solicitor is of the view that the claimant has such needs he is expected to communicate such needs to the compensators as soon as practicable.
What's the role of the compensator?
The Code encourages compensators to consider whether early intervention, rehabilitation or medical treatment is likely to benefit the claimant in the short, medium or long term. The compensator is expected to address the need for rehabilitation at the earliest practicable stage and throughout the case.
If a compensator takes the view that intervention, rehabilitation or medical treatment will be beneficial, he is expected to inform the claimant's solicitor of this as soon as is practicable.
Who should assess the claimant's rehabilitation needs?
Where the need for intervention, rehabilitation or treatment has not already been identified, the Code encourages an assessment of the claimant's needs by an appropriately qualified independent person. This should be one or more of the treating physicians/surgeons, or by an independent agency suitably qualified and experienced in such matters.
The claimant's solicitor and the compensator are encouraged to agree the identity of the person or organisation carrying out the assessment, and are expected to agree the method of providing instructions to the assessor.
Where one of the parties puts forward a suggested assessor, the other party has 21 days to object to the appointment of that assessor. If an objection is made within the 21 days, the party who suggested the assessor in question cannot insist on the assessment being carried out by that person or organisation.
How does the personal injury assessment process work?
The assessor will be asked to interview the claimant at his home (or in hospital if the claimant is still in hospital, with a subsequent visit to the claimant's home) and will be asked to produce a report.
The report should provide a preliminary background of the claimant's circumstances, including:
- the nature and extent of the injury
- any relevant medical background
- family circumstances
- immediate home adaptation needs
- steps to improve the claimant's quality of life and support for family carers
- how, and at what cost, recommendations can be implemented
In simple cases, the assessment may be carried out by the assessor conducting a telephone interview with the claimant.
Generally, the assessment will take place within 14 days of the referral to the assessor.
The report should be sent to both parties simultaneously. They then have the opportunity to ask the assessor questions about the report.
The independent assessment report should not be confused with long-term care needs and costing, which will be addressed by appropriate experts in the claim.
How is the rehabilitation implemented, and who pays for it?
The compensator is expected to pay for the assessment report within 28 days of receiving it.
The compensator is under a duty to consider any recommendations made by the assessor and make available funds to enable any reasonable recommendations to be implemented.
The implementation of the recommendations will be effected by liaison between the claimant's solicitor, the claimant and the compensator, and in complex cases involving serious injuries is likely to involve the appointment of a case manager.
The compensator isn't required to pay for any treatment or intervention which is unreasonable in its nature or in terms of its content or cost, or when other adequate and timely treatment or intervention is available. The claimant isn't required to undergo any treatment or intervention that's unreasonable.
The compensator is normally expected to inform the claimant's solicitor whether it accepts or refuses to meet the cost of any such recommendations within 21 days of the date of the report.
If the compensator provides funds for such purposes it cannot, if court proceedings are subsequently commenced, dispute the reasonableness or cost of the treatment. If the claimant commences court proceedings and subsequently loses or discontinues his claim, or if a finding of contributory negligence is made or agreed, the compensator isn't entitled to seek to recover any funds paid for this purpose from the claimant.
What's the role of a personal injury claim case manager?
The role of a case manager is to plan, implement, co-ordinate, monitor and evaluate options and services to meet an individual's health needs, through communications and available resources to promote the restoration of the claimant to their pre-accident quality of life as far as is possible.
A case manager's primary duty is to the injured claimant, regardless of who's paying for the rehabilitation.
In choosing a case manager, the claimant's solicitor will conduct an assessment to ascertain that they are suitably qualified. Consideration must be given to experience, qualifications, independence, specialism, any professional memberships and up-to-date knowledge within their professional area.
The case manager may be, but is not usually, the same person who conducts the initial assessment.
How does rehabilitation affect the personal injury claim?
The code is neither compulsory, nor the only way to approach rehabilitation.
It's the spirit of co-operation and rehabilitation that the code promotes, and the objectives of the code will be met whenever parties co-operate to assess and then provide for the claimants rehabilitation needs following a personal injury.
The provision of any report obtained for the purposes of assessment of an injured party's rehabilitation needs shall not be used in any litigation arising out of the accident which is the subject of the claim, unless by consent of the parties.
Successful rehabilitation may mean that the overall compensation award could be less, but the ability to suffer less trauma and pain, make the best possible recovery, and return to work earlier is of more importance than a larger award of compensation at the expense of health and quality of life.
If you've suffered a personal injury, our team of specialist lawyers can help you access the treatment and support you need.
Tell us what you think
All documents should be read and used in accordance with the terms and conditions. This document is for your general information only and is not a detailed statement of the law. It is provided to you free of charge and should not be used as a substitute for specific legal advice. If you require specific legal advice please contact our client services team on 03700 868686.
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024
