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Published 1 October 2015
The International Underwriting Association has, together with the Association of British Insurers, recently published an updated Rehabilitation Code ( 'the 2015 Code'). Due to come into effect from 1 December, the 2015 Code was borne out of cross-industry collaboration which included representation from APIL, FOIL, MASS, PIBA and CMS UK.
The Code, although voluntary, is recognised by the relevant Pre-action Protocols pertaining to the pre-litigation handling of personal injury claims, although achieving the aims of the Code are more important than strict adherence to its terms. It is therefore open to the parties to agree an alternative framework to achieve the early rehabilitation of the Claimant should they so wish.
Unlike the 1999 Code which it replaces, the 2015 Code recognises the distinction between high and low value claims insofar as the requirements for rehabilitation are concerned. For this reason, the 2015 Code is now split into two distinct sections, covering 'lower-value injuries' and 'medium/severe and catastrophic injuries'. Within the lower-value injuries section, separate provision is made for soft tissue injury cases as defined in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. Click here to view our Insurance Adviser alert on Whiplash Reform Phase 1 – calling time on the compensation culture.
Regardless of the value of the claim, the duty of the Claimant's representative to act in the best interest of their client is not limited to securing the maximum amount in compensation, but rather it extends to consideration of 'early rehabilitative intervention to improve the Claimant's physical and mental well-being'. Similarly, the compensator has an ongoing duty to consider whether the Claimant would benefit from additional medical or rehabilitative treatment and, if they do, to seek to work collaboratively with the Claimant's representative to fulfil those requirements.
Where there is a need for rehabilitation the Claimant's representative should gather sufficient information as quickly as possible and present it to the compensator by telephone or email, to enable them to make an informed decision. Likewise, the compensator should communicate any offer of rehabilitation and, thereafter the Claimant's representative should respond to any such offer in a timely manner. Any communication passing between the parties regarding the issue of rehabilitation should be responded to within 21 days without fail.
Whilst early intervention is encouraged, it is important that any such steps do not conflict with the recommendations made by treating clinical teams, albeit this is less likely in the case of lower-value injuries.
All low value motor claims are now required to pass through the Ministry of Justice's electronic portal. Claims are registered by completing a Claims Notification Form (CNF) which mandates that the Claimant's representative should discuss the issue of rehabilitation needs with the Claimant or a family member in each and every case. The outputs of that discussion should be recorded in section C of the CNF, to include details of any professional treatment recommendations, treatment already received (including name of provider) and ongoing rehabilitation needs.
Whereas for lower-value injuries generally there may be a requirement for "physiotherapy, diagnostics and consultant follow-up, psychological intervention or other services", in the case of 'soft-tissue injuries' (as defined by the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents) the 2015 Code envisages that any intervention is likely to be limited to physiotherapy. However, the Code also recognises that there will not necessarily be any requirement for rehabilitation in lower-value injury claims – particularly where soft-tissue injuries are concerned.
Save where there is an urgent medical need for intervention, no significant treatment should commence until such time as the Claimant's representative has communicated the requirement for rehabilitation to the compensator and the CNF has been transmitted.
While the parties are obliged to give consideration to the Claimant's rehabilitation needs, the Claimant is under no obligation to undergo any rehabilitative treatment that is recommended. Similarly, where such treatment has taken place without the agreement of the compensator, the compensator will not be required to meet the cost of any treatment that is deemed to be unreasonable, either in content or cost.
Unless the compensator expressly agrees to meet the cost of rehabilitation, where liability and/or causation remain in dispute between the parties, the Claimant risks not recovering the cost of any rehabilitation treatment incurred. Similarly, unless the compensator has accepted the treatment regime (to include the number and cost of proposed sessions) there is a risk that the Claimant will not recoup his or her full outlay. Where the Claimant fails to take up an alternative (more cost-effective) treatment regime, the reasonableness or otherwise may subsequently be a factor that is taken into account by the Court on an assessment of damages.
There is no requirement for a medical report to be prepared before the provision of rehabilitation is considered. In these circumstances, a Triage Report (TR) should be obtained to establish the type of treatment required. In most cases, the TR will be the only report necessary relating to the Claimant's rehabilitation needs, however the parties may agree the need for a subsequent Assessment Report (AR) from the treating physician commenting on progress and further treatment needs and, thereafter a Discharge Report (DR) summarising the treatment provided (although the AR and DR may be amalgamated into one single report). Where the TR is the only report, a treatment discharge summary should be included within the Claimant's treatment records as a matter of course.
Given that its function is to identify treatment needs, the TR should not provide a diagnosis or prognosis, nor should it seek to deal with issues of liability or causation. The TR assessment should always be carried out by an appropriately qualified and experienced individual who is subject to appropriate clinical governance.
The TR should be prepared in a way that is appropriate and proportionate to the needs of the case. In most instances, the assessment will be carried out within 7 days by way of a telephone interview. The TR itself is likely to be very simple and sent in email format. It should be sent simultaneously to both parties (in the spirit of openness and collaboration), and both parties have the right to raise questions on the report.
The compensator should respond to the TR within 15 days of receipt indicating the extent to which the recommendations are accepted, and giving reasons for any refusal to meet the cost of recommended treatment. If appropriate, the compensator should set out any alternative recommendations for rehabilitative treatment.
Once a rehabilitation treatment regime has been agreed between the parties (or the treatment provider has been jointly instructed), the compensator agrees that, in any legal proceedings connected with the claim, they will not dispute the reasonableness of any treatment already undertaken which they have funded. If the claim subsequently fails or is discontinued by the Claimant, it is not within the Code to seek to recover funds from the Claimant unless it is proven that there has been fraud or fundamental dishonesty on the Claimant's part.
Save in exceptional circumstances the person or organisation providing the rehabilitation should be entirely independent of the person or organisation that provided any medico-legal report to the Claimant. Click here to view our Insurance Adviser alert on Whiplash Reform Phase 1 – calling time on the compensation culture.
Unlike in the case of medical reporting, the provision of treatment in soft-tissue injury claims was not caught by phase 2 of the whiplash reforms which saw a ban on Claimant representatives commissioning reports from Medical Reporting Organisations (MROs) with whom they have a financial link. Click here to view our Insurance Adviser alert on Whiplash Reform Phase 2. This has, in some instances, resulted in the provision of unnecessary and over-priced treatment for monetary gain. The requirement within the Code to obtain the other party's agreement before referring the Claimant for rehabilitation via a provider with whom the Claimant's representative has a direct or indirect business connection is a welcome one.
Significantly, unlike the AR and DR which may follow it, to benefit the parties the TR is designed to sit outside of the litigation process. As such, it cannot be relied upon during any subsequent litigation unless both parties agree in writing. This extends to include any notes, correspondence and documents created in connection with the TR assessment. Moreover, anyone involved in preparing the TR or associated documents cannot be compelled to give evidence at a subsequent hearing.
The compensator should make payment for the TR (and if applicable the AR and DR) within 28 days of receipt, subject to the usual right to challenge the quantum of any invoices they believe to be excessive or disproportionate.
The treatment provider should ensure that all invoices are within market rates and detail: the type of treatment provided; the dates of any treatment sessions (included DNAs); the total number of treatment sessions provided (and whether any of those treatments were provided remotely); and the total cost (indicating whether this is for treatment provided or an estimate of future cost).
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