- Provides more than just financial help to a client
- Signs of recent improvement in its application between claimant and defendant teams
- Find out how to best implement rehabilitation alongside claims
What To Consider In Rehabilitation
Although the pre-action protocols are not without difficulties, over the past few years claimant and defendant representatives have become a lot better at working together to re-habilitate injured claimants, providing them with more than just financial help. However, many lawyers and insurers are still suspicious of rehabilitation, with some not knowing what to expect from their appointed rehabilitation service providers. This article intends to show how best to use rehabilitation alongside the claims process.
Unfortunately, there are no formal professional standards for case managers or rehabilitation providers (RPs) in the UK, although the Case Management Society of the UK intends to publish best practice standards for case managers early in 2005. It is therefore important to look for the following when working with RPs.
It is important for the case manager or RP to be independent and not affiliated to an insurance company or solicitor. Only then can all parties trust that the injured party is at the centre of the rehabilitation process.
Effective, regular and open communication
In the past, RP’s have been criticised for sending regular bills without providing an update on the programme, or an indication of how much longer it will run. It is imperative that progress reports are sent every four to six weeks, to update all parties. Following the initial assessment, a rehabilitation plan should be produced detailing the likely length, cost, and expectations from the programme so that all parties can agree to proceed. Update reports can then be monitored against the plan.
A focus on returning to work and achieving outcomes
If enabling a claimant to return to work is the agreed rehabilitation goal, the rehabilitation plan needs to be vocationally based and tailored to the individuals anticipated job.
Treatment/training providers are vetted and monitored
One of the main duties of the case manager is to co-ordinate treatments. If the services must be bought on a private basis, service providers should be vetted before instruction and monitored during the treatment to ensure they are working towards the agreed goals.
When should rehabilitation be considered?
Although many still believe that an expert must assess whether any treatments would help the claimant recover as fully as possible, generally this is not the case. If the claimant fulfils any of the criteria listed in the box overleaf, rehabilitation could help.
When appointing a medial expert, lawyers send detailed instructions to ensure that the expert provides the right information. Instructing a case manager or RP should be no different. However, some lawyers include lengthy discussions on liability, causation and a full medical history. This is unnecessary: a brief medical synopsis should suffice. More attention should be paid to the expected service standards, such as the timeframe for reporting, the expectations from the report, and ensuring that goals and objectives are set and achieved. It is also worth clarifying at the outset that you require an outcome report at the end of the rehabilitation process.
All parties must view rehabilitation as treatment and not as part of the evidence for the Court. I have seen RP’s include a statement at the end of the report that their duty is to the Court. This is incorrect as they have not been instructed as expert witnesses to the court. Although rehabilitation can run alongside the claim/litigation, it should be kept completely separate. The ethos outlined I the rehabilitation code of practice is that the parties work together to enable the injured person to achieve an optimum recovery.
Some RP’s confuse the issue further by stating that they will not give evidence in court, although they understand that their report could be put before the court for consideration. In my view this is contradictory. The report forms part of the medial records for the claimant and, as detailed below, provides nothing more than clinical fact.
During rehabilitation, information about the claimant can sometimes come to light with might increase or decrease the value of the claim. RP’s should not discuss such information – it should be viewed as part of the medical and treatment records. Similarly, RP’s are sometimes asked to attend conferences with counsel, and sometimes attend. I think this is improper – RP’s risk compromising their independence if they become involved in the claims process.
Their sole aim should be to focus on the claimant’s recovery. There may be occasional circumstances when the RP could be asked to give evidence as a witness of fact, but it is hoped that this is rarely required and does not become the norm.
Can rehabilitation be used once court proceedings have started?
Many still believe that early intervention provides the only possible chance of success with rehabilitation. It is true that early intervention produces optimum results, but successful outcomes can be achieved further down the line. If rehabilitation is used when court proceedings have been issued, there is a possibility that the process could be complicated if the judge is not keen on using rehabilitation. However, if a united front is demonstrated then this should not affect the success of rehabilitation.
Many also get confused about the role of rehabilitation once court proceedings have been issued and the court’s timetable is underway. However, this should not make a great deal of difference. Judges appear content to agree to stays in proceedings to allow rehabilitation to take effect. Rather than complicate the issue, a simplistic view should always be taken. Will the rehabilitation be able to produce a more definite and final prognosis? Is there a chance that the claimant will regain some lost function or return to work? Is the claimant still awaiting further medical treatment?
I think that much of the confusion arises when lawyers try to obtain further medico-legal condition and prognosis reports, care reports or update their schedules/counter-schedules of loss. Is if not futile to update evidence when rehabilitation is likely to change the position?
The answer must be to apply to the court for a brief stay to allow rehabilitation to take place. In some areas the court may be prepared to let you do this by consent order. Some may ask what evidence should be used to assist the court in agreeing to the stay. The rehabilitation reports should not be used in litigation if the rehabilitation code of practice has been followed – witness statements should be sufficient. The witness statements should refer to the fact that there is an initial assessment indicating that rehabilitation will help the claimant in their recovery, that all parties have agreed to work together in this regard, and that the report cannot be disclosed under the code of practice.
The same applies for schedules of loss, as if the rehabilitation is successful the care claim, future loss of earnings and/or Smith V Manchester award could be different.
Many readers will have been in a situation where experts have been unable to reach agreement in the run-up to trial. Perhaps one expert stated that the claimant’s function and prognosis was consistent with the injury sustained, and the other that the claimant should have had more function and recovery when looking at the pathology of the injury. Such opinions are based solely on the medical impairment model. If no one takes into account the psychological or social aspects, then there is likely to be little improvement. Recent work by the Association of British Insurers and the International Underwriting Association on the psychology of personal injury and rehabilitation has been published and indicates clearly that by using bio-psychosocial approach disproportionate outcomes can be drastically reduced.
One such case I dealt with involved a spinal injury. The joint expert occupational therapist appointed to the case mentioned in passing that the claimant should undergo further rehabilitation (having already had one failed attempt via the NHS).
The trial was set aside, and the claimant underwent in-patient treatment and made remarkable progress, regaining some independence. This threatened to reduce the value of her claim, but she had more hope for the future and had regained a sense or purpose.
Although not all trials should be set aside in these circumstances, it is certainly something that should be considered.
Another tool which can be effective is to use a rehabilitation indemnity as an integral part of settlement. If a trial date is approaching and rehabilitation is identified as appropriate, yet it is not economic to set the trial date aside, then a settlement can be negotiated which makes provision for rehabilitation to be provided afterwards. The terms of this indemnity can stipulate the duration, ceiling costs and commencement period and, if appropriate, the name of the RP. The claimant then benefits from functional recovery and a potential return to work. Costs need not increase, as the case is settled, and acting solicitors need not stay involved.
All parties can benefit from using rehabilitation in suitable cases. The real “spirit” of rehabilitation is to keep the claimant at the centre of the process and focus on maximising their functional recovery and assisting their return to work where appropriate.
It is surely time to forget the notion that personal injury claims are solely about the injured party and their advisers seeking the highest level of damage possible. We must all learn to work as a team to achieve the best outcome and settlement (including functional recovery) for the injured party.
This article gives only a few examples of the issues that can arise, either pre-action or mid-proceedings, but if the principles discussed here are used, hopefully fewer disagreements will surface and rehabilitation will become an integral part of the system following personal injury, as it is in countries such as Australia, New Zealand, South Africa and Sweden.
Procedural positions and processes create much debate when mixed with rehabilitation, and I would welcome any further discussion or information regarding your own experiences.
This article was written by Mr W Herbert a client development manager at Health & Case. ASD recommend and use messes TICCS, please see TICCS