The requirement of parties to a personal injury claim to consider rehabilitation
The Pre-Action Protocol for Personal Injury Claims requires that parties to a personal injury claim should consider, as early as possible, whether the Claimant has needs that could be met by rehabilitation, treatment or other measures.
The Protocol encourages parties to a personal injury claim to follow the Rehabilitation Code in considering how to identify the needs of the Claimant and how to address the cost of providing for the Claimant’s needs.
What is the Rehabilitation Code?
The Rehabilitation Code is published by the Rehabilitation Working Party which consists of representatives from the International Underwriting Association of London, the Association of British Insurers, Lloyd’s primary insurers, legal groups, care providers and the National Health Service.
The Code is endorsed by many organisations, including the Association of Personal Injury Lawyers.
The latest version of the Rehabilitation Code was published in 2007.
The aim of the Rehabilitation Code is to promote the use of rehabilitation and early investigation so as to ensure that an injured person makes the best and quickest recovery. The Code encourages Claimant representatives and “compensators” (insurers and loss adjusters) to work together in order to achieve this.
What steps is a Claimant’s solicitor expected to take?
The Code requires the solicitor of a Claimant to consider whether early intervention, rehabilitation or medical treatment is likely to, or may possibly, improve the Claimant’s present and/ or long term well being. The Claimant’s solicitor is expected 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.
A solicitor is not expected to make any decisions on the need for rehabilitation or treatment himself and will ordinarily seek the advice of a medical expert.
Solicitors are expected to work closely with compensators in this regard and are expected to provide compensators with sufficient information to enable them to assess the position. The Pre-Action Protocol for Personal Injury Claims requires the Claimant’s solicitor to provide full details of the Claimant’s injuries, the nature and extent of any or any likely continuing disability and any recommendations that have been made relating to the rehabilitation of the Claimant.
If a compensator suggests rehabilitation, early intervention or medical treatment, the Claimant’s solicitor is expected to discuss this with the Claimant and/ or his family and respond to the compensator within 21 days.
What steps is a compensator expected to take?
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.
Assessment of a Claimant’s 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 person.
The appointment of an assessor
The Claimant’s solicitor and the compensator are encouraged to agree the identity of the person or organisation who will carry out the assessment. 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.
If a proposed assessor has a direct business connection with one of the parties, that party is expected to reveal to the other party the existence of and nature of the connection.
The parties are also expected to agree the method of providing instructions to the assessor.
In simple cases the assessment may be carried out by the assessor conducting a telephone interview with the Claimant. In more complex cases the assessor will probably have to meet with the Claimant.
Generally the assessment will take place within 14 days of the referral to the assessor.
The assessor’s report
Normally the assessor’s report will cover the injuries sustained by the Claimant, details of the Claimant’s current disability or incapacity, any other relevant medical conditions, the domestic circumstances of the Claimant, details of the Claimant’s employment, details of the injuries or disability in respect of which early intervention or rehabilitation is suggested and details of the type of intervention or treatment recommended, including its likely cost and likely outcome.
The report should not deal with liability and, therefore, should not contain a detailed account of the circumstances of the accident.
The report should be sent to both parties simultaneously. They then have the opportunity to ask the assessor questions about the report.
Neither party is entitled to disclose the report, or any correspondence relating to it, in any subsequent litigation unless the parties agree to its disclosure.
The compensator is expected to pay for the report within 28 days of receiving it.
Recommendations of the assessor
The compensator is expected to consider any recommendations made by the assessor and make available funds to enable any reasonable recommendations to be implemented.
The compensator is not 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 is not required to undergo any treatment or intervention that is 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 is not entitled to seek to recover any funds paid for this purpose from the Claimant.