Personal injury rehabilitation – steps to take for seriously injured clients
David Preston explains the importance of personal injury rehabilitation and how it is managed during the personal injury claim process.
Posted on 16 December 2020
It is generally accepted that the sooner rehab happens, the more likely it is to be effective, so having a proactive solicitor who specialises in high value personal injury claims is key.
One of the first things I consider when I meet with new clients is what form of rehabilitation can assist them to recover more quickly from their injuries, and to have the best chance of maximising my client’s recovery, it is important to make those arrangements as early as possible.
The Rehabilitation Code
Defendant insurers /solicitors and I, as a claimant personal injury solicitor, and are under a duty to consider the rehabilitation needs of an injured claimant as set out in the Rehabilitation Code 2015.
This duty applies even when liability for the incident which caused the injury is disputed or still under investigation. The aim of the Code is to help the claimant make the best and quickest recovery from their injuries.
The Rehabilitation Code applies to all personal injury cases, regardless of the cause of the injuries. However, in cases involving medical negligence the position is different.
The process for arranging rehabilitation differs depending on the severity of the claimant’s injuries.
In cases involving medium, severe and catastrophic injuries, a suitably qualified rehabilitation case manager will normally meet with the claimant to assess the extent of their injuries, the treatment they have received to date and any barriers to recovery. The case manager will complete an Immediate Needs Assessment report, setting out any recommendations for treatment and rehabilitation.
If early interim payments of damages can be agreed between the parties, case managers can be instructed solely on behalf of the claimant. If this is not possible, case managers can be instructed jointly by the defendant and claimant’s representatives. In either situation, the case manager’s relationship with the claimant is therapeutic and independent of the instructing party.
Once the Immediate Needs Assessment is available, the defendant has a duty to consider the recommendations for treatment and the extent to which funds are made available to implement them.
In most cases, funding is usually agreed by the defendant’s Insurer to enable the claimant to receive rehabilitation.
Rehabilitation / treatment can include neuropsychological treatment, occupational therapy, physiotherapy, speech and language therapy, hydrotherapy, aids and equipment, private medical treatment, and support worker / enabler.
In some cases it is also necessary for the claimant to receive ancillary assistance such as cleaners / domestic assistance, access to taxi accounts and interpreters.
The type of rehabilitation / treatment required in each case depends on the individual needs and circumstances of the injured claimant. A case manager is normally appointed to co-ordinate the treatment team.
Whilst most defendant insurance companies I come across are amendable to funding Immediate Needs Assessments, some are more proactive than others and some take issue with the treatment which has been recommended, leaving the claimant in an awkward position.
Unfortunately I also have recent experience of defendant Insurers agreeing to fund an Immediate Needs Assessment and then making settlement offers, putting the claimant under immense pressure at an early stage.
The Serious Injury Guide
In cases involving complex injuries which are likely to be of high value, there is a Guide to Conduct of Cases Involving Serious Injury – the Serious Injury Guide.
Whilst the guide is not mandatory, most large Insurers and claimant solicitors have signed up to it. The guide is aimed at promoting collaboration between the parties, swift early notification of claims and implementation of rehabilitation and ongoing review and case planning. Under the Guide, early disclosure of documents, admissions of liability (where possible) and interim payments are encouraged.
In cases involving catastrophic brain injuries, early treatment and rehabilitation is hugely important to maximise recovery.
In practice, the Serious Injury Guide (if adhered to) can be very effective as it allows rehabilitation to be implemented before the claimant is in a position to send a formal letter of claim.
The claimant should notify the defendant of the intended claim within seven days of instruction. The defendant insurer must acknowledge the letter within 14 days and identify the file handler. Within 28 days of notification, the defendant insurer should contact the claimant’s solicitor to discuss liability, the claimant’s injuries and rehabilitation.
It should be noted that the Rehabilitation Code (referred to above) still applies to complex / catastrophic, high-value cases. After the initial communications, an Immediate Needs Assessment will normally be arranged and the steps outlined above followed to implement treatment and rehabilitation.
From personal experience of my own caseload, the Serious Injury Guide can work well. Its focus on rehabilitation encourages co-operation between the parties to meet the claimant’s needs. I have seen the results of this early intervention and it is rewarding to see the improvement made by my clients during the first 12 months of their claims. I have also developed good working relationships with defendant insurers / solicitors.
I appreciate that the Serious Injury Guide cannot be followed in every case. However, I would encourage more defendant insurers to sign up to it as it can benefit all parties involved, particularly the seriously injured client.