As you would expect, a personal injury lawyer instructed to act in their clients’ best interests will secure reasonable financial compensation for them, as far as that is possible. What you may not be aware of, however, is that under section 2.1 of the Rehabilitation Code 2015, that duty extends to considering “whether additional medical or rehabilitative intervention would improve the claimant’s [condition].”
At Lyons Davidson, we adhere to the Rehabilitation Code and below, we set out what clients can expect from it throughout a personal injury claim.
Objectives of the Rehabilitation Code
Compensation is typically thought of in terms of money. Ultimately, claimants will be seeking an award for their losses, in order to be restored as far as possible to the position they were in before their accident. The Rehabilitation Code extends this to ensure both parties involved in an accident also aim to restore the claimant’s health, quality of life, independence and ability to work.
In this way, the code helps start a conversation between the claimant solicitor and the compensator, rather than an adversarial exchange. It is a matter of professional courtesy between the parties to consider the role rehabilitation can play at an early stage, in order to assist the injured person.
This is highlighted by the fact that both parties can come to a rehabilitation arrangement without prejudice and regardless of liability. To quote the code again, “the […] benefits of proceeding with rehabilitation at an early stage, regardless of agreement on liability, may be especially strong in catastrophic and other severe cases.” Compensators may offer physiotherapy to the claimant at no expense before their policyholder has decided whether they are prepared to admit liability.
The code then goes on to state: “If the claim later fails, is discontinued or contributory negligence is an issue, it is not within the Code to seek to recover such funding from the Claimant unless it can be proven that there has been fraud/fundamental dishonesty.”
The claimant solicitor
Provided the claim has reasonable prospects of success, full details of the accident will be given to the other side and their insurers at an early stage of the process. Where applicable, this will be done using a Claim Notification Form (CNF). Therefore, as soon as they receive the CNF, the compensator will be made fully aware of the rehabilitation needs of the claimant, particularly where this has been recommended (or initiated) by a medical professional.
Sending a CNF is the most efficient way of complying with the code and beginning the rehabilitation conversation, before any liability decision or medical investigation has begun.
It is the duty of the compensator, from the earliest practicable stage, to consider whether the claimant would benefit from additional medical or rehabilitative treatment. Generally, the compensator is expected to make a decision about whether they are willing to offer physiotherapy when they return their liability decision.
If they are offered rehabilitation, claimants can either approach the other side to organise treatment or arrange treatment through a provider instructed by the claimant solicitor themselves. Claimants are also welcome to approach their own GP or a consultant to arrange rehabilitation through the NHS. Therapies ranging from joint and spine mobilisation to acupuncture may be appropriate to expedite recovery.
Facilitating rehabilitation such as physiotherapy has the additional benefit of demonstrating to the compensator that the claimant is taking reasonable action to minimise the loss they have suffered. Restoring one’s health and ability to work as soon as possible through rehabilitation presents an ideal opportunity for the client to mitigate their losses. In fact, it is advisable that clients undergo physiotherapy when it is suggested to them, since the damages awarded may otherwise reflect the claimant’s missed opportunity to mitigate.
The assessment process
The Chartered Society of Physiotherapy’s website describes rehabilitation as an intervention that “aims to optimise patient function and well-being, to help integrate that patient back into their chosen lifestyle activities whether at home, work or leisure.” To restore an injured person to their original position, rehabilitation looks at all aspects to deliver a tailored response. By doing so, rehabilitation focuses on changes to functional disability and lifestyle restrictions based on the patient’s own goals for functional improvement.
The Rehabilitation Code is also used by rehabilitation treatment advisers. When instructed, the party organising treatment will ensure that an initial assessment is carried out and a triage report written, as outlined in section 4.4 of the code. Regardless of who instructs them, the organisation that prepares the report is entirely independent of either party.
The initial assessment establishes whether treatment is appropriate and, if so, what type of treatment is needed. Often, clients will engage in a telephone triage to assess their initial needs, which may lead to a face-to-face assessment.
Assessment reports are not intended to deal with any issues surrounding legal liability; they should be prepared and used wholly outside the litigation process and should not seek to persuade. The triage report does not provide a prognosis or diagnosis but is a simple, descriptive document that illustrates the type of injury and its extent.
The code identifies several topics that a triage report should normally cover. These are:
- Injuries sustained by the claimant;
- Current impact on their daily activities, domestic circumstances and, where relevant, employment;
- Any other relevant medical conditions that do not stem from the accident;
- Past provision and current availability of treatment to the claimant via the NHS, their employer or health insurance schemes;
- Type of intervention or treatment recommended;
- Likely cost and duration of treatment;
- Expected outcome of this intervention or treatment.
With this, the parties can then continue with the collaborative process in order to establish, assess and meet the claimant’s ongoing rehabilitative needs.
As a signatories to the Rehabilitation Code, all claims handlers at Lyons Davidson keep our clients’ best interests in mind. For more information on any of the issues raised in this article, please contact Dan Finlay in our Personal Injury and Accident Claims team by emailing [email protected] or by calling 0117 904 5771.