Personal Injury: A New Manual

While the UK courts have traditionally done little to encourage rehabilitation in personal injury cases, the new culture of collaboration engendered by the Woolf Reforms has signalled a switch in attitude that could bring change, writes Andrew Underwood

The need for effective rehabilitation is a statement of fact that needs no debate. So why is the adoption of rehab in practice so poor, or is the perception different from reality?

The second Bodily Injury Awards study revealed how poorly the UK performs compared to the rest of the developed world. The chance of a paraplegic returning to full-time employment is 14% in the UK, compared with 32% in the US and 50% in Scandinavia. But why is this?

The main problem is that the UK has a fault-based system, where compensation is measured in terms of pure damages rather than any concept of restitution.

The compensation system has traditionally done little to encourage rehabilitation or a collaborative approach. There has been a failure by all parties involved in a claim to engage or to put the claimant at the centre of the process.

Then along came the reforms recommended by the Woolf Report in 1999 based on openness and collaboration. Rehabilitation is a natural adjunct to such a system.

The drive to rehabilitation has gathered increased momentum as the Government — through the Department of Work and Pensions (DWP) — has sought to address the potential crisis in the employers’ liability market. The market has seen such an explosion of premiums in recent years that claims costs needs to be brought under control. Rehabilitation is one tool by which this can be achieved.

The DWP has been especially active in this sector; no doubt influenced by the fact that central Government is the largest employer in the economy. We have seen the growth of return-to-work schemes and the DWP is in the midst of a project with stakeholders including the Forum of Insurance Lawyers (FOIL), the Association of Personal Injury Lawyers (APIL), insurers and trade unions with a view to establishing a framework for vocational rehab.

The new pre-action protocol amendments that come into force imminently include a positive duty on claimant lawyers to consider rehabilitation options. Already I have heard of one or two local district judges who are thinking about having a standard form of questionnaire at case management conferences that require the parties to confirm whether they have considered rehabilitation in personal injury claims and, if not, why not. There may be a sea change of awareness.

However, the old adage of ‘closing the gate after the horse has bolted’ springs to mind. By the time the court comes to consider court sanctions or even mitigation issues, the golden opportunity to invest in rehabilitation may well have been lost. There is ample evidence that the first three to six months post injury are absolutely crucial in the terms of success prospects.

Work needs to be done at the front end of the claims process to identify how behaviours by all stakeholders can be influenced. From the moment the claimant is injured the rehabilitation clock is ticking, long before issues of fault and compensation come into play.

Employers have a central part to play be they directly responsible for the injury or not. Rehab is one method by which employers can minimise the cost consequences of lost work days. Most importantly, the employer will generate a feel-good factor with its staff and be thought of as a caring employer. Perhaps the Government should look at tax breaks for those employers that invest in rehabilitation insurance for their staff.

The Government has placed significant emphasis on rehabilitation in the civil justice system. Its response to the Better Regulation Task Force paper highlights this fact. Credit in corporation tax or other tax liability is the sort of imaginative cross-selling by central Government that would be a welcome shot in the arm for employers. It would be a clear signal that the Government is committed to rehabilitation rather then merely paying lip service to the rhetoric.

Wider availability of vocational rehabilitation will depend on central Government. The greatest potential source of vocational rehabilitation provision is through the NHS and the DWP. The Government has the leverage to kick-start the process away from the fault-based claims environment. There is a ready-made vehicle through which recoupment can be achieved where a tortfeasor is established to exist.

After employers, the next ‘gate keepers’ to rehab are GPs, who have too easily signed people off work ‘with a collar’.

Physiotherapists have done much to explode the myth and to re-educate GPs. However, there is still much that could be done. Could GPs contribute to a regional rehab resource, freeing up their time? If a successful claim arises, the GP would recover a fixed fee, which would be met by the insurer as part of its liability for NHS charges. Insurers would see immediate benefit through a no fault-based rehab process that intervenes at the first opportunity, (hopefully) long before a lawyer has got their hands on the case.

The benefit to GPs would be the freeing up of their valuable and limited clinic time and the removal of the burden of issuing sick notes. Sick note issue would be controlled by the rehab resource who in turn would work with employers in a staged return to work.

In more serious cases we need a more imaginative approach to loss of benefit entitlement on resumption of work. This is a major hurdle to vocational rehab and emphasises the role that central Government can and should play.

Many insurers have already adopted an imaginative approach. It is common to see a designated senior manager responsible for rehab issues. Despite some cynicism in the claimant sector, insurers do want to put claimants at the centre of the claims process.

While we can highlight the opportunities of a joined-up rehab programme, there remains a fundamental hurdle — many claimants will consult a lawyer before rehab becomes an issue. The proposed redraft of the pre-action protocol will require lawyers and insurers to consider rehab at an early stage. Its success or failure will depend on both sides embracing the change.

I do hope I am proved wrong, although I am not holding my breath. I recently handled a case involving serious orthopaedic injury. The insurer sought to agree a joint expert, to collate relevant medical records and to engage on rehabilitation. The (experienced) claimant lawyer expressed the view, when refusing all access, that "the claimant is not obliged to share reports with the defendant in multi-track actions and that the defendant cannot have access for its own medical examination. The claimant will produce his case when ready and the defendant can then respond to that case."

How can such a mentality be remotely considered to be in the claimant’s best interests?

FOIL is working with insurers and claimant lawyers to generate a debate surrounding behaviour in multi-track actions. It is our view that the pre-action protocol and the current Civil Procedure Rules toolbox may be more sinner than sinned in that it actually encourages duplication, delay and front-loading without real accountability.

I would like to see concepts of project management and time-based strategic planning coming into the claims process for more serious cases (those involving future loss) to encourage a task-based claims culture.

Unless there is progress in this area we can see real risks of satellite litigation and return to the trenches. The loser will be the claimant and all those who pay the indirect taxation called insurance premiums.

The challenge for all sides will be how they advance what was started five years ago by Lord Justice Woolf. He has shown what can be achieved by "ripping up the established claims manual". However, the reforms have been hijacked by vested interests and watered down by lack of resource. The gauntlet for all stake-holders will be how to move these good intentions on rehab forward without adding to the cost burden that ultimately we all bear through higher premiums.

Andrew Underwood is a partner at Keoghs and the president of FOIL.

source: Legal Week (Last Updated: Thursday 3 Feb, 2005)

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