Rehabilitation is now a well-established part of serious injury claims handling. Whilst a collaborative process is still the desired gold standard, the reality is that various opportunist behaviours have developed as parties have sought to exploit rehabilitation for claim purposes.
To coincide with the first anniversary of the third edition of the Rehabilitation Code (the Code) in December 2016, we look back at a Kennedys’ client breakfast workshop earlier this year, attended by a leading case manager and various insurers, which catalogued some of the bad practices and explored how they might be mitigated.
A compensator’s perspective
Many compensators still legitimately complain about rehabilitation overspend and overdependence, which is especially apparent in cases where a claimant’s team unilaterally recruits a case manager to support their claim strategy. The case manager then builds a gold-plated rehabilitation package, including intensive care provision, with a view to presenting a fait accompli to the court. At its worst, the ‘hired gun’ even provides a lengthy witness statement supporting the claim and helps to ensure that reporting experts are primed to endorse inflationary heads of claim.
These types of self-serving behaviours by a claimant’s team can act as warning signs to compensators and risk triggering defensive counter-measures. This can adversely affect the funding model available to the claimant. Instead of providing the generous regime under the Code, a compensator may instead choose only to fund the case manager to maximize statutory resources. In the alternative, a compensator may drip-feed interim payments at the claimant’s risk regarding any compensation shortfall via the claim, or even a later recovery if the claim fails.
A case manager’s perspective
Our guest speaker outlined a number of additional practical barriers to effective rehabilitation including:
- Refusing to disclose medical records, which can then lead to compensators refusing to fund recommendations, or deferring approval until the full clinical justification is disclosed.
- Relying solely on funding rehabilitation via interim payments by the compensator, and refusing to even consider applications for statutory funding, which sets an adversarial tone.
- Declining to accept a compensator’s offer of rehabilitation until preliminary expert reports are available, by which time the opportunity to address immediate needs may have been lost and some problems may already have become entrenched.
- Either side responding too slowly to the Initial Needs Assessment (INA), or compensators refusing to support clinical recommendations based solely on costs grounds.
- Fostering rehabilitation dependence, rather than promoting incremental independence, including by permitting intervention to go on for too long when a claimant has already reached full recovery potential and should be transitioning from the rehabilitation to maintenance phase.
The Code thankfully seeks to regulate some of this tactical maneuvering and restore the holistic approach that was always intended. It expressly reminds case managers that their role is therapeutic, not to act as an expert witness, and includes exploring help that may be available from third parties such as the NHS, employers or health insurers and not just from the compensator. To prevent rehabilitation excess, the Code also specifies that the case manager must always defer to the clinical lead and that the compensator is not required to pay for treatment if deemed unreasonable in nature, content or cost.
In those cases where the parties agree to abide by the Code, a pragmatic timetable should be agreed, including rolling disclosure of medical records for clinical context, and aspirational break points when, all being well, the claimant will have achieved sufficient recovery to reduce or discontinue certain items. The case manager will ideally take an active role in challenging all parties to regularly review the rehabilitation merits, including by conference calls or even face-to-face meetings in more complex or controversial cases.
One weakness of the Code has historically been that there is no obvious sanction or deterrent for unreasonable conduct, although latterly parties who are signatories to the Serious Injury Guide have had the option of contacting the nominated escalation points for resolution of any disputes.
Overall, good relations and open communication underpins effective rehabilitation management. Compensators can significantly assist with building up a relationship of trust between the parties, by responding quickly to the INA and not quibbling over small-ticket items. In return, claimants might agree ground rules for sharing information and ensuring that the case manager does not stray into claim advocacy. It is to be hoped that the more balanced approach enshrined in the latest Code will encourage greater collaboration and help to stamp out the subculture of exploiting rehabilitation for tactical gains.