6
Damage limitation
Andrew Pemberton explores some of the common criticisms of rehabilitation and
its role within the modern-day claims arena and employers liability insurance
A common view
of rehabilitation is Mr White Mr Pink
that it provides only DOB: 1977. DOB: 1960.
modest benefits to Job: Skilled manual worker. Job: Manual, line supervisor. Ten years
the insurer, attracts Referred to rehab: 30 April 2010. spent with employer.
additional cost Injury: The jaws of a robot clamped Referred to rehab: 7 May 2010
and life-cycle to down on his right hand leaving it Injury: While working in a cold-store
the claims process compressed for 10 minutes before it environment, client suffered a crushing
andrew Pemberton
is a director at (especially on lower- was removed. He suffered a compound injury to right hand by large, heavy-
argent Rehabilitation value claims), and fracture requiring immediate surgery wheeled trolley. Client was discharged
which is dedicated
to providing high-
that rehabilitation and metal work to be inserted. from A&E same day with analgesia and
quality rehabilitation providers have Damaged tendon resulting in ongoing a splint after confirming fracture to
case management little commercial pain and flexion difficulties and little finger and crush injury to hand.
emphasis in their numbness. Pre-injury health: No pre-existing
delivery. These views may be extreme Pre-injury health: No pre-existing health issues of relevance.
but, without doubt, they represent the issues of relevance. Impact: Returned to work with support
underlying core beliefs of many within the Impact: Severe difficulties at work and of line manager and occupational health
insurance claims sector. How many claims moderate home life implications. Client but subsequently left on advice of an
handlers have use of rehabilitation as one put on 1.5 stone after the accident. NHS consultant orthopaedic surgeon.
of their key performance indicators? Claim made: Yes. Claim made: Yes
The defending insurer is not all to blame,
as claimant solicitors must shoulder their
portion of the responsibility in choking recommendations, poor service levels, injuries, their experiences of the claims
the delivery of the rehabilitation. Yes there low-quality delivery and providers entering process, rehabilitation and subsequent
may be a pre-action protocol, a code of best administration. Yet despite these valid outcome could not be more different.
practice and even the new MoJ portal, all of criticisms, it is the claims process that In spite of their many similarities, one is
which place an emphasis on delivering, or continues to fuel major problems rather than now back at work and, from a rehabilitation
at the very least considering, rehabilitation poor provision. Only by changing the way in perspective, his case is closed. Conversely,
for the injured person; however, despite which the traditional claims process works the other has lost his job and is still
these initiatives, many claimant solicitors within employers liability (EL) insurance can receiving support from a case manager.
still hold the underlying belief that rehabilitation be delivered quicker, cheaper To rub salt into the wounds, his lawyer
rehabilitation will either ‘damage’ their and more effectively, with less disruption to is not able to secure an interim payment
claim or, at best, cause them additional the injured person and their employer, while for another month leaving him in deep
effort without generating any uplift in also helping to tackle fraud and the wider financial difficulties, so much so that he
damages for their client. In a regime that claims compensation culture. has recently sold his washing machine to
remains focused on delivering financial Consider the two cases of Mr White pay for heating his home. Unsurprisingly,
compensation, rehabilitation will continue and Mr Pink, both of whom suffered crush he is depressed and his GP has referred
to come off second best. injuries to their dominant hand while at him to a psychiatrist to address his mental
Rehabilitation providers are not perfect work. Both cases were referred to Argent health issues. He remains on the NHS
of course. There have been examples Rehabilitation within a few days of each waiting list and his levels of pain and
of excessive charges and treatment other. Despite the similarities in their disability are not decreasing.
7
In the outset Mr Pink was able to receive occurring. Mr Pink’s injury occurred 492 have to be aligned from day one or
the benefits of his employer’s occupational days before his referral to Argent for what claimants are simply not going to get
health (OH) service and a supportive line could be considered ‘damage limitation the help they should when they need it.
manager, who together implemented rehabilitation’. Such delays reflect poorly on The challenge is to create a “win, win,
a return-to-work plan; they assessed the solicitor, broker, insurer, provider and win, win” outcome within our adversarial
his ability to return to work in a cold the industry. process, which may require legislation
environment and explored alternative It is possible that Mr White would have hitherto not seen and certainly more
duties. Meanwhile, Mr White did not have recovered by himself or that Mr Pink may radical than anything Lord Young has
access to OH services. still have lost his job even if he had been proposed.
However, when Mr Pink was told he referred earlier. The key point is that it is If insurers and claimant solicitors
should not return to his previous work by being left to claimant solicitors, brokers cannot organise the industry to identify
his NHS consultant orthopaedic surgeon and insurance claims handlers to decide and support injured people quicker and
he adhered to the advice and so is now when and if rehabilitation services might be more consistently, it may be beneficial to
seeking a new role with a new employer – of benefit, based upon intuition, experience introduce a truly independent advisor to
the hardest of all job searches. or factors relating to the legal process. support the claimant. Like the selling of
Meanwhile, Mr White has made a good These deliberations are not consistent, do a pension, making a claim for personal
recovery at a fraction of the cost. Mr not treat customers (AKA claimants) fairly injury compensation may require
White, who continues to suffer pain and and, as the cases above illustrate, often independent rehabilitation advice as a
impairment, is, like Mr Pink, engaged in the fail to produce the right decisions. No one matter of course to ensure the claimant
claims process, but from a position of full- would wish their own mother or father to ‘buys’ the right kind of representation
time employment. experience the claims process that Mr Pink product. This advice would not be
Mr Pink’s case is ongoing and has an is going through – so why does it continue? delivered by the claimant solicitor or
estimated case-management cost in excess Early capture of workplace injury insurer, both of whom have a vested
of £4,500. Despite both men having good events and their proactive management financial interest, but by an impartial,
levels of motivation to engage in the provides obvious benefits for all, but it is appropriately qualified advisor who
rehab process, Mr Pink’s loss of earnings still rare. At a macro level, early capture may also help select the right type of
continues to rise and the outlook for a will help change the public perception representative for the claimant’s needs.
quick case resolution looks poor for the that “injuries equal cash”. So long as the As a profession, we all have an over-
insurer, the claimant and Argent. system delivers cash rather than care, riding obligation to ensure that in 2011 we
Why should two men with similar especially for minor injuries, the public try to end the practice of rehabilitation
injuries, referred to rehabilitation belief that slips, trips and whiplash being used as an afterthought for damage
within days of each other to the same injuries are sources of income will limitation or claim maximisation. The
rehabilitation provider have such wildly continue. ability for personal injury customers to wait
different outcomes? It is these underlying beliefs that have over 490 days to be offered professional
The simple explanation is that Mr White’s driven many into making claims and the rehabilitation support has to stop!
employer is engaged with its EL insurer, personal injury industry continues to
which delivers a proactive, non-liability- feed the compensation culture every time Argent Rehabilitation is dedicated to providing high-
based rehabilitation service. This enabled it fails to deliver appropriate care to its quality rehabilitation case management and return-to-
Mr White to become involved with a case consumers. work solutions. For more information call 0208 774 6066
manager within 30 days of the accident Rehabilitation and the claims process or visit www.argentrehab.co.uk
REHABILITATION SUPPLEMENT