New legal framework for personal injuries

The Rehabilitation Code – the document that sets out a legal framework for use when settling personal injury claims – has been updated to bring it into line with modern practice and recent reforms. Mark Baylis explains its significance in the Employer's Liability arena.

The IUA-ABI Rehabilitation Code matters because, although voluntary, it is widely used by insurers and claimant lawyers when settling personal injury claims. Since it is attached to the protocol that lawyers must complete before commencing litigation, it is hard to ignore.

It is fair to say that, in the sixteen years of its existence, the Code has enabled hundreds of thousands of claimants to receive treatment they might otherwise have been denied. Rehabilitation is practised particularly by Employers' Liability insurers and by some employers themselves. 

The principle behind the Code is very simple. An injured person wants, first and foremost, to make a full recovery - and it is in the compensator's interests for them to do so as this will lead to lower damages. Employers stand to benefit as it helps their staff return to work and so reduces absenteeism. That, at least, is the theory. Making it work in practice has inevitably been more complicated, and the current version of the Code dates back to 2007. Since then we have had the Jackson reforms and other significant changes to the dynamics of how personal injury claims are handled.

The new version, which goes live on December 1, brings the Code up to date. The most important changes are at the lower end  (£25,000 and below), which accounts for the vast majority of personal injury claims.

The new Code provides a streamlined process, to be conducted within the Ministry of Justice portal. It seeks to cut out unnecessary paperwork, disproportionately long medical reports and inappropriate treatment. Crucially, it recognises that claimants unable to return to work because of, say, minor soft tissue injuries require and should be allowed to arrange immediate treatment without having to wait for the insurer to give the go-ahead. The other side of the coin is that the compensator may challenge medical bills that it regards as excessive or unnecessary.

The Code stresses that the organisation commissioning treatment must be financially independent of the company providing it unless the other party agrees differently. Claimant lawyers have long been wary of rehabilitation providers owned by insurers.

For their part, insurers suspect that a minority of care companies with financial links to law firms are charging excessive prices for inappropriate and sometimes fictional treatment.

For the more serious injuries, the feedback received from all sides is that the existing Code is already working well. However, the new version stresses the importance of private-sector clinicians hired by insurers and employers collaborating with treating NHS staff. If this may seem just like common sense – and to be self-evidently in the interests of all parties – it does not always happen.

For all injuries, the new Code underlines the importance of ensuring that those who provide treatment are appropriately qualified and experienced and adhere to the necessary professional standards. This reflects the fact that a small minority of rehabilitation companies have been accepting work even when they do not employ staff suitably for the work required.

The changes outlined above have been warmly welcomed by the insurance market, the associations representing claimant lawyers and (with a few exceptions) by companies that provide case management and rehabilitation. However, the IUA-ABI Rehabilitation Working Party recognises that it may require tweaking and will be reviewing progress within the next six months.

As well as being acting Editor of Airmic News, Mark Baylis chairs the working party responsible for the Rehabilitation Code.

Mark Baylis