CRPS and the Rehabilitation Code
Rehabilitation refers to the process of restoring someone back to health and – as far as possible – to a normal life through therapy and training. As with many conditions, the early treatment of CRPS offers the best chance of improvement. However, the NHS and local authority providers are under-resourced, often resulting in the slow and disjointed availability of treatment – medication, physiotherapy, psychotherapy and occupational therapy. For this reason, as a matter of priority, solicitors should explore obtaining rehabilitation funding to ensure the best outcome for clients.
Getting blood out of a stone was traditionally easier than obtaining early rehabilitation funding from a defendant insurer. Funds were forthcoming only if:
- the insurer conceded liability (fault) for the accident; and
- medical evidence persuaded the insurer that the treatment was reasonable; and
- the cost was reasonable; and
- the same or similar treatment/therapy was unavailable through the NHS without undue delay.
The simple fact is that obtaining expert medical evidence takes time. Waiting lists of several months are quite usual for the best experts. And that’s instructing them privately! Of course, this means that when medical evidence eventually materialises, the optimal time for rehabilitation may have passed.
Accordingly, the creation of the Rehabilitation Code encourages the parties to work to address a claimant’s rehabilitation needs collaboratively. The Code should be considered at the outset of all personal injury claims.
The Rehabilitation Code 2015
The Rehabilitation Code 2015 “provides a framework for the claimant solicitor and compensator to work together to ensure that the claimant’s health, quality of life, independence and ability to work are restored before, or simultaneously with, the process of assessing compensation.”
Disputes over liability can also cause substantial delay or mean that interim funding for any purpose is unavailable. The Rehabilitation Code addresses this problem as follows:
“Where there is no agreement on liability, the parties may still agree to use the Code. The health and economic 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 should consider from the outset whether there is a possibility or likelihood of at least partial admission later on in the process so as not to compromise the prospects for rehabilitation.”
Obtaining an immediate needs assessment is the first stage in the rehabilitation and case management process in most serious injury claims. That includes where a claimant has developed CRPS.
What is an immediate need assessment?
An immediate need assessment (INA) is a comprehensive, face-to-face, holistic evaluation of the claimant conducted by a medical or rehabilitation professional under the Rehabilitation Code. An INA takes place in the claimant’s home and assesses the impact of their condition on all aspects of their life, including:
- Personal care
- Family needs
- Employment
- Transportation
- Education and training requirements
- Social interactions
In the INA, the assessor identifies the claimant’s immediate physical, psychological, and social needs.
Who carries out an immediate needs assessment?
The assessor is usually an experienced case manager with a professional nursing, physiotherapy, or occupational therapy background. As they are appointed under the Rehabilitation Code, their role is neutral, receiving their instructions jointly from both parties. The parties are encouraged to agree on the name of the assessor (or their organisation) and the topics to include in the joint letter of instruction.
Payments under the Rehabilitation Code
Payments made by the defendant under the Rehabilitation Code are made outside the claim. As such, they are not deducted from the final damages (compensation) figure, as happens with interim payments.
In most cases, ongoing case management ensures that the INA recommendations are carried out and that the claimant’s needs are reviewed regularly.
Among the recommendations I have received in an INA are:
- physiotherapy/occupational therapy;
- visiting podiatry;
- a taxi account for transport;
- training courses/remote study;
- various aids and equipment to assist with daily living;
- major property adaptations;
- mobile hairdressing; and
- cognitive behavioural therapy (CBT) for the claimant’s spouse – their primary carer.
INA providers often recommend further specialist assessments to consider vocational training, academic tutoring and various potential treatments and interventions.
The compensator must consider the recommendations and the extent to which funds are made available to implement them. However, a claimant is under no obligation to undergo treatment. Equally, the insurer is not required to pay for treatment they consider unreasonable in nature, content, or cost. But they must provide their reasons for withholding funds.
If the insurer disagrees with one or more recommendations, “general interim payments are recommended to provide continuity of services with an understanding that recovery of such sums is not guaranteed and will always be a matter for negotiation or determination by a court.”
The INA, any correspondence related to it and any notes created by the assessor are not disclosed in any court proceedings unless the parties agree. However, any notes and reports created during rehabilitation are disclosable documents and/or medical records within the proceedings.
What’s in it for the insurer?
In complex cases such as those involving CRPS, the INA process gives the compensator an early insight into the claimant’s condition and circumstances, allowing them to ensure that:
- the claim is given the appropriate time and resources from the outset, and
- enabling them to set a meaningful reserve on the claim (i.e. a worst-case scenario regarding their potential outlay).
However, there’s a bigger picture. Allocating funds early on to ensure that the claimant receives optimum treatment and support can, ultimately, save the insurer hundreds of thousands of pounds. For example, prompt intervention may tip the balance towards the claimant returning to paid employment or otherwise help reduce the extent of their limitations.
Is there a downside for claimants?
There’s always a risk that an insurer only engages in the Rehabilitation Code to gain an advantage in the litigation. For example, the insurer might agree to an INA but refuse to fund any recommendations. In doing so, they obtain as much information about the injured claimant as possible. Then, armed with that information, they formulate an offer, never intending to follow through with the rehabilitation on which the Claimant relies.
However, from my experience, in most situations, insurers engage in the rehabilitation process in good faith. They want to see the claimant improve to save significant sums of money in compensation in the long run.