Rehabilitation – get involved early!

Rehabilitation – get involved early!

My experience as a serious injury lawyer

I am a solicitor specialising in seeking access to justice and rehabilitation for adults and children who have been seriously injured, including as a result of brain injury, spinal cord injury, amputation and complex orthopaedic and psychological/psychiatric problems. I have been working with people impacted by serious injury for the best part of 15 years.

I am very grateful to Nicola Weller at Circle Case Management for inviting me to be the first “guest blogger” for Circle’s new website!

In this blog I share some of my experiences which highlight the importance of getting rehabilitation in place for our seriously injured clients as early as possible.

The importance of considering rehabilitation needs early in the case

Two of the main codes relevant to rehabilitation are the 2015 Rehabilitation Code (to view the Code please click here) and the Serious Injury Guide.

Rehabilitation forms a major part of our work with seriously injured clients. Having a lawyer and case manager with the right expertise in serious injury is therefore crucial. Over the years I have taken over conduct of cases where rehabilitation has not been considered/implemented early or at all. It can then be difficult to put in place effective rehabilitation for a client several years after the injury. The opportunity for rehabilitation gains is missed and the client and their family are the losers.

So when I first contact an insurer or solicitor to discuss a claim I always consider my client’s rehabilitation needs. Generally I provide the insurer with an outline of my client’s injuries and their impact and seek their agreement to provide funding for an Immediate Needs Assessment (“INA”). I will already have given some thought as to which case manager(s) is (are) likely to be a good match for the client and/or the client’s family.

For each case I will consider whether it is in the client’s best interests to appoint a clinical case manager have a joint instruction under the Rehabilitation Code. Whilst my client has the final say, it can sometimes be helpful for the INA to be undertaken on a joint basis especially when liability enquiries are ongoing on both sides. A decision can then be made whether case management is undertaken jointly or not. There are no hard and fast rules and each case needs to be determined on its own facts. As a rule of thumb though, the more serious the injury and the more straightforward the liability issues, the more likely a clinical case manager will be appointed from the outset.

This does not mean that the insurer is excluded from the process. Some of the most successful outcomes for clients can be achieved where there is a high level of openness and collaboration between the parties. This greatly depends on the insurer’s approach and some are more open to joint collaboration than others.

Having decided the basis of the case manager’s instruction instructions are prepared.

I try to send the letter of instruction to the case manager as soon as possible, having already discussed the case and the key issues with them. If it is a joint instruction the Defendant’s representatives should contribute to those instructions.

As often as not limited information is available at the point of instruction. It can be helpful to commission a clinical report, for example from one of the treating team, to help us to understand the Claimant’s progress and any investigations and treatment that has been/will be undertaken, and the likely discharge date. If possible in the more complex cases, setting up a discussion with the case manager and the discharge team can be productive. Many clinicians understand the benefit a case manager and legal team can bring to the client – meeting needs that both the NHS and statutory services cannot.

Working in collaboration with defendants on rehabilitation needs

Once in I check the INA report to ensure all relevant points are covered, discuss it with the client and then contact the Defendant’s representatives to seek agreement for funding all recommendations our client wants. Collaboration here is key: I try to approach Defendants as soon as possible to discuss the report and next steps, so that rehabilitation can progress as quickly as possible. My experience of discussions with various case managers is that there are few things as frustrating as producing an INA report and then not receiving timely confirmation that they can proceed with the recommendations.

In my experience it is not unusual for Defendants to try to “hive off” certain recommendations and not provide funding for them. Sometimes this is understandable, when for example the recommendation is clearly not something that is related to the consequences of the injury(ies) and does not affect the overall rehabilitation. However, and having discussed this with a number of case managers over the years, it is often the case that a holistic approach is needed rather than attempting to address the various elements of rehabilitation in isolation. It can be helpful to discuss any areas of dispute with the case manager and, if needed, arrange a three-way call (with the case manager and the Defendant’s representatives) to try to find a way through the issues. I have found this to be particularly effective on cases where clients have a complex past medical history and/or where medical causation is unlikely to be straightforward.

Sometimes more controversial recommendations can be covered by way of an interim payment – which is also a good way or smoothing over any issues with the paying party, remembering that anything paid for by the insurer under the Rehab Code falls out of the litigation process so can never be challenged at a later date.

Frustratingly, there are occasions when Defendants refuse to engage with the Rehabilitation Code and the Serious Injury Guide (in timely fashion or at all). This is most likely to occur when liability issues are unclear and occasionally happens with a hard-nosed insurer who uses the report to assess the likely of the claim they may have to meet.

Whilst relatively rare, where this happens I need to assess how I can bring pressure to bear on an insurer to get them to play ball. This might include obtaining early medical evidence in order to demonstrate the need for rehabilitation and, if necessary, (and where certain legal tests are satisfied) threatening to or even starting proceedings to seek an interim payment to fund rehabilitation. Sometimes if a solicitor can realistically threaten to do so this will unlock funds.

Managing ongoing rehabilitation needs

Early intervention is key, but the spirit of the 2015 Rehabilitation Code and the Serious Injury Guide includes addressing claimants’ ongoing rehabilitation needs.

Regular and effective communication between the Claimant, case manager and Claimant’s legal representative is in my experience vital, including because:

· a Claimant who is actively involved in setting the rehabilitation goals is in my experience better equipped to engage with and progress during rehabilitation;

· it enables us as the lawyers to be able to provide meaningful updates to the Defendant’s representatives. In my experience, insurers are more likely to provide funding for rehabilitation where (a) there is a collaborative relationship with the Claimant’s solicitors and (b) they can see that progress is being made.

Planning ahead to ensure there are sufficient funds in place for the case manager’s recommendations is vital. Often in my experience case managers will provide costings for the next six to 12 months of rehabilitation. Where the recommendations are properly justified and costed, with clear rehabilitation goals set, the Claimant’s legal team can if needed use this to demonstrate to an insurer and, if necessary, a Judge why an interim payment should be made to enable rehabilitation to continue.

Get in touch!

Here is my Leigh Day profile:

You can contact me:

By telephone, on 0161 393 3600.

Or by email:

I am also on LinkedIn and Twitter (@andrew_zajac_PI).

Posted on July 9th 2021

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