The most fundamental issues surrounding rehabilitation are who pays, how soon can it start and how long it will last for.
Because “legal fault” in serious injury cases can take time to work out and because the importance of rehabilitation is widely known, the 2007 Rehabilitation Code was brought in to assist claimant and defendant solicitors address the legal issues that arise when an injured party requires rehabilitation.
About the Rehab Code
The objective of the Code is to promote the use of rehabilitation and early intervention in the compensation process so that the injured person makes the best and quickest possible medical, social and psychological recovery. The Code is voluntary, however the Civil Court Personal Injury Pre-action Protocol provides that its use should be considered for all types of personal injury claims.
Important features of the Code:
- The claimant is put at the centre of the process
- The claimant’s lawyer and the compensator (usually the insurer) work on a collaborative basis to address the claimant’s needs, from first early notification of the claim and through early exchange of information
- The need for rehabilitation is addressed as a priority and sometimes before agreement on liability (i.e. legal fault). Fixed time frames support the Code’s framework
- Rehabilitation needs are assessed by those who have the appropriate qualification, skills and experience
- The choice of rehabilitation assessor and provider should, wherever possible, be agreed by the claimant lawyer and the compensator
- Initial rehabilitation assessments can be conducted by telephone or personal interview, according to case type and the resulting report should deal with matters specified in the Code
- The claimant is not obliged to undergo treatment or intervention that is considered unreasonable
- The compensator will pay for any agreed assessment of rehabilitation needs and must justify a refusal to follow the rehabilitation recommendations
- The initial rehabilitation assessment under the code is outside the litigation process, and cannot be used by either party subsequently
- Where rehabilitation has been provided under the Code, the compensator will not seek to recoup its cost, if the claim later fails in whole or in part.
- Duty to consider from the earliest practicable stage in consultation with the claimant/family and f appropriate treating physicians
- Give earliest possible notification to compensator of the claim and need for rehabilitation
- Where the need for rehabilitation is identified by the compensator, the claimant solicitor shall consider this immediately with the claimant and/or the claimant’s family
- Shall equally consider and communicate at earliest practicable stage whether the claimant will benefit from rehabilitation
- Where the need for rehabilitation is notified to the compensator by the claimant solicitor, the compensator will respond within 21 days
- Consider choice of assessor and object to any suggested assessor within 21 days of nomination
- Immediate Needs Assessor
- Assessment to occur within 14 days of referral letter. Provide report simultaneously to parties
- Pay for report within 28 days of receipt
- Respond substantively to recommendations to claimant solicitor within 21 days of receipt of report
In the appropriate cases our specialist Serious Injury Lawyers support the use of the Rehabilitation Code.