Rehabilitation treatment expenses and the whiplash reforms

On the other hand, the more things change the more they stay the same

The industrialisation of rehabilitation treatment costs, particularly physiotherapy, has significantly increased indemnity spend in low value motor injury claims for a number of years now. Indeed, it has been more a case of spotting the claim for whiplash and other soft tissue injuries presented in the MOJ portal that did not include the expenses of physiotherapy treatment, rather than identifying those claims that did.

The arguments about the application and requirements of the Rehabilitation Code for Lower Value Injuries as well as the amount of detail required on invoices has been thoroughly rehearsed by all claims stakeholders. Links between legal representatives and treatment arrangers and the appropriateness of those associations have been investigated and, where necessary, reported. Moreover, almost all insurer compensators have their own bespoke strategies to validate and mitigate the costs of rehabilitation treatment claimed.

The intention behind the whiplash reforms was to reduce motor injury claims costs and pass on those savings to consumers purchasing motor insurance. So whilst everyone acknowledges the benefit of rehabilitation treatment, when necessary and proportionate, the question is what has been the impact if any of the whiplash reforms on the presentation and cost of rehabilitation treatment?

The OIC portal

References to rehabilitation treatment are limited in the RTA Small Claims Protocol and the OIC portal.

Paragraph 5.15 of the protocol says that the claimant will be asked when completing the small claim notification form (SCNF) whether they have been advised to seek further treatment such as physiotherapy for their injuries. The answer to the question will enable the compensator to decide whether to offer the claimant access or funding for further treatment or therapy.

The SCNF asks the question: “Did the claimant seek any medical attention as a result of their injuries, who did the claimant see, and did they recommend any further treatment such as physiotherapy?” However, this appears to presume that the claimant will already have received some medical attention and that is often not the case.

In question and answer sessions with the MOJ it has been confirmed that the unrepresented claimant cannot use the OIC portal to access rehabilitation services and the compensator who has accepted liability may offer rehabilitation treatment where appropriate.

The ‘Guide to Making a Claim’ advises the claimant that if treatment has not started then they may want to contact the compensator to discuss whether they can arrange this and, if not, to retain receipts for treatment such as physiotherapy.

This approach makes sense if the claimant is unrepresented as it gives the compensator an opportunity to arrange and fund any treatment recommended by a triage report. However, if the claimant is represented the process of triage to capture the rehabilitation treatment is likely to have already happened before the SCNF is submitted. This means that the provision of treatment is managed by the representative outside of the RTA Small Claims Protocol and OIC portal. The only interaction is that the expenses of the same are presented in the OIC portal for agreement or challenge by the compensator.

Otherwise, the process of rehabilitation treatment and its associated costs is outside of the regulatory whiplash reforms.

So, has anything really changed since the whiplash reforms and, if not, where next?

Business as usual

Despite the implementation of the whiplash reforms it is still a case of ‘as we were’ for injury claims and overlaying rehabilitation treatment expenses.

Although the MOJ did look at signposting rehabilitation treatment in the OIC portal, it was confirmed by the MIB that the process for a represented claimant would be “as now”.

Indeed, it can be argued that with increasing severity of injury profiles through the presentation of additional minor injuries the frequency of physiotherapy delivery with its associated costs will actually increase. Even with an established process for bodily injury intervention, compensators can only capture a small proportion of rehabilitation treatment. A represented claimant is triaged by the rehabilitation arranger within a few days of the accident and recommended treatment begins shortly after, leaving the compensator with only a small window in which to intervene.

Moreover, frequency of rehabilitation treatment may not stop here.

With minor psychological injury such as stress, anxiety, and fear of travel now captured by the whiplash injury tariffs, the opportunity to inflate compensation for this element of the injury is reduced. Overlaying claims expenses with the delivery of medical expert recommended psychological treatment may now be even more commercially attractive for the claimant representative.

So, will we begin to see an industrialisation of cognitive behavioural therapy or other forms of ‘lite’ therapy treatment with their associated claims costs for minor psychological injury because of the whiplash reforms?

The propensity for the first medical expert to recommend treatment and/or expert psychological reports for minor psychological symptoms will need to be tracked and monitored using data to identify trends, deploying know your opponent solutions and validation processes.

Where next?

There is still no timetable for the Government Response to Part 2 of the Consultation and Call for Evidence on Personal Injury Reforms to include the provision and cost of rehabilitation treatment. The consultation examined various proposals, including the use of rehabilitation vouchers, sole funding by the compensator, expansion of MedCo and fixed treatment costs, all of which have positives and negatives.

Presently there is no government appetite to join up the OIC portal with MedCo for rehabilitation treatment or for a portal in build that is transparent for both claimant and compensator. Further, there is no suggestion that processes will be embedded in the Civil Procedure Rules and Pre-Action Protocols any time soon. This leaves the Rehabilitation Code as the only ‘guide’ to how rehabilitation treatment should be approached in lower value claims. Finally, in order to deliver real cross-industry change, significant market evidence of any ‘foul play’ may be required, but this will be difficult to promote accounting for the differing positions of stakeholders.

Although discussions between industry groups continue about acceptable practice standards, required reports, pricing and a governance framework, there is no firm consensus yet for a solution that can be accepted by all stakeholders..

So where are we now?

Despite the implementation of the whiplash reforms, which have been the biggest structural and regulatory change to motor low value injury claims for a generation, the presentation, frequency and cost of rehabilitation treatment claims remains unaffected and unlikely to be subject to real change any time soon.

When it comes to rehabilitation treatment expenses, is it just a case of the more things change the more they stay the same?

For more information, please contact Mark Hall.