Effects and symptoms of brain injury
Matthew Tuff | 05.03.2019
11.01.2018 Miranda Clarke
When someone has suffered major trauma it’s a very traumatic time for them and their family/friends. Most people are unaware of the treatment or other means of rehabilitation available to them; this is one of the main benefits of instructing a Solicitor specialising in major trauma claims to pursue a claim against the “at fault” insurer.
A Solicitor is able to meet with you and your family members and discuss your needs and how they can support you; this is the best way of assessing an injured persons needs. In addition, this will reduce the stress of a person having to fight for rehabilitation and allow them to concentrate on their recovery.
The NHS usually has long waiting lists and it’s not always adequate to meet all the rehabilitation needs of every injured person. The aim of a Solicitor is therefore to promote the use of early intervention for rehabilitation, so the injured person will make the best and quickest recovery.
Accessing rehabilitation will depend upon a number of factors, including the extent of your injury, whether your opponent is insured to fund rehabilitation, and whether they will accept responsibility.
Whilst it is possible for the injured person’s solicitor to approach the insurer for a general interim payment to fund rehabilitation, it is often more advantageous to the injured person to access The Rehabilitation Code 2015 (the “Code”) which will be the focus of this article.
The purpose of the Code is to provide a framework for personal injury claims within which the injured person’s legal representatives and the “at fault” insurer’s can work together.
The injured person’s solicitor must identify whether they would benefit from early intervention, rehabilitation and medical treatment; the duty is ongoing throughout the case but is most important in the early stages. There are 10 markers referred to in the Code which should be taken into consideration when assessing the need for rehabilitation:
2. Pre-existing physical psycho-social co-morbidities
3. Return to work/ education issues
4. Dependants living at home
5. Geographic location
6. Mental Capacity
7. Activities of daily living in the short term and long term
8. Realistic goals, aspirations, attainments
9. Fatalities / those who witness major incidence of trauma within the same accident
10. Length of time post-accident
The Code states the need for rehab must be assessed by an independent case manager. The parties should try and agree an appropriate case manager who will carry out an assessment of the injured person and provide an INA (Independent Needs Assessment) report. In most cases a case manager is a Registered Nurse, Physiotherapist or Occupational Therapist with many years experience of working in the area of the persons injury. For example, you would expect an injured person who has suffered a brain injury to be assessed by a case manager with extensive experience of working with those who have lived with brain injury.
If responsibility is disputed/ undecided, the Code allows the injured party to access rehabilitation at the early stages, which are most crucial. The Code also ensures the injured person receives rehabilitation without the need to refund the Insurer if a responsibility decision is made against them.
The main focus is to ensure the injured person is placed at the centre of everything which is done to ensure the best outcome is achieved.
A passenger, aged 23, is involved in a road traffic collision, suffering major trauma including a mild brain injury, fractured spine, fractured shoulder, fractured wrist and fractured hand. The passenger had emergency treatment at an NHS Hospital and was then discharged home. The passenger’s solicitor secured from the “at fault” insurer funding under the Rehabilitation Code 2015 for the passenger to have private surgery, physiotherapy, adaptations to their home, equipment, counselling, and supported return to work.
The passenger had not been wearing a seatbelt. The expert medical evidence in the litigation was that the passenger would have suffered less serious injury had a seatbelt been worn because the passenger’s upper body would have been braced against the seat instead of left to fall forward into the dashboard where most of the injury was sustained. The passenger is at risk of having her final award of compensation reduced by 15% to reflect contributory negligence for failing to wear a seatbelt [as per Froome –v- Butcher 1976]. However, because the insurer has funded the rehabilitation under the Code they cannot recover any money from the injured person relating to the agreed rehabilitation. This would be a very important outcome for the passenger.
Rehabilitation is a crucial outcome for making an insurance claim if you have suffered major trauma through no fault of your own and, therefore, the choice of the solicitor handling your claim is an important one.
Miranda Clarke is a Paralegal at Moore Blatch LLP who are a leading UK firm of solicitors specialising in accessing rehabilitation for those who have suffered major trauma. Moore Blatch LLP is the winner of the Rehabilitation First 2017 award for client service.