It is becoming increasingly worrying that the insurers are starting to argue that too much care and support runs the risk of creating a “dependency state” for an injured claimant, leaving them with a need for a higher level of care in the long term. This argument is tending to be seen more in those cases where the claimant has suffered a brain injury leaving them physically able, but with behaviour and cognitive deficits of varying degrees.
It has to be questioned whether this is just another financial argument being advanced by insurers in an attempt to reduce levels of compensation to those injured by the fault of another. More often I see in the letter accompanying an interim payment, a suggestion by the insurer’s legal representative, normally expressing the views of their appointed medical experts, that the rehabilitation and support package is to be carefully monitored so as to avoid the risk of creating a ‘dependency situation’ for the claimant.
But where is the evidence of this? Common sense dictates that to provide an injured party with a 24 hour care package when it is evident that such care is not needed would risk the injured party becoming dependent on others for day to day living. Otherwise there is no evidence an appropriately set up rehabilitation and support package creates a long term dependency.
It is unfortunate that this argument implies continuing mistrust of insurers towards claimant lawyers; the implication in the argument being that the purpose of setting up a care package for an injured party is just to create a higher compensation payment at the conclusion. That would be wrong and unethical and not purpose of care and support at all. Any solicitor who regularly undertakes high value work, where care packages are needed at an early stage, will know this. Care is provided at the level at which it is needed, but the problem lies in the fact that some insurers are unwilling, without a fight to pay for care at that level.
There should be a collaborative approach to these claims. That has to be in the best interests for all involved. However, some insurers need to be reminded regularly that care and rehabilitation programmes are about enabling, and not creating a dependency. Some claimants will need high levels of care and support for the remainder of their lives and this is evident from the outset. However, for others the care and rehabilitation programme is not about creating a dependency, but about enabling the injured party to reach their maximum levels of independence. Some insurers understand this and see that funding a good care and rehabilitation programme from an early stage, increases the chances of higher levels of independence in the future for the claimant. The insurers that take this collaborative approach will more often see successful rehabilitation.
However, other insurers cannot see beyond the dependency argument and cause delays in setting up rehabilitation programmes or prevent continuity of support by not providing continued funding. It is accepted that some claimants who receive appropriate rehabilitation may reach a stage where in the longer term all that is required is back up monitoring support; however for others, the nature of their injuries is such that they cannot have a decent quality of life without the day-to-day assistance. To take this away because it may create a mythical ‘dependency’ would be wrong and would leave the injured party with a limited and poor quality of life. Care and support is not just about getting up in the morning and functioning; it is about creating a decent quality of life for those injured.
I have been an injury and medical claims solicitor acting exclusively for claimants all my professional life. I am driven not only because I believe very strongly in fighting for those whose lives have often been irrevocably damaged by the negligence of another, but also because I believe compensation claims are not just about the money, but about making a difference for the better to an injured person’s life. Rehabilitation and support is a key part of that.