Early Intervention The New Paradigm in CTP Claims Presented by - PowerPoint PPT Presentation

Early Intervention – The New Paradigm in CTP Claims Presented by Roberto Clemente, Partner

Introduction In an ideal world early intervention in CTP claims is optimum to health outcomes. Early intervention as a concept has gathered momentum in the CTP arena since the introduction of privatisation on 1 July 2016. From that date four well known insurers commenced provision of CTP Insurance in South Australia, namely AAMI, Allianz, QBE and SGIC. Advocates for early intervention from the insurance side of the fence would perhaps suggest that early intervention is stifled where claimants are legally represented due to a variety of factors including:  Lawyers impacting upon the ability of insurers to properly manage injuries;  Lawyers not encouraging recovery from injury and fostering over servicing;  Lawyers focusing on adversarial strategies rather than injury management. The reality is that the vast majority of plaintiff representatives seek to recover reasonable compensation for their clients at the earliest opportunity. Representation is now more important than it has ever been for claimants given the complexities of the current Scheme including the need for familiarity with:  Notice requirements under Section 126A of the Motor Vehicles Act 1959 (SA) (including the submission of an Injury Claim Form);  The Regulations to the Civil Liability Act 1936 (SA) (including the Schedule 1 Injury Scale);  AMA 5 (which is now a key component towards arriving at an appropriate ISV).

The Adversarial System The reality is that neither insurers nor lawyers are best placed to facilitate optimum health outcomes for claimants. This is best left to medical and allied health professionals. Lawyers and insurers are in the business of litigation. For lawyers, the best outcome is achieving the highest possible damages assessment for a client and for an insurer the best outcome would be to achieve settlements in as many claims as possible, based upon an ISV of 7 or less (assuming a potential claim for future loss of earning capacity). The objectives of lawyers and insurers are not congruent with those of early intervention. Unfortunately, in the last 21 months I have seen many poor health outcomes in the early stages of claims for various claimants. In my observation, this has been as a result of an overzealous and heavy handed approach by insurers, which often has no resemblance to a proper early intervention approach. Most of my days as a plaintiff lawyer are now heavily consumed dealing with issues arising from insurers failing to agree to attend to payment of reasonable treatment expenses on an interim and without prejudice basis or failing to agree to a reasonable request for an interim payment. In the alternative, approvals are often taking a long period of time, causing claimants considerable stress. Further compounding this problem are frequent requests from insurers for records and reports, which are often not directly relevant to the matters in issue, to approve simple forms of treatment (including physiotherapy, consultation with a spinal surgeon, radiological investigations, etc.).

The Adversarial System - continued As a plaintiff lawyer my ability to obtain agreement for payment of medical expenses and interim payments is being impacted upon by the daily bombardment of communications received from insurers (by telephone, letter and email) along the following lines:  Failure to satisfy the notice requirements for a claim where a medical certificate has not been obtained pursuant to Section 126A (2) (c) (ii) of the Motor Vehicles Act 1959 (SA), sometimes in cases involving serious injury where the injured claimant was hospitalised for a period of weeks;  Requests for pre-accident medical records where a simple request is made for approval for treatment with a specialist spinal surgeon (where there is no basis on the evidence for a causation issue to be raised);  Arranging of independent medical examinations in response to a request for funding of treatment such as participation in a pain clinic (where the medico-legal report will often cost more than the course of treatment);  Frequent requests for general updates in circumstances where it is not cost effective for the lawyer to provide such general updates (given there is no certainty that the thresholds for non-economic loss and future economic loss will be met);  Arranging of Activities of Daily Living Assessments in response to a claimant seeking reimbursement for a handful of cleaning and gardening expenses (with the cost of the assessment far exceeding the cost of the expenses being claimed). Due to time constraints, the above is not an exhaustive list of difficulties that plaintiff lawyers confront on a daily basis in attempting to secure interim benefits for their clients.

The Adversarial System - continued There is presently an unhealthy focus by insurers upon pre-accident medical records and independent medical examinations as providing the necessary evidence for what is reasonably required by a claimant. Often several months will pass whilst this evidence is being gathered before answers are provided to reasonable requests. This leads to delay in stability of injuries, the ability for an ISV assessment to be conducted and for final damages to be assessed. Many claimants have a very good treatment team in place (including general practitioners, physiotherapists, orthopaedic surgeons and psychiatrists). Often, the opinions of these treating experts are ignored and non-directly relevant records are requested and independent medical examinations are arranged, before consideration is given to approving treatment. Often it appears to me that the insurer is doing nothing more than buying time. This approach often leads to stress, anxiety and importantly a delay in the progress of a claimant towards stability. I raise the above out of concern for the unnecessary costs been generated, both in terms of excessive communications and costly expert reports being generated, where often the exposure of the insurer would be the same or less by simply approving reasonable treatment (supported by the claimant’s medical and allied health treatment providers). It should not be overlooked that when an insurer approves funding for treatment it is generally on an interim and without prejudice basis, and if a genuine issue relating to causation later becomes apparent, the insurer could seek a credit in relation to payment of non-accident related treatment expenses.

Case Example 1  Male claimant aged in his late 30’s.  Employed as a Full Time Panel Beater at the time of the accident.  As a result of a rear end accident he has sustained injuries including at the C6 level of the cervical spine.  The claimant suffers a knife like feeling between the shoulder blades, tingling involving the left thumb and index finger and pain at the back of the head.  The claimant was referred to a neurosurgeon and funding for this was not agreed to by the insurer and treatment could not proceed as the claimant could not afford the private consultation.  The claimant has been totally incapacitated from employment since the collision in May 2017.  The claim is now very much at a stalemate due to the insurer’s refusal to fund treatment with the neurosurgeon.  The insurer has instead offered to fund an exercise programme, in circumstances where such treatment would appear to be totally inappropriate and inconsistent with the recommendations of his treating doctors.

Case Example 2  This case involves a male claimant aged 45 who was involved in an accident in July 2016.  He has sustained multiple injuries including an L5/S1 annular tear, L4/5 lateral disc protrusion and a cervical spine injury.  His general pre-accident health was excellent.  Prior to the accident he had worked with a metal fabrication company for more than 20 years. His pre-accident employment role was as a team leader and his duties involved lifting, cleaning metal, stacking and forklift driving.  As a result of his injuries he has not been able to return to work due to the fact that his pre-injury employer will not accept him back at work unless he can perform full and unrestricted duties, which is not possible with his physical restrictions.  It is likely that his pre-accident employment will shortly be terminated due to the longevity of the period of incapacity.  The claimant has recently been referred to a specialist for the purpose of rhizolysis and funding for this treatment has been refused by the insurer.  Furthermore, the insurer has also recently refused a request for an interim payment, despite the claimant not having worked for his pre-accident employer since December 2016.  The difficulty this claimant faces is that his claim cannot progress until his injuries are stabilised (after the completion of his treatment) and his work capacity is unlikely to improve without further treatment.  The insurer is refusing to fund further treatment and an interim payment as they are of the view there is insufficient medical evidence to confirm that the claimant’s injuries and ongoing incapacity for work relate to the subject accident (despite there being a significant body of evidence suggesting otherwise).