Reducing the number and cost of whiplash claims

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1 mnn Reducing the number and cost of whiplash claims A consultation on arrangements concerning whiplash injuries in England and Wales Introduction: Weightmans is a major law firm with a large defendant practice, handling motor claims for many insurers and businesses. Lower value personal injuries claims (mainly whiplash type injury claims) following a road traffic event are a major area of spend for motor insurers it is estimated that personal injury claims overall account for around half of the total claims spend by motor insurers. It is important that genuine claimants making lower value injury claims receive prompt and fair compensation. Equally there needs to be a cost effective and transparent process to enable suspect injury claims to be contested and defended. A report from the Actuarial profession on 21 June 2012 called Update from the Third Party Motor and the PPO Working Parties showed : Accidents giving rise to third party claims are on the decline, with 2011 showing a drop of 11%, the biggest for 5 years but Third party bodily injury (TPI) claim frequencies increased by 5% in The ratio of third party damage claims containing a personal injury claim has been increasing over the period with an increase of 18% from 2010 to 2011, the biggest over the period. This rise is attributed to the activity of Claims Management Companies, producing increased costs to insurers in excess of 400m, impacting premiums. Geographical hotspots of third party accidents with bodily injury claims - mostly in the North West and West Midlands, in particular Liverpool, Manchester and Birmingham. One trend that did continue from 2010 is that the worst area of the UK for TPI claims, the North West, overtook the worst areas of the US in terms of the proportion of accidents involving a bodily injury claim There was a 9% increase in the average cost of small third party bodily injury claims Third party damage claim amounts increased by 12.5%, a significant rise from The current planned civil litigation reforms including changes to recovery of additional liabilities, extension to the RTA PI Scheme and the introduction of Fast track fixed fees will help to reduce the cost of lower value RTA personal injury claims, but as the Consultation recognises, there is room to do more. Whilst the 10% uplift on General Damages was accepted as part of the overall Jackson package of reforms, the recent Judicial College Guidelines created an unexpected upward pressure in the cost of injury claims. Earlier Judicial Studies Board updates have generally increased guideline settlement awards by around 2 3%, but the latest edition proposes increases in pain, suffering and loss of amenity awards (PSLA) of 8 9%. Lower value injury awards comprise mainly sums for PSLA, so this unexpected increase will impact disproportionately on the type of claims covered by this consultation. MI from the current RTA Portal shows that the average PSLA award on settled RTA PI Scheme cases is just under 2000 so this unexpected increase will add ~ 150 to the cost of each settlement, with a larger figure for lower value injury cases settled outside the RTA PI Scheme. Against this background, the only lever left to pull to reduce the cost of these lower value injury claims that should be paid is claimant legal costs. An increase in the Small Claims Track limit to 5,000 is supported however given the raft of

2 reforms already underway, the timeline for any further change must be carefully forward planned and shared, to ensure that all parties, not least potential claimants, have time to prepare. Better Medical Evidence: The issues and concerns identified in the Consultation are recognised and shared. The concerns around independence are magnified where the medico legal agency is either fully or partly owned by a claimant legal practice or ABS structure. In the majority of personal injury claims, access to the medical expert is via the medico legal agency. Whilst the Medical Reporting Organisation Agreement 2012 contains fees for reports, the suggested figures are increasingly being ignored with higher fees sought a modest part of the fee goes to the expert (estimated at around 25 30%), with most of the balance funding fees payable by medico legal agencies to claimant lawyers for the cases referred. There is a need to improve the value that medico legal reports bring to the injury claim process in terms of content, pricing and independence. However any such improvements fail to address the fundamental issue of the absence of an objective, evidence based medical examination process ( that meets the required legal standards) to diagnose the existence of any whiplash type injury. As such any improvements will be overlaid onto an inadequate medical examination process that substantially relies on claimant self reporting re both the index event, pre accident health and post event symptoms. A whiplash type injury is a neck sprain with the incidence of neck sprain common within the general population triggered by a variety of non road traffic events. Where a neck sprain is attributable to a road traffic accident, medical research shows that the majority of people recover in a matter of weeks, rather than the elongated prognosis periods routinely seen in medico legal reports. Qu 1 : Do you agree that, in future, medical reports for whiplash injury claims should be supplied by independent medical panels, using a standard report form, and should be available equally to claimants, insurers and( for contested claims) the courts? The Consultation suggests that independent medical panels should be a register of accredited medical practitioners approved to assess claimants suffering from possible whiplash injuries arising from a road traffic accident. Two leading medico legal agencies, currently controlling around 50% of reports, have developed a two part accreditation scheme for experts on their panel. Part one concerns the expert s duty to the court with part two focussing on the expert s awareness of the latest relevant medical literature regarding whiplash type injuries. A product has been developed that seeks to separate the procurement process from the expert report, with an underlying medical expert supply base all guided by a not for profit independent association. The need for independence is paramount and should be addressed separately from accreditation see question 3 below. Many medical reports obtained in support of lower value injury claims are very formulaic in nature - this is in part due to the fact that the reports are structured so as to feed case management and other IT systems and it is important that the efficiencies that are available here are not lost. This is particularly so if in the future a predictable damages tool was to be developed see question 6 below. However there is an opportunity to review the content of the report(s) to ensure that all questions or activities asked or carried out by the expert are relevant and truly add value to the claim and enable settlement. The report should identify the nature of any medical help obtained by the claimant in the early days after the accident and the medical expert should be asked to consider whether he would benefit by seeing the claimant s medical records. The medical examination process provides another opportunity to confirm the identity of the claimant and technology exists to readily exchange photographic images as part of any medical report. The report should also be written in such a way that the claimant can easily understand (and agree) the content. These standard reports should be the norm on lower value injury cases, with a value likely to fall within any increased Small Claims Track limit. The reporting templates should cover the medical disciplines most commonly seen on lower

3 value injury claims including whiplash type injury claims this should include psychological reports, with a generic reporting template for any other non common disciplines. If reports could be sourced from an independent panel, with suitably accredited experts, using standard reports, they should be deemed to be accessible to and fit for purpose for use equally by a claimant, a defendant, any lawyer involved in the process or the court and any concerns around the party sourcing the report should fall away. Qu 2: If not how would you address the problems listed at paras above? See the answer to question 1. Qu 3: Which model should be used for the independent medical panels Accreditation, national call off contract or some other variant? Under the accreditation model, the Government would establish the standards for accrediting the experts and would appoint, via tender, an organisation to run an accreditation scheme. Individual experts, groups of experts or Medico Legal Agencies could apply for accreditation. Whilst an accreditation process allied to standard reports has the potential to improve the quality and value of the expert reports, it would not seem to address the key issue of the need for independence, to tackle the perceived problems around dependency and ownership within the various relationships between experts, Medico Legal Agencies and claimant lawyers. Under a national call off contract, the Government would work with key stakeholders to develop the criteria for a national framework contract (which should include quality accreditation and standard reporting criteria). Medical organisations, (and potentially individual experts) would be invited to bid to be placed on a list of approved suppliers under the contract. This option would seem to better address the fundamental need for independence with greater transparency around supplier selection. The contract could be managed by a not for profit board, made up of key stakeholder representatives (akin to the Claims Portal Co Ltd Board) to include ongoing oversight of accreditation and reporting requirements. The Board should include one or more health professionals. The Board should also review the performance of approved suppliers against performance criteria to be agreed, leveraging where possible the software solutions in the medico legal reporting process to access required MI. Qu 4: Do you consider that an element of peer review should be built into every assessment, or only for a sample of assessments for audit purposes? To assure the independence and integrity of any new process for securing medical expert evidence, some element of peer review would be beneficial but this would have to be delivered at an appropriate cost, signalling a sample based approach. Requiring a claimant to be examined by more than one doctor at different times solely for audit purposes feels inappropriate. Having the claimant examined by separate experts but at the same time and place may prove logistically difficult. The information that the not for profit board gathers on supplier performance could be used to analyse trends and variations from the norm, for example around diagnosis or prognosis periods these suppliers could then be subject to greater focus including having an experienced medical assessor present at a random selection of future examinations. Agreeing to an audit process would form part of the accreditation criteria. In theory a robust selection process should obviate any risks perceived as attaching to ownership (full or partial) of a medico legal agency by a claimant lawyer form or ABS structure.

4 Qu 5: How should costs be dealt with and apportioned? There should be a fixed fee payable to expert based upon a standard report and this should apply across all reports produced in connection with lower value injury claims, including whiplash type injury claims. Dependent upon the standard questions/activities required to be carried out by the examining expert, the fixed fee payable to the expert may be higher than the current fees received by the expert. Any costs associated with accreditation (initial and ongoing) should be borne by the party carrying the accreditation i.e. the individual expert and if appropriate the Medico Legal Agency. If the sourcing party wishes to use a Medico Legal Agency to secure an expert report an uplift to the fixed fee should be payable to enable the Agency to deliver a profitable administration service. The Consultation does open up the question as to the ongoing role of Medico Legal Agencies. Whilst they are part of the current problems, they have also enabled an efficient delivery model for claimant lawyers and insurers and these efficiencies are valuable. A substantial part of the current medical report fees payable are used to fund referral fees, which will be banned after 1 April. With fixed fees set as above, the residual could be used by Defendant insurers to pay a modest sum per case to fund the not for profit body managing the national call off contract. The goal should be to deliver these changes within the current capped GP fee levels within the MRO Agreement Where the insurer sources the medical report, the fee should be paid direct to the supplier on receipt of the report, ensuring that any self represented claimant is not exposed to the need to fund such disbursements. Better Incentives to Challenge Fraudulent or Exaggerated Claims: It is important that genuine claimants receive fair compensation quickly. Equally though defendants should have a cost efficient process to contest and/or defend suspect claims. Qu 6: Should the Small Claims track threshold be increased to 5,000 for RTA related whiplash claims, be increased to 5,000 for all RTA claims, or not changed? The Small Claims Track limit should be increased to 5,000 for all RTA personal injury claims, with the definition of personal injury in CPR Part 26.6 (2) retained. The interface between the increased personal injury limit and the main Small Claims Track limit of 10,000 (post 1 April 2013) should be clearly defined. Any increase in the Small Claims Track limit to this level should be accompanied by a simple and easily accessible process that a claimant in person could use, and which should be the universal process for all motor insurers. The current RTA PI Scheme could be adapted for use by a claimant in person. An adaption of the current Claim Notification Form (CNF) could be used by a claimant in person to easily and securely notify a claim to the relevant motor insurer. The claimant should have access to the Motor Insurance Database (MID) (free of charge?) to identify the appropriate insurer to select within the Portal. Suitable consumer education material could be developed building on current material available about the Small Claims Court process in various media from various government and consumer bodies. This material could include a guide/tool to help the potential claimant to identify whether his claim would fall within the Small Claims Court limit. Claimant lawyers already use tools to enable a potential client to see how much money they could claim. The guidance should clearly set out the steps that an insurer should undertake as part of handling the claim along with clear timelines so that the claimant in person is clear what should happen when, to include a process for non compliance. The CNF would be sent to the insurer who would use existing triage processes to consider the claim. On genuine cases, the insurer would send an admission of liability to the claimant and the insurer/defendant would then pull together a

5 settlement pack to include a medical report(s) sourced via the new process outlined above and any other losses. The pack would be sent securely to the claimant via the Portal to include a settlement offer. The claimant should have the opportunity to make a counter offer. If the claim does not settle it should move straight into an adapted version of the current Stage 3 process within the Small Claims Track, with the option of either a paper or oral hearing, with the judge invited to make a ruling on the basis of the Stage 3 pack. On genuine cases involving a liability issue, the above process could still be used with the insurer gathering any liability evidence to send to the claimant as part of the settlement pack, clearly outlining the basis of any reduced offer. Again the Stage 3 pack could be used as the basis for any Small Claims Track hearing, written or oral, making the process easier for the claimant. On liability admitted cases, the at fault driver is unlikely to agree to attend any oral hearing so an insurer representative or lawyer would represent the defendant driver, creating potentially inequality of arms for the claimant in person at this stage, but the Small Claims Court is experienced in dealing with such situations. This inequality could also potentially arise on a liability dispute case. A key question to consider is whether there is a role for claimant lawyers within the Small Claims Court process. Claimant lawyers may seek to agree contingency fees with claimants and deriving per case income on a par if not greater than currently proposed fixed fees. Before the Event legal expenses insurance offers another route to secure legal representation covering potentially both legal and any unrecoverable disbursement costs. A major risk lies around Claims Management Companies (CMC) entering the market place, operating on a contingency fee model, impacting claim frequency. If the claim process though is clear and easy to use, there should be no need for the genuine claimant to use either a CMC or a lawyer, thereby retaining all of their damages. An alternative to such contingency fees could be to provide for a very modest payment - ~ for a lawyer or a barrister (perhaps via a national panel) to vet the Stage 2 settlement pack to ensure that the settlement offer made by the insurer is appropriate. Motor insurers are used to dealing with unrepresented claimants as a result of the operation of Third Party capture Schemes. The ABI has published a Code of Practice to guide insurers in this area. Injury claims from claimants in person would be valued using current insurer practise. As a future development, an agreed market wide tariff of settlement values could be implemented, either on a paper basis or via a more sophisticated predictable damages tool, but if the settlement values were linked to court awards (as opposed to negotiated settlement levels) this would add around 10% to award costs but a predictable damages tool should reduce the case for a vetting process. Whilst the above process would work for genuine claims ( including those with a liability dispute), more thought needs to be given as to how suspect cases could be accommodated within an increased Small Claims Track limit. Suspect cases come in various shapes and guises from causation arguments on low speed impact cases through to staged and contrived accidents. The claimant should be notified by the insurer that it is not the intention to progress the claim in line with the published Portal process. The claim would then be handled in line with the insurer s normal handling practices. There should be no requirement to plead fraud but the insurer should indicate that concerns exist and outline the nature of those concerns. Where an individual case falls within Small Claims Track limits but forms part of a much bigger fraud ring, the case should be aggregated with others for allocation to the Multi Track as appropriate. Current Small Claims Court processes should be reviewed to ensure that they could accommodate the hearing of suspect cases e.g. the ability to adduce expert evidence without the permission of the court. Otherwise, current cost recovery rules/limits should be retained for any case heard in the Small Claims Track save that the fee for expert reports may need review.

6 Suspect cases will require the (alleged) at fault driver to attend any court hearing along with the claimant. The insurer may also choose to have a representative or lawyer attend court producing a potential inequality of arms, but judges in the Small Claims Track are used to dealing with such situations. As part of the allocation/directions process, where the court considers that the nature of the dispute and the expert and/or lay evidence proposed is such that it is inappropriate for a Small Claims Track hearing, the case should be allocated to the Fast Track notwithstanding that the value of the claim is < 5,000, with no escalation of to the Multi Track permitted and with costs restricted to those payable under Annex B. This should be the exception rather than the norm, particularly where the claimant does not have a legal representative, to help tackle and bring about a reduction in neck sprain type injury claim volumes. Qu 7: Will there be an impact on the RTA Protocol and could this be mitigated? The Pre Action Protocol and any forms could be adapted to enable easy usage by a claimant in person. Development work would be needed to enable usage of the Portal by a self represented claimant and this would require an appropriate lead in time. The current Portal, covering RTA cases between 1,000-10,000 was developed via funding paid for by motor insurers, with ongoing per claim costs also paid by motor insurers. Development work to accommodate RTA personal injury claims between 10,000-25,000 is also being funded by motor insurers who will also fund on going per claim costs. The user pays issue has yet to be solved. The costs of developing the Portal to enable usage by self represented claimants would need to be understood as would any knock on impact into the ongoing per case costs and any future development work for claims above the Small Claims Track limit ( assuming that the RTA PI Scheme continues for these Fast Track cases) Further Action Qu 8: What more should the Government consider doing to reduce the cost of exaggerated and/or fraudulent whiplash claims? Whilst the Consultation recognises that the Department of Health could do work with professional organisations to develop better clinical guidance around whiplash injuries, there should also be a commitment to research and develop an objective medical examination protocol, in line with legal standards. to diagnose such neck sprains and establish a causal connection to a road traffic accident Consider removing the right to claim compensation for minor injury claims as done recently in the CICA. Consider changing the substantive law so that a claimant found to have exaggerated his claim, alongside a genuine element, forfeits payment for the whole claim Where a claimant is found to be dishonest, enable a defendant to move straight to contempt of court proceedings, without the need to seek the permission of the court Ensure that the work of the Civil Justice Council around Self Represented Litigants is used/adapted to support claimants impacted by an increase in the Small Claims Track limit to 5,000 In addition, there are opportunities to improve suspect/fraudulent claims detection at the front end. If claimant lawyers are involved, know your client activities should be beefed up (minimising the risk that a contingency fee will not be paid). Equally the opportunities to share insurer used databases with claimant lawyers should continue to be explored.

7 The current work by the Competition Commission may also recommend alternative ways to handle lower value RTA injury and third party damage claims e.g. first party coverage models. Qu 9: Do you agree with the equality impact assessment published alongside this document? If not, please explain why. Yes Qu 10: Please provide evidence of any ways in which the procedure under current arrangements affects people with different protected equality characteristics. No evidence. Qu 11: Do you consider that the introduction of independent medical panels to assess whiplash injuries will affect people with protected equality characteristics? If so please give details. No Qu 12: Do you consider that an increase in the small claims limit for Whiplash/RTA h/rta personal injury claims from 1,000 to 5,000 will affect people with protected equality characteristics? acteristics? If so please give details. No

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