THE CRUCIAL ROLE OF REHABILITATION IN YOUR NSW MOTOR ACCIDENT INJURY CLAIM

THE OVERVIEW

As experienced legal practitioners in NSW personal injury compensation claims, we have occasionally been faced with a societal perception that remaining at home after an accident and not actively participating in rehabilitation will result in a larger compensation outcome. In a large number of circumstances, this perception is entirely incorrect for a number of reasons:

• From a health and wellbeing perspective, returning to work generally yields positive outcomes. It is also an effective tool in reducing social exclusion following an injury and can empower an injured person to take responsibility of their own situation and to regain control of their life after an injury [1].

• Rehabilitation and return to work programs play a critical role in returning people to their pre-accident quality of life (or as close as possible).

• From a compensation viewpoint, when an injured person undergoes rehabilitation and return to work attempts, the challenges they face are documented and discussed with their CTP insurer. This information shows the CTP insurer the potential long-term difficulties the injured person may encounter, even if they have returned to work. By sharing their real-life experiences, the injured person strengthens their compensation claim. In many cases, this firsthand account can have more impact than a medical expert’s opinion, leading to increased compensation from the insurer.

[1] https://www.racp.edu.au/docs/default-source/advocacy-library/realising-the-health-benefits-of-work.pdf

THE DETAIL

As a personal injury law firm in NSW we assist people from diverse racial, cultural, religious and socio-economic backgrounds. Every single person is unique in their own way, which is why Advantage Legal offers a truly tailored approach to compensation claims. Irrespective of what walk of life an injured person comes from, a common question we are asked is how best to approach  rehabilitation and return to work. Our firm view is that a tailored rehabilitation plan consisting of individually focused treatments will produce far better health and compensation outcomes than if an injured person takes a less proactive approach to their rehabilitation and return to work, effectively putting their life on hold for the duration of a compensation claim.

The team at Advantage Legal will always encourage an injured person to undertake as much treatment as needed to optimise their rehabilitation, to attempt to return work as soon as possible and to try to get on with life, notwithstanding the traumatic nature of the accident. Rehabilitation and return to work attempts, whether successful or not, play a critical role in helping injured people get on with life after an accident and can also strengthen a claim for compensation.

The Myth – Rehabilitation & Return to Work Harm a Compensation Claim

From 1999 to 2017, the NSW CTP scheme provided people with a single ‘once and for all’ compensation pay out. Injured people were entitled to claim compensation for treatment, domestic assistance, economic loss and under certain circumstances, pain and suffering. Monthly certificates of capacity were not required, so CTP insurers and rehabilitation providers were not in direct contact with an injured person or their medical provider as often to track their recovery progress.

The 2017 CTP scheme significantly increased the amount of communication and direct contact between a CTP insurer and an injured person. The scheme changed to a system where injured people receive weekly payments, treatment and domestic assistance on a periodic basis (similar to the NSW workers compensation scheme), with lump sum compensation pay outs being limited to people with serious injuries and who were not responsible for causing the accident (subject to the satisfaction of legislative injury threshold requirements). The 2017 CTP scheme reforms now require an injured person to be in regular contact with their CTP insurer to request treatment, provide certificates of capacity and payslips, and to discuss their weekly payments.  There is also a far greater focus on actively participating in rehabilitation and return to work, which again increases the contact between an injured person and their CTP insurer.

Failure to adhere to the legislative obligations or to communicate with the insurer without a justifiable explanation allows an insurer to pause or cease weekly payments, and in appropriate circumstances allege that the injured person has failed to mitigate their loss. In other words, injured people who fail to make actively participate in rehabilitation and return to work measures without medical certification can have their compensation entitlement reduced under the NSW CTP scheme.

The Reality – Rehabilitation & Returning to Work is Beneficial For You & Your Compensation Claim.

Undertaking proactive rehabilitation and seeking to return to work are important elements of an injured person’s post-accident recovery, and are as equally important for their CTP compensation claim. Here are five reasons why participating in rehabilitation and attempting to return to work are more beneficial for an injured person and their compensation claim than staying at home and failing to make any attempt to return to their pre-accident life:

• The NSW CTP scheme requires injured people to actively participate in rehabilitation and make attempts to return to work in order to receive ongoing benefits from the CTP insurer.

• Long term work absence, work disability and unemployment have a negative impact on an injured person’s general health and wellbeing.

• Properly implemented rehabilitation programs typically have a positive impact on mental and physical wellbeing. How injured people participate in rehabilitation, and their attitude towards recovery has a direct impact on their ability to return to their pre-accident standard of life.  Failing to properly participate in rehabilitation will not only harm their wellbeing, but will also have a negative impact on the people closest to them such as friends and family members.

• Proactive rehabilitation assists with returning to work. Returning to work does not mean that a compensation entitlement will be wiped out. Injured people who return to work are still able to claim economic loss compensation where their future circumstances have been disrupted.  For example, compensation can be claimed if an injured person: 

• • • Misses one or more promotional opportunities.
    • Does not receive an anticipated wage increase.
    • Fails to meet their pre-accident performance standards.
    • Does not receive bonuses or commissions.
    • Is forced to move to a lower paying role due to their inability to cope with their pre-accident employment activities.
    • Is unable to work overtime.
    • Becomes restricted in their career potential.
    • Has less employability on the open labour market.
    • Is likely to retire early.

• Participating in rehabilitation and attempting to return to work, even if unsuccessful, demonstrates to the insurer that a person’s injuries are legitimate and that they have attempted to mitigate their loss.  In our experience, an insurer is far more likely to provide compensation to someone who made genuine attempts to mitigate their loss (even if unsuccessful) than those who made no attempt at all.
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THE KEY POINTS TO REMEMBER

• NSW motor accident compensation law changed in 2017. Insurance companies are far more proactively involved in rehabilitation and return to work activities than ever before and are empowered by legislation to reduce or cease wage payments if legitimate attempts to return to work are not made.

• The perception that compensation entitlement could be lost if you return to work is incorrect. Actively participating in rehabilitation and attempting to return to work can result in better outcomes for injured people, not only in receiving a larger compensation pay outs but also in significantly improving their quality of life post-accident.

• Advantage Legal are firm supporters of rehabilitation and return to work. We believe in assisting injured people to reclaim their pre-accident quality of life or getting as close to it as possible. In addition to this, we are dedicated to securing an exceptional compensation outcome.