The majority of market participants expect to see non-whiplash injuries and rehabilitation claims emerge in response to the whiplash reforms

Non-whiplash injuries, such as tinnitus, headaches and wrist or ankle complaints, are “becoming trendy again” and “coming back in vogue” as add-on conditions to whiplash-related personal injury claims – this approach aims to boost whiplash claims out of the incoming Official Injury Claim process to potentially attract higher compensation amounts, according to law firm Kennedys.

Speaking at the firm’s recent whiplash-themed webinar, Niall Edwards, partner at Kennedys, predicted that firms within the personal injury arena will begin to see non-whiplash injuries tacked on to whiplash claims in order “to jump claims out of” the new Official Injury Claim portal, previously referred to as the Litigants in Person (LiP) portal, which will be effective from 31 May.

He said: “A number of different additional injuries that are becoming trendy again, so to speak, tinnitus being one of them. A nice subjective injury which is very difficult to prove, disprove. I can foresee headaches, neurologically based injuries.”

Even additional bruising in unexpected places, said Edwards, could be used to this purpose.

Polling webinar attendees, Edwards asked whether industry participants expected to see claimants introducing other injuries to whiplash claims in order to jump out of the process; 98% voted yes.

Rehabilitation costs

Another way claimants could seek to increase compensation under the new system is by progressing their claim to a different, higher band of the whiplash injury tariff table, which allocates claim payouts depending on the length of recovery time.

For Kennedys partner Jenny Harris, this could be linked to block sessions of rehabilitation treatment.

She explained: “We’ve become familiar to see the pro forma physio and psych treatment invoices for block treatments for multiple sessions.

“We’ll have to sense check that they have been or are going to be undertaken. We can see easily how increased physio or psych treatments, physio particularly with the tariff, is going to tip an injury from one band to another because of the recommended number of sessions. And similarly, with psychiatric help, psychological help as well.

“I think we will see an increase to try and make an injury fall into a different tariff band.”

Harris has a few other concerns regarding the treatment of rehabilitation services under the new system – namely that providing early intervention treatment options is going to be “a challenge” and that claimants assessing the severity of their own injuries is going to be “very subjective”.

She continued: “The new rules give a whole three and a half lines to rehabilitation. When on the new portal, the claimant is going to be asked if they’ve been advised to seek treatment, so it’s already a prompt that’s there, written large, and I think inevitably, we’ll find that most claimants or a lot of claimants will already have been captured by their solicitors, their advisors and we know a lot already have very close links to rehab providers.

“There’s also a very subjective question to a claimant: do you think your injury is exceptional? Of course, everyone thinks their injury is the worst for them in that moment, so there’s a risk there as well that they will say yes. It is very subjective.

“There’s an ability for compensators to offer access to their own rehabilitation. That will require early intervention and that’s going to be a challenge, to get in with that early intervention. Rehab, of course, is not just for the physio for the whiplash – there’s the psychological therapy. I think we’ll see an increase there as well.”

Polling audience members, Harris asked whether webinar attendees expect to see more rehabilitation claims following the implementation of part one of the whiplash reforms – 79% said yes to this.

Grey areas

Ian Davies, Kennedys partner and head of motor, believes the new reforms “will just about work, but there are lots and lots of wrinkles and grey areas”.

He added that there is the “potential for claimant firms to maybe claw back something they feel they may have lost in the rules and there’s obviously the opportunity now with the way the system has been drafted to introduce litigants in person into the system and to allow litigants in person themselves to push their own claims forward”.

Equally, he told webinar attendees that he has been “wondering what the claims management companies are going to do here and where their place is going to be in this new process”.

He said: “I noted last month that First4Lawyers are setting up a law firm for the very purpose that they’re going to enter this market. If I were looking at a claimant firm entering the market now, you’ve either got to be mad or have a plan. And clearly First4Lawyers, in setting up now, have a plan.

“We’ll all be watching what First4Laywers is doing. I think it all comes down to costs and how they can balance their case loads and make money and continue to make money at a suitable level to keep their businesses going with the changes that have been made.”

Edwards additionally noted that e-scooters were noticeable in terms of their absence from the new rules – he thinks they should be considered as a vulnerable road user, in the same vein as motorbikes.