Most prominently in the healthcare setting is whether engaging a lawyer hinders an injured person’s treatment and rehabilitation. Many health professionals feel that the process of making a claim affects treatment and rehabilitation outcomes. But in short, there is no “one-size-fits-all” answer to this.

Understandably, the opinion of health professionals is often based on the impact that litigation has had on a current or past patient, or from the influence of their colleagues. Many feel that an injured person pursuing a compensation claim will fail to achieve the same post-injury level of functioning as opposed to those not pursuing a claim.

Although some people may struggle to navigate a compensation claim, especially whilst undergoing treatment and rehabilitation, we must always consider the bigger picture before ruling out legal advice. Too often, the reluctance to recommend that an injured person obtain legal advice will have a much more significant impact on the person down the track than what we initially realise — such as a poor prognosis, the cost of treatment and the ongoing impact on their capacity for work.

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As per Lewis v Australian Capital Territory, an award of compensation is to be guided by the compensatory principle, being that “the measure of compensatory damages is to be, as far as possible, that amount of money which will put the injured party in the same position they would have been in had they not sustained the wrong”.

We often receive feedback from health professionals that once an injured person obtains legal advice, it eases their anxiety about the whole process as it removes the uncertainty of the path ahead. Therefore, is it not the fair approach for everyone who has been injured in these circumstances to have the opportunity to seek compensation to restore this balance and ease their financial burdens (which often become psychosocial burdens if unresolved)?

The research

There is limited research available that explores the effect of a compensation claim on treatment and recovery.  

There is one study that explores the effect of compensation on rehabilitation from severe motor vehicle crash injuries; this study identified that people claiming compensation had:

• A strong sense of entitlement and injustice;
• A difficult claims and settlement process;
• An inability to move on with life during the claims process;
• An extreme dislike of medico-legal assessments;
• The necessity of legal representation to assist with the claims process; and
• A lack of trust about having to prove an injury or disability.

Often, negativity can arise due to an unsupportive and unresponsive lawyer involved in a person’s case. People with injuries must be aware that they are entitled to change their lawyer if they so wish at any point during their claim. Reflecting on my time in nursing, patients often seek your advice as a trusted adviser, and I now see the importance for medical providers to be able to identify a firm, if not a lawyer, that they trust to provide the care and attention an injured person needs at such a vulnerable time.

In contrast, a 2017 paper by Dorothy Frost, titled “The Impact of Compensation on Recovery”, identified factors that have a positive influence on recovery:

• Early claims lodgment;
• Early intervention and treatment; and
• Better access to healthcare providers.

Without a doubt, some people will take the legal process in their stride, and there are others who it will have a greater impact on, but this is not limited to compensation claims alone but rather the whole legal industry. From my experience in health care, factors that negatively impact treatment and rehabilitation are not limited to a compensation claim. The person’s holistic needs need to be met by a multidisciplinary approach, including medical treatment, psychosocial support and the awareness of legal entitlements. As lawyers, I feel it is our responsibility to guide people through the legal process and to help prevent psychosocial issues arising from financial strains such as treatment costs and loss of income, which, in collaboration with their treating team, aids their treatment and rehabilitation.

The fear of suing someone you know

Another common barrier to speaking to a lawyer is the fear of suing someone you know. Quite regularly, people decide not to pursue a compensation claim for fear of its impact on the entity responsible. Most commonly, this reluctance arises when an injured person works for their friend and is injured in the course of employment, or for a person who is a passenger in their friend’s vehicle and is injured in an accident that their friend caused. Too often, the perception of a clam’s potential impact on someone they care about is enough to prevent a person from pursuing a compensation claim.

It is often misunderstood that the burden of a compensation claim is not borne by their friend or loved one, but by their insurer. It is the insurer that will manage the claim and the insurer that will meet the expenses (and any settlement) associated with it.

A claim for a motor vehicle accident is against the compulsory third-party (CTP) insurer. In Queensland, there are four CTP insurers — QBE, Allianz, Suncorp and RACQ. CTP is an insurance that forms part of our registration and is paid for when we renew our vehicle registration every six or 12 months. In the case that the driver at fault cannot be identified, the claim is commenced against the nominal defendant. In most cases, the involvement of an at-fault driver in a CTP claim is limited to providing a brief statement of the event, if they are even contacted at all.

When a person is injured at work, they will lodge a workers’ compensation claim with the insurer for their employer. This is most commonly WorkCover Queensland, but there are some self-insurers, too.

Suppose an injured person decides not to proceed with a claim in fear of the potential impact on someone they know. In that case, they are depriving them of potentially essential compensation if, down the track, they find themselves in a situation where their injury has a more significant and longer-lasting impact than they originally thought. My best advice is to seek legal advice early to understand your options and entitlement (and to demystify any concern around the connected party).

How much time do I have?

If there is one thing I wish I had known about to tell patients, it is that there is not an unlimited time frame in which you can commence a claim. Time limits keep lawyers up at night — now I can see why.

In many cases, contact with a lawyer is triggered by a poor prognosis, the realisation that an injury will have a lasting impact on the capacity for work, the need for ongoing or expensive treatment, the requirement for domestic assistance or assistance with activities of daily living, or a diagnosis of a permanent disability.

A person who injures themselves in the course of employment will be entitled to receive statutory benefits, which will be made up of lost income and the cost of treatment and rehabilitation. A person has six months from the date that their injury occurred to lodge an application for WorkCover. In circumstances where a person can prove negligence and decides to proceed with a damages claim, the time limit to bring a damages claim is three years from the date of injury. If steps are not taken to protect that limitation period within the three years, the right to a compensation claim will be statute barred.

For a person who is injured in a motor vehicle accident, a claim form needs to be served on the relevant CTP insurer within nine months of the date of accident, or within one month of engaging a lawyer. If nine months have passed, a claim form can still be lodged, but a reasonable excuse for the delay must be provided. In the case that the at-fault driver is unidentified, a claim form needs to be served on the Nominal Defendant within three months of the date of accident. The Nominal Defendant is less lenient and will not allow, under any circumstances, a claim to be brought once nine months have passed.

Similarly, if a person is not injured in the course of employment or as a result of a motor vehicle accident, they may be entitled to a public liability claim. If that is the case, a claim form needs to be given within nine months of the date of incident. If nine months have passed, a claim form can still be lodged, but a reasonable excuse for the delay must be provided.

For both public liability and motor vehicle accident claims, an overarching time limit of three years from the date of accident applies.

In summary, a holistic approach to treatment and rehabilitation means that it is crucial that health professionals have an understanding that such time limits apply. Whilst delivering the news of a permanent disability or the need for ongoing treatment, it is essential that health professionals can identify when to recommend their patient engage a lawyer, and within an appropriate time frame.

Final thoughts

Unfortunately, there is no perfect solution for the potential adverse impact of a compensation claim on treatment and rehabilitation. Every injured person is different and will navigate this process uniquely. I appreciate that there is some hesitation in the medical world, as your primary focus is helping people to “get better”, and anything that would potentially jeopardise that is not something you wish to entertain.

But the harsh reality is that long-term injuries require funds to support treatment, which is necessary to improve a person’s quality of life and prevent them from falling below the poverty line if they cannot return to their pre-injury life.

For every injured person you encounter, it is at least worth considering the worst-case scenario and educating them to make a fully informed decision about their treatment and rehabilitation to avoid it becoming one. Experts in personal injury law are here to assist injured people in navigating these decisions and understanding their entitlements and time limitations.

Libby Thomas is a lawyer at Travis Schultz & Partners.