In the last edition of Disease Aware, Peter Kenworthy considered the new Pre-action Protocol for Low Value Personal Injury (Employer's Liability and Public Liability Claims) administered through the Claims Portal. Portal claims give limited opportunity to consider causation and diagnosis or question the claimant’s medical evidence.
This presents particular difficulty in claims for damages for HAVS, where subjective symptom reporting plus a history of long-term exposure to vibration is usually enough to give a diagnosis. How might an insurer challenge medical evidence based on subjective reporting alone?
This is not always a reliable method to diagnose occupational disease - particularly where compensation is involved. The risk of exaggeration and invention to maximise recovery of damages is a real one. Even moderate injury can bring an award of between £6,985 and £13,530 under the JSB Guidelines. The expense to insurers of paying non-meritous claims should not be underestimated.
One simple method of attempting to confirm the diagnosis is to demand photographic evidence of blanching. A paper by Youakim reports on a study into workers with a history of vibration exposure - all of whom were making compensation claims. They were asked to photograph their symptoms of blanching ahead of clinical examination.
At examination, symptom details were obtained by neutral, open-ended enquiry avoiding leading questions regarding blanching. This may contrast with some of the questioning by medico-legal experts. Claimants themselves are often well versed in typical symptoms of HAVS. Indeed, many claimant solicitors’ websites helpfully list them and some claimants make a claim following an approach by claims management companies. The risk of inaccurate accounts of symptoms at interview is clear.
Youakim1 concluded that subjective symptom reporting may not on its own be enough to diagnose HAVS. He suggests that photographs of blanching provide a straightforward and relatively accurate method of clinical evaluation. This is crucial since blanching is sporadic, unpredictable and rarely witnessed by the medico-legal expert.
This is not a new finding. In an earlier study by N Olsen2, cold water provocation testing in conjunction with photographs of cooled hands post-provocation were found to be valuable. The results of that study suggested that finger colour testing may be as valuable for diagnosis as measurement of finger systolic blood pressure after finger cooling, although the practice has subsequently fallen out of favour.3
The main criticism of the Youakim study raised by claimant experts is that it involved only a small cohort and can be dismissed as being of limited value. The potential limitations of the paper are acknowledged by its author with only 36 individuals in the study. Six of the 36 did not return their cameras. Of the 30 who did return the cameras, nine did not provide satisfactory objective photographic evidence to satisfy a diagnosis of HAVS. So, in excess of 40% (15 of the original 36) did not provide objective photographic evidence of HAVS whilst four of the 36 are said not to have described typical symptoms of finger blanching.
Despite the criticism of the Youakim study, insurers can, and should, request photographic evidence of episodes of blanching before being satisfied that a proper diagnosis has been reached. Can this be done with Portal claims?
When a claim goes through the Portal the only requirement is for the claimant’s medical expert to confirm which medical records have been reviewed. There is no obligation to disclose copy records although there should be disclosure of any photographs that the claimant relies on as evidence of their injury. If asked the question, medical experts would no doubt confirm that photographs showing blanching would help confirm the diagnosis of HAVS. In the Portal however, there is no provision for questions to the claimant’s medical expert.
As matters stand then, HAVS claims may need to be allowed to fall out of the Portal if causation is to be closely examined. This is probably a valid strategy in any event. In most cases the decision to pursue a claim through the Portal by the claimant’s solicitors might be questioned. It is unusual for an individual to have suffered exposure with one former employer only. Individuals typically carry out similar work throughout their working life.
The obvious advantage to claimant solicitors of sidestepping the Portal is that the fixed fee regime will no longer apply. Their entitlement will be to costs at the usual hourly rate. The risk then is of the Portal being used simply to process claims of dubious merit, including those with a dubious diagnosis.
The inherent tension between a streamlined process to manage claims on the one hand, and the ability to properly challenge a claimant’s case on the other, has been magnified by the introduction of the Claims Portal. As the process is refined hopefully the difficulties the ‘one-size-fits-all’ Portal presents can be ironed out.
The possibility of whiplash-style accreditation of experts has previously been discussed and might be one way forward in HAVS cases. There must also be room for verifying the diagnosis with photographs. This could hardly be considered onerous or invasive.
The majority of people now carry a camera on their mobile phone. In non-portal claims photographic evidence should be provided. A requirement for their provision within the Portal should form part of the industry’s efforts to make it fit for purpose in disease claims.
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