Whole Person Impairment & Pain and Suffering
When a person is injured in a motor vehicle accident and brings a claim against the insurer of the vehicle they say is at fault, unfortunately they are not entitled to be automatically compensated for their pain, suffering and all the ways in which their life has been or will be affected by their injuries.
Under the law that governs motor vehicle claims, in order for a person to be entitled to claim compensation for their pain and suffering (technically referred to in the legislation as ‘non economic loss’), they have to be found to have a whole person impairment that is greater than 10% as a consequence of the injuries sustained in the accident. In effect, this is the threshold or gateway that every claimant has to get through before any regard can be had to all the (subjective) ways in which their life, and their enjoyment of it, has been impacted by the accident and their injuries.
When it comes to the assessment of whole person impairment, it is firstly important to know that this assessment can only be undertaken when a person has had sufficient time to make a recovery from their injuries, to undergo relevant rehabilitation and treatment and their injuries have stabilised. The reason for this is that the assessment of whole person impairment can only relate to those physical or psychological impairment with which a claimant is most likely to be left for the remainder of their life.
Secondly, and perhaps more importantly, the assessment of whole person impairment is undertaken based on strict and objective medical/clinical guidelines, which the doctors who assess the injured must apply, and must apply accurately.
Unfortunately, when it comes to applying these guidelines, the experience of pain and loss of enjoyment in activities does not actually rate in this assessment of whole person impairment. Rather it is a purely medical test, based on the application of objective medical tests and scales, such as reduction in range of motion, the presence of radiculopathy, loss of sensation, requirement of surgery such as a spinal fusion, amputation and so forth.
However, if a person is found to have a whole person impairment that is greater than 10%, then the subjective factors associated with how their injuries has affected their life is taken in to account in determining how much the person should get for their pain and suffering.
Having regard to the above, when assessing whole person impairment, the medico legal doctors involved in the claims process don’t really have much or, in fact, any room to factor in anything other than what the medical guidelines permit.
When a person brings a claim for compensation as a result of a motor vehicle accident, it is not unusual for the insurance company to arrange an assessment with a doctor of their choosing. If the person is represented by a lawyer, their lawyer will do the same. Often, there is a conflict between the findings of the different experts in relation to whole person impairment. In these circumstances an application can be made the Medical Assessment Service (MAS).
MAS consists of a number of specialised medical practitioners who are appointed to determine medical disputes between the parties to a claim. Essentially, one of these medical practitioners will be appointed to assess the claimant and to make a finding in relation to their whole person impairment arising form the accident. The findings of a MAS Assessor (unless they have made some material error) is effectively binding on both parties.
If a claimant is found by MAS to have a whole person impairment greater than 10%, then the precise percentage of impairment does not really matter any more when it comes to assessing the amount of compensation they should receive for this fact. This is because the determination of the amount of compensation a person should get for their pain and suffering, once they get through that ‘gateway/threshold’, is to be made by reference to how that specific individual’s life has been affected. This involves taking into account the type of lifestyle the person lead before the accident, as well as what their reasonable expectations were for their future and just how deeply this has been impacted.
Sadly, many self represented claimant’s do not realise this and will, in many cases, accept the insurer’s decision that their whole person impairment is not greater than 10% it is for this reason that we strongly encourage people who are continuing to suffer significant restrictions at least 12 months on from an accident to seek the advice of a lawyer experienced in motor vehicle claims.
If you or somebody you care about has been injured as a result of somebody else’s negligence, you may be entitled to compensation. For more information, and to arrange a free, no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 25 1800, or alternatively make an online enquiry.
Written by Ruth Hudson.
Ruth Hudson is a Practice Group Leader at Stacks Goudkamp. She has experience acting for clients in a variety of areas, including motor vehicle claims, public liability claims and professional negligence claims.