You have been involved in an accident. You are not to blame. You are left to deal with unfamilar people and procedures. Your initial reaction is to hire a Solicitor to deal with it all.
You have little experience of solicitors, perhaps a friend recommends someone but you are not sure. Is this person or an expert in the area of accident claims?
If only there was information that gave you the background to the system. Some map that gave you the injured party help to know what was going on with your case. If it gave you assistance to see what your Solicitor was doing for you. You would feel more comfortable.
Well this article sets out to assist you in these two areas.
All claims for compensation for personal injury now have to start with application to the Injuries Board (formerly known as the Personal Injury Assessment Board).
It has been in operation since 2004. It works through a Website and Call Centre.
The purpose of this article is to meet this need and more importantly, to give you, the injured party or interested lay person, a clear guide to run your own claim if you so wish.
Can I take it that you are someone who has needed to lodge a claim?
Whether this is on your own or through a Solicitor you want to know what it involves.
You may be “web savvy” and have studied all the Injuries Board Website for helpful hints. You may have read some articles on various aspects of the PIAB/Injuries Board. If you have that is good, but we assume you have no knowledge and that is why we have put in the list of legal of terms elsewhere on this site.
This article is based on our experience of dealing with claims through the Injuries Board, its advantages and disadvantages.
– It outlines what sort of claims it is best suited for.
– It helps you to decide on what basis you should accept an Injuries Board offer.
– It gives you insider tips to guide you if you press on with Court Proceedings.
We show how you can be abreast of all by giving you a ‘steer’ as to what is in your best interest.
The second benefit for you is you have the system explained to you in your own time and at your pace. In our experience each client needs to have the same facts explained to them how the system works. A guide outlining the basic system would empower the client. Then clients and potential clients can use the time in a Solicitor’s office more efficiently to request specific information as regards their particular case or circumstances. Solicitors for their part would not have to repeat the same information time after time .The client can ask targeted or specific questions all of which would take less time resulting in reduced fees to the client.
In Injuries Board applications the client has to pay his/her own fees
This is not a dull article only for Lawyers; rather it is a handy guide for the ordinary person to understand the process that affects their future or the future of their children following an accident or workplace incident.
The workings of the system at first seem simple, but there are a number of areas that the injured person could fall foul of without expert advice. There are features that are not written anywhere which if not understood can affect your compensation.
You are always advised to seek legal advice on your particular circumstances.
General Background
The reasons for the limited success of the Injuries Board are as follows:
After years in operation it is only receiving acceptance of a third of what it deems to be valid claims. These are mostly at the lower level, up to €20,000. The remaining cases all go on to court proceedings or later settlement directly by Insurance Companies.
1. Once serious injury occurs the twelve month period allowed by the Injuries Board to make a decision can be too short to properly assess the long term outcome for an injured party. For example scarring on any part of the body will always take eighteen to twenty-four months to settle down before a plastic surgeon can decide whether further surgery is needed or desirable.
2. Any type of psychological injury or change of personality or a posttraumatic stress syndrome is not an area the Injuries Board will deal with.
3. Accidents involving children have to be brought before a Court anyway. The Injuries Board tends to stay out of these and allows the Insurance Company for the Defendant to make a direct offer to the injured party. Usually this is to the parent of the injured child as children/young adults cannot sue in their own name until they are eighteen years of age.
4. There is a natural reluctance to have a life changing event like an accident decided by an unseen system rather than by a Judge with whom you can meet. People fear what they do not understand. Although most injured parties have no previous experience of Court proceedings, they feel a Judge can sympathise with their situation and compensate them accordingly.
5. An injured party has to have Internet access to lodge a claim as the Injury Board advice on how to lodge a claim is all online. Surveys have shown that 25% of the adult population in Ireland are functionally illiterate (will avoid reading if they get the choice) so they may have limited ability in completing Internet Application Forms.
6. The fact that the layman has no way of gauging the value in money terms of their injury. The Internet based Personal Injury Guidelines (formally the Book of Quantum) is based on court cases and settlements. As we all know nothing in Ireland is the same now as it was long ago.
With only 1/3 of claims lodged with Injury Board accepted at Assessment Stage each year is it time to ask if it has succeeded in what it was set up to do?
The insurance companies must have realised if they investigate the accident quickly, (they have 90 days to do all this) and have got a medical report on the Injured Party that they can make a settlement offer directly to the injured party or their solicitor. In changed economic times “cash is king” and clients may settle their claim with no need to enter the Injuries Board system at all. The Insurance Companies could save €1,050 (2010) – the cost to them for each assessment in the system. If they persuaded the injured party to settle directly over the phone they no longer had to pay legal adviser costs for the that injured party or for their own legal advisers.
The alternative viewpoint is that to justify its existence the Injuries Board has to assess higher compensation than the Insurance Companies with their offer otherwise why does it exist? If the one third of claims that it does assess successfully each year were to reduce in number could the Insurance companies continue to finance its operations?
With higher value assessments than the Insurance Companies would like especially on claims under €20,000 in addition to the cost of financing the Injury Board itself, has this change resulted in any reduction of premiums to the customer which was the basis for setting it up?
The Procedure
Alternatively, if you are using a Solicitor here are the 10 steps they follow:
Step 1 Assembly of Information
Step 2 The Application Form.
Step 3 The Medical Report
Step 4 Service of Application and proof of service Step 5 Acceptance By Insurance Company / Defendants
Step 6 Special Damages.
Step 7 Injuries Board Medical Reports.
Step 8 Insurance Company Medicals
Step 9 What to do when waiting …
Check List to assess yourself to see are you ready to settle
Step 10 The Award
As there are 10 steps in bringing a claim to the offer of settlement stage we examine each of these needs carefully.
We will deal with Assessment separately in section 3 due to its importance.
Step 1 and 2 – Assembly of Information / The Application Form.
You must complete an Injuries Board Form A
This first step can very often be the most time consuming. You will need to have clear details to complete the Application Form (Form A). For Road Traffic accident purposes you will need the name and address and insurance details of the other party. If there is a different owner and driver both will have to be listed with addresses.
A common mistake is that injured persons do not get the correct legal name or title of the Defendant. If the accident happened in Murphy’s Public House, this is not a correct legal title. It will have to be the name of who owns the bar or a company name with a registered office for its address. Likewise the actual legal owners of a factory or work place can be hard to find.
The Form A will be returned by the Injuries Board if this information is not correct. Time still runs while you are finding this information. You have 2 years to lodge a claim from the time of accident.
You are asked to give a brief outline of the accident. At this stage give less information rather than more as the Insurance Company may not have decided who is to blame. Your description of the Incident/Accident may provide a defence to the other side.
You may have difficulty locating any independent witnesses. You also must obtain an appropriate medical report on your injuries. You have a number of choices here. It may be that you were admitted to hospital and it is possible to obtain a report from the A & E Consultant who treated you. You may have attended your own private doctor and he/she can prepare a report on your injuries, however if you have an injury that requires specialist treatment they can refer you to a doctor specialising in this area and you may obtain a report from them.
It is possible to lodge the application without a medical report enclosed, but this is only in emergency cases where the two year deadline is about to expire.
You will also have to supply your details of loss of earnings if this is applicable and details of your employment.
Form A goes on to request details of out of pocket expenses. These are called Special Damages in a court case. General Damages is the name given to compensation for your actual injury. Here you include your medical expenses and all payments you have to make as a result of the accident.
You will be asked to specify whether you expect any further expenses. Well you don’t know do you at the start of a claim? Always complete this with “Yes” to cover extra expenses that may arise whether they are medical or other outlays.
You will receive later in the progress of the claim a further single sheet from the Injuries Board giving you a final chance to include additional expenses not known at the start of the claim.
The Injuries Board may not assess your case if it is not clear how our accident was caused. The Injury Board will do nothing until they hear from the Defendant or their insurance company. If you need evidence to back up your claim for a court case you need to gather this now. Locations change, stories of witnesses fade and faulty machines disappear so consider what you need to prove your case if you have to go for a hearing. You have no guarantee the Insurance Company will agree to compensate you and allow the Injury Board to calculate your loss. They may agree to Assessment at the start but if you reject the offer of the Injuries Board they can change their attitude and fully contest your case.
For these reasons you need to gather evidence about how your injury was caused.
From 2020 on the Injuries Board wants all to go through their online ‘Portal’ which means you have to have a good working knowledge of computers and email.
We can handle all that for you and save you stress and worry.
Step 3 – Your Medical Report
Your case in the Injuries Board system is decided on the statements and reports sent in by both sides. This is the basis on which your compensation is calculated. Your first Medical Report sets up your claim. It is reviewed by the Insurance company when they get a copy of the Form A and the Report is attached. If it doesn’t describe what you suffer from, you should specify on the Form A that you are not happy with its conclusions. This can occur for example where a Medical Report says you would be back to your preaccident condition in six months and by the time the report is completed the six months have passed and you are not recovered!
We advise clients that we should obtain the medical notes from the Accident & Emergency Department if they were taken to hospital after the accident or incident. Even with cutbacks in medical backup services hospital administrations send these out without delay often by registered post at no cost to the injured party. They require a signed authority from the patient or injured party requesting a copy of their notes to be sent to the appointed solicitor. These notes can be sent by the solicitor to appropriate specialists who will read them and ask you to attend for the purposes of preparing a Medical Report on your injury.
A solicitor has the knowledge to send the client direct to the right specialist / consultant who will do a comprehensive report on the injury and the timescale for recovery into the future.
A poor report will mean a lower level of compensation. As Medical Reports are the basis of assessment of your loss it is vitally important that you submit the best available. There is no judge to meet and tell your story about how your injury affects you.
Accident & Emergency Consultants prepare good Medical Reports. Sometimes, your own doctor can be very busy and can’t always concern themselves with too much detail on Medical Reports. In fairness to the Injury Board they ask you on the Application Form A Page 2.
Are you satisfied that the Medical Report you are attaching adequately describes your injury?
All the Injuries Board require to commence processing your claim is the submission of a Medical Report without specifying how detailed it should be. There have been cases where injured parties knowing that their claim would go to the High Court eventually collect a number of Medical Reports but only select the most basic one for the Injuries Board. While the assessment is awarded on the basis of that medical report the injured party has been obtaining more specialised reports. This tactical use of medical reports means High Court proceedings can issue and the insurance company cannot get suf cient medical evidence on the injuries in time before the matter is listed for trial. Tactics like these force insurance companies to settle cases rather than continue them into a full hearing.
Failure to turn up for medical appointments for either insurance companies or for the Injuries Board is an increasing problem. Some insurance companies seek to bill the injured party as the appointed doctor bills them for the time wasted. The Injury Board itself can charge the Insurance Company if the claimant fails to attend for an arranged medical.If you do not turn up for an appointment arranged by the Injury Board you will be penalised by the Court if you bring your own claim- Be Warned!
It is as well to note the cost of Medical Reports.They can vary between €200 for a GP’s report up to €500 for a Psychiatrist’s Report. Some Dublin based consultants will charge €500 for a rst report and less for a follow up. The Injuries Board will pay for the rst Medical Report . They will not pay more than €245. They seldom pay for any further follow-up reports, and you are left to pay for these yourself. This is one of the unfair aspects of the Injury Board system.
A doctor will charge for his rst consultation with you. There should be no additional charge if you go back for the sole purpose of preparing a Medical Report. The fees quoted above include the attendance fee.
Remember in deciding whether to lodge your own claim or not you will have to pay the cost of any medical report to the doctor before he sends it to you Your solicitor if you employ one may carry the cost of this for you and wait for repayment until your compensation is paid.
Step 4 – Service of Application and Proof of Service
It is necessary to send the completed Application (Form A) with fee of €45 and the Medical Report online as they will charge €90 if you send it by traditional post.
Step 5 -Acceptance by Insurance Company/Injury Board
The Injury Board enclose for their bene t a detailed Questions and Answers called Neck Disability Index – See Appendix 1 to esh out what is wrong and how you are effected.
The Injuries Board request the insurance companies have the claim assessed. Sometimes they receive no reply if the defendant refuses to cooperate with the Injuries Board procedures. After 90 days has passed the Injuries Board can go ahead and assess the claim even if the defendant refuses to reply or does not ll out a claims form for their insurance company.
The Insurance Company may already have details about this accident.
Remember what I said about how fast their investigations now take place . The Medical Report attached to the Form A will be the rst indication they have of what injuries are involved and the level of compensation they must make provision for. If they feel there is a dispute as to how the incident or accident occurred they have 90 days to investigate the matter. They talk to their insured, attend at the accident scene and make a decision about whether they will agree to an assessment by Injuries Board or to contest the matter in the Courts. Some cases from the beginning are clearly matters of assessment only. For example a passenger in a car always has right to recover against the driver. In that case the insurance company would agree to the assessment and make arrangements to medically examine the injured party. When they have this Medical Report they will try to settle directly by contacting the Injured Party or their Solicitor within 90 days . If they settle the claim at this early stage they may save the Injury Board Fee.
You should bear in mind if you are the Injured Party that it may be too early to assess the long term effects of your injury. It may suit the Insurance Company but is it in your best interest? I deal with this later in the chapter on Accepting an Offer.
The details of all parties must be clearly laid out. Failure to have names and addresses or other important facts will result in the return of the Application Form. All the time the clock is ticking on the 2 year deadline. Until a letter is received by you from the Injuries Board stating the application is completed to their requirements the time still runs .
Step 6 – Special Damages
You must be aware that the Injuries Board has very rigid rules about what is allowed and not allowed. The Form A (see Appendix) on the fourth page asks you to include what vouchers you have at time of lodging your claim. Vouchers must be attached for any out of pocket expenses. These are called Special Damages. Remember the golden rule is –no vouchers no payment. This is ne for loss of earnings and/or hospital expenses or x-rays and/or treatment fees. The cost of the services of a translator for anyone who is a non-national may not be recovered. The injured party may need to travel to hospital outside their own area for specialist treatment. They will not be allowed to recover these expenses unless they are vouched. House/home help sometimes are paid in cash and receipts may not always be available where the injured person needs daily help following an accident. Note all receipts must be kept even fuel receipts for travel – no vouchers, no payment.
For self – employed people vouching their earnings where they are part-time can create dif culties. There can be no question of recovering earnings not covered by the taxation system. Again no vouchers – no recovery. For employees under the PAYE System a letter from an employer is usually suf cient to show the net loss of earnings suffered. A letter from Social Welfare to show what they paid out should be obtained and attached to the Special Damages form. This form must be signed by the injured party. Even after this is signed and completed there is provision to keep sending in vouchers up to the assessment date. Again lodge copies and keep orginals if there is a possibility that Court Proceedings will be necessary following the assessment by the Board. These days with colour copiers there will be no noticeable difference between the two.
Steps 7 & 8 – Injury Board, Medical Reports and Insurance Company Medicals.
You need to complete the Medical Assessment Form See Appendix 2.
Step 9 – What to do when Waiting.
At present the longest delay seems to be between the return of the Special Damage details and the issue of the Assessment Offer. This is when the actual Valuation of the claim is carried out . It can sometimes help to phone the Injuries Board and ask why the delay. You may not get an answer but your assessment may arrive quicker.
While waiting for the Assessment to issue the injured party has to be aware whether their injury has stabilised or not. No matter what money is offered if you are in pain on a daily basis then you are not recovered well enough to accept whatever offer is made by the Injuries Board.
I have included a list of questions to ask yourself in Appendix B. These will assist you in estimating whether the assessment gure is suf cient to compensate you for your loss. If the answer to these is mainly “Yes” then you have clear evidence from your own information whether to accept the Assessment or not. Remember there is no coming back if the injury gets worse. If you accept the offer and the Insurance Company accept it you will be paid and the case is closed. If in doubt you might consider rejecting the offer and proceeding to a hearing or settlement in Court.
The law says that the injured party in all claims has to minimise their loss. This means they must do whatever treatment is recommended by medical advisors such as Physiotherapy or prescribed exercises. If you were advised to get an up to date assessment within a year after the accident you should follow your Doctors advice.
The Assessment – How you are encouraged to accept their offer
It is taking the Injuries Board some 12/14 months to issue an Assessment from the date of lodging of Application. The award will be sent by registered post to the legal advisor and to the injured party at the same time. It will include the Injuries Board medical report if one was obtained.
The Assessment is in three parts.
The Covering Letter:
This summarizes the total amount paid (see Appendix A). It lists any medicals that the Injury Board may have obtained. It gives notice that the injured party has 28 calendar days including Sundays to accept or reject the Assessment. It points out that if rejected for whatever reason a letter of Authorization will issue from the Injury Board and this allows proceedings to be issued through the court system.
Assessment Details:
This gives a breakdown on each heading of Special Damage as well as the
General Damages Figure-usually a rounded gure. It also has a section for
Fees and other expenses necessarily incurred. This lists the refund of the Application Fee –always included and one medical at the rate of €245. The bottom half has the Acceptance/Rejection of Assessment form for signing by the Injured Party. This has to be dated to ensure it is returned within the 28 day limit outlined above. If an Injured Party needs advice they will have to move quickly. As time runs from when it leaves the Injury Board of ce a quick decision is vital. This is where the experienced advisor comes into their own. By knowing the details of this particular client, by discussing how they will recover and how their home and work life is affected long term they can accurately assess and advise the Injured Party. To take the Offer or not will affect the daily life of that person and they need an independent opinion to help them to decide.
The time limit is 28 days from the date of the application letter, which would have a date on it when it was sent out by the Injuries Board. If they do not receive a response within that time they will deem it automatically rejected. The injured party replies rst either to accept or reject and then the insurance company have 21 days to accept or reject. The trend has been for insurance companies to accept if the injured party accepts.
The Injuries Board involvement ends here. Either a Payment Order issues to the Insurance company to pay the amount of the Assessment or a Letter of Authorization issues to the injured party to continue to Court Proceedings.
The final letter to both sides confirms that they are closing their file .
We are now at the central issue concerning the entire Injuries Board system. How does the injured party know the amount being offered represents fair compensation for their injury? The Injuries Board advise you to look at the Book of Quantum on their internet site. This presumes that the injured party can access that and even if they can that they can understand and evaluate the claim based on its information. The parties are not equal in their information here. On the one hand the Injuries Board staffed by former insurance company of cials familiar with claims handling have access to a vast databank of claims awards made either by the Courts or by the insurance companies settlements outside court. The injured party, without any legal adviser, has no independent means to verify the value of the claim.
A legal adviser would know from experience given the injured party’s age, sex, injury type, recovery rate and occupation how to assess the value of the claim. Knowledge of the appropriate Court and how a Judge is likely to look on a claim is also a distinct advantage to advise whether an offer should be accepted or not. Your Solicitor or Barrister with their day -to- day experience of dealing with claims in your area will have the knowledge to guide you to make the right decision.
An offer of money in nancially hard times must be looked at very realistically and everybody’s personal circumstances are different. A good adviser will look at the bigger picture and seek to guide the injured party, putting the alternatives to them and letting the injured party decide. For example, if the injury is ongoing and not likely to be recovered from the injured party may feel they are being rushed into a settlement after only twelve months has passed. There is clear evidence that whiplash neck injuries do not settle within a convenient twelve month period and very often continue for two or three years and are a source of pain and discomfort for which compensation must be paid. It is mentioned elsewhere about scarring where until 18/24 months have passed it is not possible to say what the long-term situation will be.
Distinction must be drawn here between the adviser and the client. The adviser places the choices in front of the client. It is the client who must decide to accept or not. They may agree to take the award knowing that they will have problems with their injury going forward, and it may not be stabilised at the time the award is made. All the adviser can do is clearly point out from their experience and let the client decide what is in their own best interest. The 2010 statistics state proudly the time for settlement is down to six/nine months, but again it must be asked who bene ts from this?
A prudent adviser will have the client sign an acknowledgement that he/she was fully advised in relation to the choices offered to them and that they made their decision of their own free will to accept the award.
Section 51a and Section 51b…….The Sting in the Tail.
Sections 51a and 51b of the original 2003 PIAB Act were amended and deal with the situation where an Injuries Board Assessment is rejected and Court proceedings are issued.
An amendment under the 2004 Act made all Assessments issued by the Injuries Board automatically a Lodgement or Tender in any further Court proceedings. Let me explain what this means.
In a Court Hearing a Defendant, without the Judge who hears the case knowing, can lodge a sum of money in court. In recent years this became a simple letter written by the Defendants to the Injured Party or their Solicitor advising the amount they thought the injury was worth.
If the matter continued to a hearing the Injured Party had to receive an amount higher than what was lodged in Court. If they failed to do so they were liable to pay all of their own costs and all of the Defendants costs in relation to the action. This put pressure on them to settle the case without the risk involved in a hearing.The judge however retained authority to decide costs as he saw t.Before the 2004 Act the Court could make its own mind independently as to the award of any legal costs and outlays against the Claimant.
This independent right was removed by amending the 2003 Act. Now the Injured Party will have costs awarded against them automatically if they fail to beat the Lodgement/Tender (Injuries Board Award).
A second amendment tightened up further the question of legal costs for work on the Injury Board case that led on to court proceedings . Even after hearing the court case no costs can be awarded for the Injuries Board work prior to the issue of proceedings to any legal adviser for the injured party.
The only exception to this is for the family of any person under 18 years of age. In these cases application should always be made to the sitting of the Court outlining the costs of bringing the action before the Injuries Board and all items of special damage and asking the Court to speci cally grant them as a separate Order when assessing what the value of the claim is.
The higher level of settlements from the Injuries Board means that the Injured Party gets fair compensation for their claim and they still have suf cient funds to pay for Legal Advice if they are unable to process a claim themselves. This gives something to both sides and the system will no doubt continue to be quite successful in dealing with a certain level of claims.
The real question to be answered is how much the Insurance companies have actually saved by the introduction of this system. Could it be that the higher level of Assessments together with the cost of running the Injury Board itself has resulted in little or no saving?
So in summary, in 2011 there is a uneasy truce between the Insurance Companies and the Lawyers on behalf of the claiming (injured) public and the Injuries Board. The Injuries Board is established by Government and will remain as long as claims arise in Ireland.
It seems the Insurance Companies can and do settle claims more ef ciently without ever entering the very system they funded to set up. They grumble the Injuries Board offer too much for compensation. It does appear that the Injury Board have to offer more otherwise what is the purpose of their existence. Claimants who want to maximise their compensation will for minimum of €45 entry charge the cost of Injury Board application, get to see if an Insurance Company offer will be improved on. They usually are by as much as 25% or more in some cases.
Appendix 1 The PIAB Neck Disability Index.
If you have answered yes to a number of these you have ongoing problems which need to be carefully assessed before you nalise your case.
- Do you still suffer from pain anytime during the day or night which was notthere before accident?
- Do you have difficulty sleeping?
- Will you have to take medicine for the foreseeable future?
- Have you been left with a disability or scar?
- Have the Medical Reports said you will suffer from Arthritis in future?
- Did the Doctors say you will need surgery in the future?
- Does any physical activity such as walking or playing sport cause you pain?
- Are you unable to carry out any activity that you did prior to accident?
- Does standing or sitting for any length of time cause you pain?
- Are you nervous as a passenger when you travel anywhere?
- Do you have any problem with eating or drinking as result of accident?
- Has housework /maintaining your home become a problem and have youneeded to employ home help?
- Will you need care in your own home?
- Are you still seeing pictures in your mind of the accident which causes youdistress?
- Have you started to eat or drink more as a result of the accident?
- Do you feel yourself that your injury will not get any better and hasstabilized?
- Has your marriage/ relationship got worse since the accident?
- Have you stopped outdoor activities such as gardening or repairs aroundthe house?
- Have you lost interest in your daily life whether at work or at home?
- Do your friends tell you that you are not the same person since theaccident?
If you have answered Yes to most of these you have on-going problems which need to be carefully assessed and you need to be compensated for.
Bear in mind the reason for the Injuries Board is to deal with accident claims as quickly and cheaply as possible –that may not be in your best interest as the injured party.
