Falling on Deaf Ears – November 2015

This article originally appeared in Modern Claims Magazine, Issue 16, November 2015Falling on Deaf Ears

It’s an expression I’ve heard and used over the years, but after reading the ABI’s report, “Noise Induced Hearing Loss Claims. Improving the Claims System for everyone”, published in the summer, it seems more apt than ever when attempting to rationalise the ABI’s approach to all claims, not just those detailed in that report.

We also saw in the report, the highly pejorative term “compensation culture” creeping back in to the rhetoric, having been, we had hoped, put to bed following the raft of changes to the PI claims process over the last 5 years. Such changes included the extension of the RTA portal, the introduction of the EL and PL Portals, coupled with the work in progress that is MedCo, and of course the introduction of fixed fees, across the entire PI sector. All of which were been driven by an extremely powerful ABI, relying on their own statistical data, which as we have subsequently come to learn, is less than accurate. So forgive me if I read the ABI’s most recent report, the first instalment of two, somewhat cynically.

Despite all the changes, and the cooperative and dignified way in which PI practitioners have presented themselves in recent years, we find ourselves once again being quoted at by the ABI , with more headline grabbing data, massive percentage figures and media hyperbole. But unlike the ABI, PI practitioners are unable as a collective to confirm or deny if the numbers of industrial deafness claims are on the increase, and it is interesting to note how much emphasis is put in the report on the “hike” from 2010 to 2013, but yet little attention paid to the significant drop in claims in 2014, compared to 2013.

But why are the ABI in such a tizz about this alleged increase? And what if the numbers are up? Are the ABI once again suggesting that nefarious and fraudulent behaviours by both PI practitioners and their injured clients are the drivers behind this alleged rise? It appears to me that they are they simply unwilling or unable to accept that PI practitioners are reacting to changes in their market, and are diversifying into different areas of PI work, as a means of replacing income lost post Jackson. Not to improve profits, but as a means to survive. PI practitioners have looked carefully at their management information, have crunched the numbers and have gone back to the drawing board to re-write their business plans pre and indeed post Jackson.

Instead it would appear that the ABI want to label this piece of entrepreneurialism, as a “compensation culture” that needs tackling, and suggest it’s PI practitioners way of replacing whiplash type claims. For some PI practitioners, it is possibly an area of work that they have never previously undertaken, or on large scale, and as a result there may be a small number of claims brought, which probably should not. But simply because a claim fails doesn’t mean it should never have been brought. Injured people have a right to seek legal advice and legal redress, but they don’t always obtain compensation. That is part and parcel of our justice system.

And if a PI practitioner is unable to “win” the noise induced hearing cases they vet, filter and take on, it will be they who pay in the long run. Many of the hearing loss cases are processed through the EL portal, but a large number exit due to insurer behaviour. So there is the ability to apply a fixed fee in many noise cases, the fact that claims exit is out of the Claimant practitioners control. Any extension of the fixed fee regime to these claims has to be considered carefully, a task currently being undertaken by a very select working group. We await their report, due this month, with interest.

Only by working with the ABI and insurers, will we improve the way in which these claims are brought and processed, not by positioning ourselves on the opposite sides of enemy lines. Co-operation from the Defendants in such cases, represented by Insurers, would ensure a quicker and more efficient process, both in terms of claims brought, but the time taken to conclude such claims, which ultimately impacts the cost of these claims. To suggest that the activity of undertaking such work is a form of “exploitation” is merely inflammatory, and will serve no positive or useful purpose.

For many PI practitioners, branching out into NIHL work will be risky and expensive and certainly not the “cash cow” the ABI suggests, as such claims are highly complex and lengthy and to think otherwise is naïve. And there is no guarantee that every PI practitioner who undertakes noise induced hearing loss claims, will be able to do the work “profitably”. The cost will be those PI practitioners to bear, and may ultimately be their undoing.

Kate Sweeney is MASS Regional Co-ordinator for Manchester and Partner & Head of Injury Department at Stephensons Solicitors LLP

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