Claims Ireland

Action to be taken by:

What to do…

Claimant

Employer

Broker

Insurer

Before an Accident occurs

Employees should be aware of their own duty of care under H&S Legislation. Employees should make sure that they are aware of the accident reporting procedures in place at their place of work.

Remind employees of the need to report all accidents immediately to the relevant person. Reinforce this message. Ensure that all managers who might be notified know what to do and that it must be done immediately. Establish a system for communicating with brokers/insurers.

Advise all clients of the need to respond immediately to accident notifications and the real danger that failure to promptly pass on notifications and letters of claim will result in increased costs, bad outcomes and even repudiation by an insurer.

Insurers should ensure that all broker and direct clients whose policy has an employer’s liability section are aware of the provisions of the act. An urgent fast-track notification procedure should be put in place for when a letter of claim or especially a Section 13 notice from PIAB is received.

When an accident occurs

Notify the employer even if no claim is intended.

Note the 3-day rule for HSA notification and advise brokers/insurers according to agreed procedure.

Pass any notifications to insurers without delay. Ensure that there is action is taken where that is appropriate.

Notifications may require more attention than before and careful attention should be given to more serious accidents at the earliest stage.

When a claim is being made

As part of his submission to PIAB the claimant must submit a document that has been sent or given to whoever he believes to be liable and copies of any other correspondence between the parties. Medical reports, receipts and vouchers may be sought as this stage also.

The bill makes it clear that the initial communication between the employee and the employer notifying of the claim and seeking the payment of damages is a very important one. Any document that could be construed in this way should be sent immediately to brokers/insurers.

Clients may for example receive a letter that is “woolly” or unclear. If it has the two key components:

Notification of a claim

Seeking compensation,

it will be a qualifying letter under the bill and must be passed on.

This letter is likely to be written with a view to submitting the case to the PIAB. It may be followed very soon by a notice from PIAB. Investigation should become a priority at this stage if the case was not already investigated as a notification. Expert investigation will be essential to establish if there are any liability issues and also to ensure that there are no other parties that will need to be joined.

When a Notice issues from PIAB under Section 13 advising that an application has been made. This notice will request that the employer reply in writing within 90 days whether they consent to an assessment being made by PIAB.

The claimant must wait at this stage to see how the employer will respond. He can seek legal advice at any stage but the costs will not be covered as part of the assessment.

The employer needs expert advice from broker/insurer at this stage. If they agree or if they fail to do anything in the time allowed, the case will proceed as an assessment. If they refuse the claimant will be given a release (known as an Authorisation) by PIAB. This will allow the claim to be taken through the courts.

Any action or inaction on the client’s part at this stage will have serious repercussions. Decisions should be made on the basis of investigations that will have taken place at this stage. If the broker is aware that there has not been an opportunity to investigate before this, every step should be taken to resolve that.

If for any reason the case has not been investigated at this stage it must be done now. Refusal to allow an assessment will have serious costs implications. Allowing an assessment to proceed where it should not may make it very difficult to bring in culpable third parties. It will at best involve the difficult decision at a later stage to reject the assessment. This will again discredit the initiative and possibly have serious costs implications. In cases where an indemnity is being provided, PIAB will deal directly with insurers.

When the employer consents to an Assessment.  (It should be noted that if either party seems not to understand the legal consequences of not completing a step in the process, PIAB must provide information or assistance.)

The employee may be asked for additional documents, to cooperate with experts, or to submit to medical examination. By making the claim, the employee has consented to the Revenue Commissioners supplying information to the PIAB Assessor.

The respondent has a chance under Section 24(1)(a) to say that they do not think that a medical opinion expressed in the papers submitted is correct.

It is very important that any information or suspicions that the client may have are passed on to the Claims Handlers at this stage. This fast moving process will require prompt action if there are real doubts.

Claims Handlers will be the prime movers at this stage and will largely be operating without legal advice. Section 25 effectively says that if the respondent has expressed doubts or suspicions and the claimant refuses to attend a medical, PIAB should proceed on the basis that the doubts are correct and assess the claim on that basis. It will be important to ensure that PIAB make any relevant enquiries with bodies such as the Revenue Commissioners.

The Assessment is issued in writing by PIAB in a Notice.

The claimant has 28 days to state in writing if he accepts the assessment. If he fails to respond in the time allowed he will be deemed to have rejected it.

The respondent has only 21 days to accept or reject the Assessment.  Again failure to respond will be taken as acceptance.

21 days is a very short period. It will be important to make sure that the client is aware of the importance of this document and the necessity to forward it as soon as possible.

In many cases the insurer will be dealing directly with PIAB and will be aware of the Assessment.  Once it is to hand a decision will need to be made. If both parties accept the assessment it becomes binding and an Order to Pay is issued.

If either party rejects the Assessment an Authorisation is issued by the PIAB

The claimant seeks legal advice and the claim is taken before the courts.

The employer passes any correspondence received to the broker/insurer in the usual way.

The broker passes on the correspondence as appropriate.

The insurer deals with the claim much as they would now except that they will hopefully have more detailed information to facilitate handling. If of course they were to be consulted for the first time at this stage there would be very serious issues under the notification conditions of the policy.