Standing in the claimant's shoes - Significant costs that are often overlooked

Recent personal experience of injury, combined with therapy knowledge and considerable medico-legal experience, has proved to be food for thought!  I am an Occupational Therapist (OT) by background and for many years worked as a Rehabilitation Cost Consultant before becoming responsible for the quality of reports prepared by a team of experts.  Shortly after taking early retirement I sustained a serious injury to the shoulder on my dominant side.  Recovery has involved several surgical interventions with further major surgery to come. I have significantly reduced range of movement and strength and considerable pain.

Sowden v-Lodge clarified the law on the importance of defining what is needed before deciding what is reasonable to meet a need and this has been picked up in later judgments and applied to other heads of damages as well as care. On reflection I think many Experts underestimate the real cost of even relatively minor disability. This article aims to bring a personal perspective on how additional costs within a claim might be identified. I have chosen to use examples where I have analysed specifically what equipment or provision I need to enable me to be as independent as possible.

In my own case I have a passion for gardening, providing a choice between raised beds or a gardener or equipment would not be appropriate as I use all three. The capital cost of the raised beds does not negate the need for equipment that can be used one-handed or the regular services of a gardener to do the tasks that simply are not possible.  There may also be some family time to value; for example my husband now cuts the lawns. Considerable time may be needed to research specific pieces of equipment that can be used in a particular manner but that are not specialist pieces of disability equipment.  My two most used pieces of garden equipment are a small handheld rechargeable battery operated cutting device that allows me to trim edges and around trees and a small hand fork with the tines bent at 90° which allows me to weed and dig my raised beds one-handed.  A one-handed tray is useful both for moving multiple small pots as well as taking cups of tea outside.

When considering care, the Expert really needs to drill down to find out the effect of pain and fatigue following activities. Continuing with the gardening theme I will often choose to do activities that I know will result in pain and fatigue because I get pleasure from the activity and this is important to my wellbeing.  When your body adapts to working one-handed you use your trunk muscles much more which adds to the effect of fatigue. The result is often that I am too tired/in pain to cook the evening meal and in a claim situation this would need to be reflected in the care costs. If your life is restricted by disability it is even more important that you are able to engage in meaningful activity as this considerably enhances mental health.

Driving is another example of where Experts need to consider the possibility of several different additional costs. In my own case I have had my cars adapted to drive one-handed with a steering ball and Bluetooth technology but that is not the only solution needed. For short journeys locally I have no problem driving our main car but driving for more than 40 minutes is challenging. The action required of the unaffected arm is quite different to the normal driving position and results in cramping in the arm as it gets tired.  Motorway driving is particularly hard as holding a powerful car steady requires more effort. One also has to concentrate more on keeping one's seated position as it is more tiring for the trunk muscles. It is much easier to keep my seated position in a sport seat than in the more traditional car seat of a second vehicle which I only drive very short distances. Replacement with automatic vehicles adapted for single arm driving, sports seats and the lightest steering possible should be considered for all vehicles regularly driven. For long journeys I require a driver and if working I would need a driver for all journeys to enable me to use all available energy for work. In my case I believe I would be able to fully justify the provision of two fully adapted vehicles as our two vehicles fulfilled different functions and I need to be able to drive both.

Sometimes Experts need to be creative in finding a solution, for example I enjoy walking and have a large dog that needs exercise but I am unable to hold him with one hand. I also need assistance at his agility class.  My solution has been to find some volunteers who would like to accompany me and manage the dog. The usual provision of a dog walking service would not meet my requirements but recruitment of a person for two hours a day every day to walk with me would be more appropriate.

I hope that by sharing these personal insights it is clear to those managing claims that in-depth assessment of the very specific needs of the individual can generate additional costs in all areas of the claim. Additional care in particular will be able to be costed if it can be shown that meaningful occupation, whether work or leisure, resulting in pain and/or fatigue may require additional care. I worked as an Expert for over 20 years but my perspective has been changed by what has turned out to be a life changing injury.  I have had the benefit of being an OT and being able to work out what would help me but most claimants are not so lucky and need expert help.

Author: Elizabeth Waterman, Occupational Therapist and owner of J & E Waterman Ltd.