Updated: Oct 2, 2020
Ben Leech of Keoghs has today posted the following:
"In July’s blog, I identified differing types of late notified claims which have plagued insurers following COVID-19.
However, insurers are now facing a fresh challenge in ‘the new normal’ from a specific type of whiplash claim arising out of minor road traffic accidents. These Coronaclaims or Lockdown Farmed Claims (LFCs) are submitted into the MOJ Portal and quickly followed with a medical report prepared remotely, taking advantage of MedCo temporarily lifting the ban on such examinations. They often arise out of innocuous accidents in car parks at low speed in which injury is unlikely.
This opens the door for claims farmers to become more active in this arena. The sell to an unwilling claimant is obvious;
“The insurer has set money aside for you. You don’t even need to leave your house to claim, we’ll arrange a remote medical examination and the money will be in your account within a few weeks”.
Clear and present danger
The ease with which such claims can be submitted without any objective contemporaneous record of injury highlights a very clear and present danger to insurers. If a remote examination has not been recorded, how can an insurer be certain that it was the claimant who was examined or that the claimant is even aware of such a claim being pursued?
A further obvious risk in such cases is the extent to which a medical expert can give an accurate prognosis in the absence of any physical examination. Our experience to date has been that remote examinations are providing a longer prognosis than usually seen in minor road traffic accidents. We are also seeing an alternative approach where the claimant solicitor defers to a further expert, normally an orthopaedic expert, in what is simply a claims layering exercise.
Insurers would be well advised with such claims to request that any medical examinations are recorded for evidential purposes. This will help ensure that the person examined is in fact the claimant and that they are providing proactive instructions. Moreover, once the medical report is disclosed, the insurer can seek inspection of the recording of the medical examination.
The issue of disclosure and inspection of such recordings was considered by Mr Justice Martin Spencer in MacDonald v Burton 2020 EWHC 906 (QB);
“In my judgment, the waiver of privilege in relation to a medical examination of a claimant by his own medical expert when that report is disclosed to the other side, should and does entail waiver of all aspects of the examination by the medical expert…in relation to a recording of the examination itself, I consider that the disclosure of the report carries with it a waiver of privilege of the recording.”
Similarly, a party cannot withhold inspection by reliance on Data Protection legislation as those provisions do not apply to personal data where disclosure of the data is otherwise necessary for the purposes of establishing, exercising or defending legal rights.
As with Late Notified Claims, the appetite of the claimant must be tested with an LFC, whilst it remains the case that, for every CNF submitted, the claimant’s legal representative must have written authorisation to submit. Insurers would be well advised to seek a copy of this authorisation under Paragraph 6.6 of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013.
If remote examinations are to be used then this would seem a strong basis to rebut the suggestion that the medical expert does not need to see the medical records and the insurer should make it clear that records ought to be disclosed.
The recent case ofPegg v (1) Webb (2) Allianz Insurance PLC  EWHC 2095 provides clear guidance that a claimant failing to provide an accurate medical history to the medical expert faces the very real risk that their claim will be found fundamentally dishonest.
An insurer taking these steps will protect themselves from both unscrupulous claims farmers seeking to take advantage of the new norm and dishonest claimants seeking a quick buck in pressing financial times from an accident in which they did not sustain injury.