Tinnitus on the rise
Keoghs Disease and Abuse Aware 2018
Following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), Keoghs has identified an increase in claims alleging tinnitus following a road traffic accident.
Whilst some Ear, Nose and Throat (ENT) experts suggest there is a link between whiplash and tinnitus, this isn’t always the case – particularly in low impact collisions.
Allegations of tinnitus were once confined to serious accidents, typically those involving significant head injuries. That seems to have changed, so why the rise?
There is a real financial incentive for both claimants and claimant solicitors to prove such an injury. It inflates damages (the Judicial College Guidelines suggests awards can range between £5,000 and £38,000, depending on the severity of the condition). It may also increase costs either by allowing the claimant to exit the fixed recoverable costs regime or by the introduction of additional expert evidence.
A strategic response
An overall strategy is crucial since the claimant market is adept at identifying weaknesses in knowledge and approach to handling. Those lagging behind are likely to find themselves being exploited. By keeping ahead our clients can positively gain in robustly dealing with these claims, adopting a proactive approach and appropriately utilising claims spend to keep damages and costs down, whilst providing a deterrent to exaggerated and fraudulent tinnitus claims.
One of the key issues insurers face when considering claims is how to determine whether the symptoms are genuine. The diagnosis of tinnitus is purely subjective and is entirely based on the claimant’s account of their symptoms.
There will be genuine tinnitus claims. Research* indicates that 10% of patients who suffer whiplash will develop ontological symptoms such as tinnitus, deafness and vertigo. How do we differentiate the false or
exaggerated claims? Tinnitus is a condition which can arise constitutionally. It can also develop as a result of a number of other factors. It is prevalent within the general population.
- Acoustic trauma (including gunfire) - 60-80% of cases show the occurrence of tinnitus
- Occupational noise exposure
- Psychological trauma – linked to periods of stress and depression
- Presbyacusis (old age)
- Ototoxic medication – e.g. some cancer treatments
- Childhood illness, for example, measles
- Meniere’s disease
- Perforated eardrum or other injuries to the middle and/or inner ear
Whilst tinnitus might be present, how do we exclude the possibility of tinnitus due to other causes?
It is crucial to undertake a forensic examination of the facts. Adopting a rigorous analytical methodology enables the identification of ‘red flags’ which can either defeat the claim or reduce its value. We take a collaborative approach to combine the experience and technical knowledge of our award-winning disease team alongside the market-leading skills and processes of our celebrated motor fraud and fraud rings teams. This ensures the right cases are identified and enables clients to maximise fraud savings on individual cases, whilst taking steps to encourage medical experts and claimant solicitors to improve their practices.
We have developed a bespoke checklist to apply specifically to road traffic cases with an allegation of tinnitus and/or hearing loss. The checklist is dual aspect, scoring the tinnitus and flagging the potential presence of fraud. Trigger points are set within the checklist which can refer the case to our specialist road traffic accident/ tinnitus team. This provides our clients with the assurance that the right claims are being targeted for challenge, and ensures that resource is diverted to appropriate claims using a commercial approach. Once a claim is accepted by our specialist handlers, a strategy is devised and implemented.
Case A: The claimant’s vehicle was struck by another vehicle on the nearside, causing considerable accident damage. Tinnitus was reported by the claimant to her GP within days of the accident. A medical expert later graded the symptoms as mild. The tinnitus resolved within six months of the accident. This claim would be a candidate for early resolution. In cases like this we would recommend offering an additional amount for tinnitus, but with any sum offered to be capped at a certain level. This settles a reasonable claim for quantum whilst keeping costs down, and also demonstrates that any damages paid will only be at a reasonable level. Unrealistic quantum demands will not be tolerated. Our clients will not overpay.
Case B: The claimant attended his GP after the accident but only whiplash was reported. Despite frequent attendances over the next six months, there were no complaints of tinnitus. An ENT expert has reported for the claimant and considers the condition to be permanent. A court award for this would be around £15,000 for the tinnitus alone. This claim would be referred to our specialist team since both ‘tinnitus scoring’ and ‘fraudtriggers’ would be engaged.
These are the features to look for:
Consider the accident circumstances
A low impact collision unlikely to cause whiplash is equally unlikely to cause tinnitus.
Check the onset
Symptoms should usually occur immediately or within a couple of days after the accident. Is there a contemporaneous report of the symptoms or is the tinnitus an afterthought to increase damages?
Obtain the medical records
The causes of tinnitus can be the same as for hearing loss. Records should be checked carefully for entries relating to noise exposure or earlier symptoms. Alternative explanations for causation can be identified by taking this simple step.
Obtain personnel and occupational health records
Many employers now routinely provide occupational health and back to work assessments for staff. These records can sometimes be useful in testing the veracity of evidence, particularly if there has been no post-accident GP attendance.
Use Part 18
Find out about the claimant’s symptoms and onset in addition to their working and medical history.
Consider the symptoms
Do symptoms correlate with the severity of collision? Is the grading applied justified by the description given? Tinnitus can be classified as slight, moderate or severe. This affects the value of the claim. It is inconceivable that someone with a severe degree of tinnitus would not have mentioned this and refrained from seeking medical assistance. Also, consider whether the symptoms are bilateral or unilateral and in keeping with the point of impact.
Consider CPR 35 questions
Use questions to medical experts to cross-reference subjective accounting/medical history and severity.
Obtain your own report
If in doubt, obtain your own ENT report.
Fraudulent tinnitus claims
Keoghs seeks to tackle suspicious tinnitus claims by adopting a robust and consistent strategy which aims to defeat the claims and so alter errant solicitor/medical expert behaviours. There are three distinct phases to tackling suspect tinnitus claims:
The identification of claims displaying a potential fraud risk is a vital part of the process. Bespoke fraud indicators should be applied to claims to capture as many cases as possible for validation.
The fraud risks identified then need to be validated swiftly – to direct resource towards cases with the strongest fraud risks and best prospects of successful conclusion. This minimises costs and
maximises potential fraud savings.
Once suspect claims have been validated they need to be investigated in line with the strategy for the case/ group of cases.
Suspect claims can be repudiated or settled via negotiation – using the fraud concerns identified to realise savings.
A counter-fraud strategy is vital to offer an active deterrent to claimants and enablers who otherwise seek to exploit the claims process for financial gain. Whilst tinnitus claims are presently on the rise, they should be met by a coherent long-term counter-strategy. The quicker the market reacts to this development, the sooner it will be checked.
* A review of the ontological aspects of whiplash injury, Journal of Forensic and Legal Medicine -Volume 16, Issue 2, February 2009, Pages 53-55.