Keoghs Insight

Author

Carrie Hoey

Carrie Hoey

Partner

T:01204 672395

Tinnitus on the rise

AWARE25/02/2019
Personal Injury aware

Since the introduction of LASPO and the following adaptation of the claimant market to suit the changed rules, Keoghs identified an increase in the number of claimants alleging to have suffered tinnitus as a result of a road traffic accident – which has started to become more prevalent in the last few months as further reforms come closer to implementation. Whilst some ear, nose and throat (ENT) experts suggest that there is a causal link between whiplash and tinnitus, it is certainly not always the case, particularly in low impact collisions.

Allegations of tinnitus were once confined to serious accidents, typically those involving significant head injuries, but are no longer dictated by the severity of the accident, so why the rise?

There is a real financial incentive for both claimants and claimant solicitors to prove such injury. Not only does it inflate damages (the JCG Guidelines suggests awards can range between £5,000 and £38,000 depending upon the severity of the condition), but it may also increase the costs of litigation either by allowing the claimant to exit the fixed recoverable costs regime, or by the introduction of additional expert evidence.

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.

Key issues

One of the key issues insurers face when handling claims is how to determine whether the symptoms are genuine. The diagnosis of tinnitus is purely subjective and is entirely based upon the claimant’s account of their symptoms.

There will be genuine tinnitus claims, and research indicates that 10% of patients who suffer whiplash will develop otological symptoms such as tinnitus, deafness and vertigo. How do we therefore 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, and is prevalent within the general population who have never been involved in a road traffic collision. For instance a (non-exhaustive) list of examples include:

  • 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
  • Smoking
  • Presbyacusis (old age)
  • Ototoxic medication – e.g. some cancer treatments
  • Childhood illness, for example, measles
  • Meniere’s disease
  • Anaemia
  • 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?

A Strategic Response

An overall and collective strategy is crucial since the claims market is adept at identifying weaknesses in knowledge and approach to handling, with those lagging behind the curve likely to find themselves being exploited.  By keeping ahead of the field our clients can positively gain in robustly dealing with these claims, appropriately utilising claims spend to keep damages and costs down, whilst providing a deterrent to exaggerated and fraudulent tinnitus claims in the future.

Keoghs approach

From a claims handling perspective it is important to undertake a forensic examination of the facts. Adopting a rigorous analytical methodology enables the identification of red flags which are likely to assist in either defeating the claim or mitigating its value.

We take a collaborative approach that utilises the experience and technical knowledge of the largest disease team in the market alongside the award-winning and market-leading skills and processes of our motor fraud and fraud rings teams. This combined approach 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 which is applied specifically to road traffic cases which involve 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 and if set off will lead to the case being referred on to our specialist RTA/Tinnitus team. This provides our clients with the confidence and assurance that the right claims are being targeted for challenge, and ensures that effort and resource is diverted to appropriate claims rather than being wasted on hopeless cases or claims which merit taking a commercial approach.

Once a claim has been referred to our specialist handlers, careful consideration is given to each case to ensure the referral is warranted before strategy is considered and implemented.

Typical encounters

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 have caused whiplash is equally unlikely to have caused tinnitus.

Check the onset

Symptoms should usually occur immediately or within a couple of days of 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 pre morbid aetiology. Alternative explanations for causation are most likely to be identified in the first instance 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

To 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 and will affect the value of any award if injury is proven. 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 ultimately, alter errant solicitor/medical expert behaviours.
Implementation of a counter fraud strategy is vital since it provides 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, the long term measure of success in providing a deterrent is likely to be objectively reflected in long term statistics. However it is logical to conclude that the quicker the market is at reacting to this development, the sooner the rise will fall.