Following the introduction of LASPO, Keoghs has identified an increase in the number of claimants alleging to have suffered tinnitus as a result of a road traffic accident. Whilst some ear, nose and throat (ENT) experts suggest that there is a causal link between whiplash and tinnitus, it is not always the case, particularly in low impact collisions.
There is a real financial incentive for both claimants and claimant solicitors to prove such injuries. 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.
There will be genuine tinnitus claims. Research* indicates that 10% of patients who suffer whiplash will develop otological symptoms such as tinnitus, deafness and vertigo.
However, tinnitus is unlikely to develop following a low speed impact and therefore its diagnosis in claims of this nature should be challenged.
In our view, one of the key issues insurers will 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.
From a claims handling perspective it is important to request sight of the claimant’s medical records and work history. There are a number of red flags which may assist in defeating the claim or mitigating its value, therefore we suggest that the below is undertaken:
Symptoms should usually occur immediately or within a couple of days of the accident.
The causes of tinnitus are the same as hearing loss. Records should be checked carefully for entries relating to noise exposure or pre morbid aetiology. Alternative explanations for causation can include but are not limited to:
This can be classified as slight, moderate or severe and will affect the value of any award if injury is proven.
To find out about the claimant’s symptoms and onset in addition to their working and medical history.
Consider whether the symptoms are bilateral or unilateral and in keeping with the point of impact.
Use questions to medical experts to cross reference subjective accounting/medical history and severity.
If in doubt, obtain your own ENT report.
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.
Our collaborative approach utilises the experience and technical knowledge of our award winning disease team alongside the market-leading skills and processes of our motor fraud and fraud rings teams. This combined approach enables clients to maximise fraud savings on individual cases whilst taking steps to encourage medical experts and claimant solicitors to improve their practices.
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 enable further efforts to only be pursued on those cases with the strongest fraud risks and best prospects of successful conclusion. This will minimise costs and maximise 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.
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