As a medical condition, tinnitus occupies unusual territory. The precise mechanics of its causation remain the subject of widespread debate and medical research. The range of symptoms and their severity, even where subjects have similar experiences of the alleged causative agent/mechanism, are broad and inconsistent.
Despite this, insurers are all too familiar with tinnitus in the context of noise induced hearing loss claims where the claimant has been exposed to decades of excessive noise. Recovery of compensation in NIHL claims has not been controversial. Awards reflect a long term and sometimes distressing condition deserving relatively generous compensation.
We can probably all relate to the temporary tinnitus often experienced following a Rolling Stones or Beady Eye concert (depending on your vintage). Short term exposure to loud noise can cause corresponding temporary threshold shift or short term tinnitus. However, new types of claims have recently become more prominent. These have been for hearing loss and tinnitus following low velocity impact road traffic incidents - often alongside claims for whiplash. This suggests an entirely different mechanism of injury from that in NIHL cases. In this article we will look at the theoretical credibility of such claims.
There are apparent similarities between tinnitus and whiplash making both susceptible to exploitation by those with an incentive to do so. Alleging tinnitus in a whiplash claim is also likely to take the claim out of the appropriate fixed fee portal. Diagnosis of either condition is heavily dependent on the history volunteered. Medical investigations rarely go beyond recording the history of symptoms given by the claimant. Even an entry in medical records only reflects the claimant's word.
Clearly, claimants could be perfectly genuine in giving such evidence. Not all claimants are. Particular lines of questioning may also be more likely to elicit a history of tinnitus. Insurers are rightly concerned that compensation is only paid to the deserving.
In industrial noise-induced hearing loss cases, it is rare to find an entry relating to tinnitus at all. Claimants usually say that they thought it was natural, there was nothing they could do about it and simply dealt with it as best they could. Claims incidence can be driven by broader commercial dynamics. No other country in Europe records as many incidences per capita of whiplash claims as the UK.
As to tinnitus specifically, research has demonstrated that having a claim for the symptoms in progress tends to make them more severe, suggesting the presence of a similar element of reinforcement and a psycho-somatic factor. The first result on a Google search for the word "tinnitus" is a sponsored link to a firm of solicitors offering to recover compensation.
Can hearing loss and tinnitus be caused by whiplash and/or low velocity impacts? Claimants often rely on a 2009 article suggesting that approximately 10% of patients with whiplash will develop otological symptoms - specifically tinnitus, deafness and/or vertigo. Association does not of course mean causation. Just because epidemiology suggests an association does not mean there is evidence to establish a causal link in law. There might be alternative causes for the hearing loss and tinnitus including auditory processing disorder (“APD”), psychosocial factors and malingering / secondary gain.
The accuracy of pure tone audiometry itself relies on accurate responses from the test subject. Where audiometry tests are carried out on those complaining of whiplash and hearing loss shortly after the incident in question, confounding factors such as headaches and inattention may undermine their reliability. Even the epidemiology is open to question. The studies that have taken place to date tended to lack both a proper control group and statistical power (another way of saying the number of patients enrolled in the studies has typically been too low) to be persuasive.
There are good scientific reasons for doubting the potential for a causative association between whiplash and tinnitus. The lack of observed abnormalities in pure tone audiometry suggests that a cochlear and auditory pathway pathology is unlikely. There are alternative explanations for the apparent association. It may be that these conditions are just part of a widespread trend of over medicalisation and compulsive labelling.
Alternatively it could be that the prospect of damages itself plays a part - whether consciously or unconsciously. In Lithuania, 202 whiplash victims were studied over the long term against a randomly selected sex and age matched control group from the same population. No significant difference in symptoms was found. As matters stand, there is simply not the evidence that whiplash can itself cause hearing loss or that tinnitus is a pathological response in low-impact road traffic collisions.
Practitioners should avoid the apparently attractive, yet ultimately facile, proposition that because two things happened together they have a causal link. That is an unscientific approach which the courts should as a matter of policy be very slow to endorse. The courts are wrestling with causation in a variety of different personal injury claims at the moment, where medical science lags behind the litigation of various diseases.
The complex and often nebulous nature of these conditions means that an unequivocal and widely accepted study to analyse the causal link is unlikely to be forthcoming for the foreseeable future. Until then, defendants will have to ensure good quality and well researched expert medical evidence and legal advice is obtained to expose the fragility of the platform on which these arguments are advanced.
Christian Carr
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