CAR INSURANCE EDITORIALS

The complexities of whiplash

1. Most claimants that present with alleged whiplash seeking compensation are grade 1 for which there is no diagnostic test and therefore fraudsters can mislead their medical assessors about the true level of symptomatology.
2. A medical expert's primary role is to advise as to whether his clinical assessment would support a diagnosis of whiplash associated disorder (WAD) or not. The usual medical approach is to assume that patients are telling the truth unless there is clear evidence that they are not. In reality, it's fairly easy to fake neck pain if a fraudster wishes to do so.
3. The Transport Select Committee in its recent follow up report on the cost of motor insurance has spoken of a need to 'raise the bar' whereby more objective evidence would be needed for whiplash compensation to follow. However, what that objective evidence would be was left vague. Their fall-back, should voluntary raising of the bar fail (which it will, as the claims industry will be able to protect its interests) then they advocate legislating so that "objective evidence" of whiplash or evidence of "a significant effect on the claimant's life" will be required. However, as stated above, there is no objective evidence of injury, except where that injury is severe, while quite how practical it will be to establish "a significant effect on the claimant's life" and whether this evidence could also be manipulated  remains to be seen.
4. Injury lawyers argue that the burden of proof currently, as in any civil action, is on the claimant to establish evidence of injury and that defendant insurers could work harder to challenge those cases in court that they wish to dispute, so developing case law that would inform future cases, a process that has occured with, for example, asbestosis and other occupational diseases. Insurers counter, reasonably, that if a whiplash claim is supported by a medical expert's report, that they can anticipate losing most of these cases in court which would greatly inflate their costs, further reducing value to car insurance consumers who would meet that additional cost via raised premiums.
5. Medical research is evolving and informing the debate. Recent research from the Netherlands, for example, has shown that alterations in baseline muscle tension in the trapezius (neck) muscle is measurable after exercise in those effected by whiplash, but only in those with grade 2 WAD, not the grade 1 injury generally alleged by fraudsters.
   
6. It would appear that, in effect, the Transport Select Committee and other stakeholders are looking for medical experts to start to apply some new level of clinical assessment whereby a more objective test of whiplash might be applied but the problem is that no such test exists - or is likely to exist in the near future - that can definitively rule in or rule out a significant whiplash-related neck injury.

• For Thatcham, the insurance industry-funded research organisation, to fund an independent expert medical review of the current status of the medical science with a view to generating a medical assessment protocol that is (medically) peer reviewed, independent of the insurance industry, with, where necessary, recommendations for any future research which should also be Thatcham-funded. The insurance industry has a ready supply of whiplash cases on which to draw for this research. Independent funding for all of this would be preferable but unlikely to be easily secured.
• Commentators and legislators need to grapple with the fact that there usually is no objective evidence of injury to draw upon and there is therefore a need to clarify exactly how evidence of "a significant effect on the claimant's life" might be gathered in a practical and objective manner. Legislation for this proposed "raising of the bar" would be needed and it might usefully provide clearer pointers as to what this evidence should be which, if not in the primary legislation, would form part of the guidance notes relating to it.
• The context of the increasing numbers of injury claims needs to addressed (see our 28 recommendations to reduce the cost of car insurance, many of which relate to excesive injury claims) and central to this is the need to bring the claims industry, especially claims management firms, under tighter regulatory control.