Guide to whiplash claim culture
Russell Thomson is an injury claims lawyer working at The Injury Lawyers, who explains that while whiplash is a clear and serious issue, the whole subject of whiplash claims has become badly distorted through insurance companies selling customer details for referral fees.
Like Tony Blair and his “Education, Education, Education” speech at the start of Labours last bout of parliamentary power, the topic we’re looking at here is “Whiplash, Whiplash, Whiplash” – it’s all about whiplash!
You have heard all about it in the news, and you may well have experienced it yourself, or know someone who has made a whiplash claim. The fact that remains in today’s society is the real negative viewpoint people have of this injury. So I decided, as a representative of a firm of lawyers that deal with whiplash, and a whiplash sufferer myself, to give you some enlightenment from the other side of the coin; because all you will hear about in the press is everyone slating the validity of whiplash as an injury.
Is whiplash even a real injury?
Well, yes, of course it is. If you grab an elastic band and stretch it, it returns back to normal so long as you haven’t pulled it too far. Which is kind of my point; stretch it too far and you will either shred it or snap it. Pull anything too much and it will eventually ‘give’ and break or stretch too much and cause damage.
There are apparently over 50 muscles in the back structure alone. Now, imagine 50 muscles being stretched beyond their normal range of movement, and hey-ho, you have whiplash! It’s not always just a little bit of an ache that goes away over a few days; it can sometimes be a severely debilitating injury that is caused by the muscles in the neck, back, and shoulders being pulled beyond their normal range of movement.
Upon an impact or a sudden stop, you are thrown forwards and backwards within the restraint of your seatbelt, assuming you are wearing one. This lurch forward is what stretches the many ligaments and tendons in the neck, shoulders and back structure beyond their normal range of movement, resulting in obvious damage to them. You can pull a muscle in your leg from playing football – a similar principle applies. So yes, whiplash is a real injury.
But we hear too often in the news about it being difficult to diagnose. I’m not sure why really, because whiplash is diagnosable – there are physical symptoms that can be felt. A person with whiplash may have stiff areas in the neck, shoulders and back which are definable to the human touch. The stiffness is caused by the damage which was caused by the overstretching of the muscles. Yes, there are occasions where it may be more difficult to see; but with a little common sense and deductive logic, apply the earlier principle of muscles being overstretched in an impact or a sudden stop and its quite clear to understand you can end up with a whiplash injury.
When it comes to making a claim, the injury must be medically assessed to prove its validity. An assessment with a qualified medical expert who has access to the Claimants medical records is a common part of the claims process. A report is completed and the expert will give their opinion as to the severity of the injury and the affects it has had on the Claimants life. The expert is entirely independent – their duty is to the court, NOT to the Claimant; so there is no bias. They get paid for their work either way, and they must give their professionally qualified opinion. They will only agree with what is reasonable in the report.
Surrounding the “whiplash epidemic” or “whiplash problem” as its often termed is the government’s movement to ban personal injury referral fees that are thought to be at the centre of a surge in whiplash claims over the last decade. However, there appears to be a cultural trend that has crossed over in to the campaign to rid the UK of the referral fee system which focuses on whiplash itself being the problem; which it isn’t.
Yes, whiplash claims can be sometimes difficult to prove; however, former Justice Secretary Mr Jack Straw has lost a great deal of respect for the following quotation from a speech regarding the bill in the House of Commons last year:
“Often such claims are for whiplash, which is not so much an injury, more a profitable invention of the human imagination—undiagnosable except by third-rate doctors in the pay of the claims management companies or personal injury lawyers”
This is what I will professionally term as a “seriously stupid statement”. The above is not true. As I said earlier, whiplash IS diagnosable, and it CAN be felt to the human touch. The experts that are instructed are not “in the pay of the claims management companies or personal injury lawyers”; in fact, their fees are recovered from the insurers, and the expert, who must be independent, must be agreed with the insurers before instruction. The insurers have the right to object to any proposed experts, and can even get their own medical evidence for claims!
Quickly turning to my own experience of whiplash, which I am still suffering from since last May (although one reason may be an unrelated leg injury I have from this January that may have exacerbated the whiplash through the use of crutches for months), I was seen by a Trauma and Orthopaedic Surgeon with all the qualifications to boot.
I therefore ask the right honourable gentleman speaker Mr Jack Straw if he is seriously suggesting that the Trauma and Orthopaedic Surgeon I saw for my medical report whom confirmed my whiplash is nothing more than a “third-rate doctor”!?
Furthermore, was the qualified physiotherapist I received treatment from also some useless “third-rate” practitioner whom just wasted her time poking and prodding my back for no good reason? Were these two medical professionals both lying when they could feel the damage in my back muscles which I still get trouble with today, and never had issues with prior to the accident? Am I, Mr Straw, also lying through my back teeth because I want a quick cash payout for an invented injury?
Are you calling us all liars, and claiming that the firm I work for is fraudulently suing the bus company responsible for my injuries?
The real issue is simple – due to the referral fee system that insurance companies push people in to making claims through, we see a higher proportion of fraudulent or frivolous claims. There could easily be a small minority who could try and “milk the system” but that doesn’t mean all whiplash sufferers are doing the same. There are, and have been in the past, unbelievable amounts of people cheating the benefits system, for one example. The simple fact is that these are not symptoms of a “whiplash problem” but rather more they are the common symptoms associated with anything that involves financial gain in today’s society. You simply cannot escape fraud!
So what about the lawyers claiming high fees for whiplash claims? Well as a matter of fact we lawyers are capped to restricted legal fees, so that’s not really an issue. The fact does remain however that a lawyer is needed to protect the rights of the Claimant from being fobbed off by the insurers.
Third Party Capture is a term used to describe the insurers of the party at fault contacting the victim to settle the claim directly. The amount of times we get calls from people who have been suffering for two months and the insurers are sticking to their offer of £500.00 is unreal. The insurers know full well that a two month whiplash injury is worth more than £500.00, yet they see the opportunity to save themselves some money by purposefully trying to under settle a claim. Where is the justice in that?
In the past, insurers would pay independent companies and agents to settle claims directly with the innocent victims. The cheaper the claim was settled for, the more commission these agents would receive. It’s no secret that insurers have, and will continue to try and save money at the expense of the victims to which they are legally responsible for paying out. Think of it like this – you get your vehicle assessed for valuation of repairs before you settle the claim with the insurers; why wouldn’t you do the same for your injury? This simply requires a lawyer.
So how do we solve the problem?
Well, realistically, there isn’t a problem per-se. There are no more problems than there already are in other situations in life were people can “milk the system”. All this talk of cutting whiplash claims and making it harder to make a claim will only serve to be an injustice for the majority genuine whiplash victims who have suffered at the hands of a negligent driver. We have car insurance for the sole purposes of making a claim from – it’s there to be used! Perhaps what we should be focusing on is making sure there are less dangerous drivers on the road, and improving safety in vehicles to prevent or reduce the damage a whiplash injury can cause. Research is already underway in to ways that vehicles can prevent a whiplash injury, or reduce the affects.
We can of course continue to improve efficiency in the way claims are dealt with, but the new system we have had since 2010 whereby legal fees are further reduced and claims are dealt with through an online portal system is pretty efficient.
So, to our dear government who are content on making life cheaper in today’s harsh economy (irrelevant of whether it’s for the votes or for the greater good!) – look closer and focus on the real problem at hand! We know insurers are the top conspirators for referral fees and pushing people in to making claims, so step one is complete the legal ban, and step two is making the process even more efficient.