21-06-2019

Is deafness the new whiplash (again)?

Tinnitus, that ringing in the ears commonly associated to noisy environments and heavy industry. But how is tinnitus becoming associated to road traffic accidents?


Tinnitus, that ringing in the ears commonly associated to noisy environments and heavy industry. But how is tinnitus becoming associated to road traffic accidents?

What can cause tinnitus?


An exact cause has not been identified but it is thought to a problem with how the ear hears sounds and how the brain interprets them. Sufferers can sometimes also hear a number of other noises such as buzzing, hissing or whistling. A common occurrence is a noise left in your ears after a loud concert known as a 'temporary threshold shift'.

Tinnitus can develop as a result of inner ear damage but it can develop as a result of many other factors such as age-related hearing loss, repeated exposure to loud noise, an ear infection, high blood pressure, diabetes, reaction to certain medications or an overactive thyroid gland. Those representing claimants are now pushing minor road traffic accidents as another cause of this injury.

Why are claims for tinnitus high risk?


Basically, tinnitus is the whiplash of the ear. There is no objective test. Whilst it may be possible for tinnitus to arise as a result of a head trauma or loud noise, its absence historically in claims following 'routine' road traffic accidents suggests that this is not probable.

Tinnitus can be easily exaggerated or even fabricated, much like a claim for whiplash in a low speed impact and as such is an area that should be considered high risk when pursued following a road traffic accident.

Our experience of these claims indicate that these claims are enabler-led; by this we mean claimants are influenced and encouraged to present tinnitus claims.

Responding to claims for tinnitus


The lack of a history of these claims means insurers and compensators have no significant experience of complaints of tinnitus in routine road traffic accidents with whiplash injuries.

There are a number of factors to consider when presented with a claim for tinnitus. The presentation itself may be considered sufficient to raise concerns of an exaggerated or fabricated claim, particularly in routine accidents.

Consider carefully the following:

-  How was the claimant injured in the accident? Was there head trauma or a loud noise?

-  When does the claimant say the tinnitus began?

-  How do the parties describe the collision?

-  What was the speed of impact?

-  What is the extent of the damage the vehicles involved?

-  Was there air-bag deployment?

-  Was the claimant suffering with hearing loss or tinnitus before the accident?

-  What does the claimant do for a living - is it noisy? Might there be an alternative cause?

-  What are the claimant’s hobbies e.g. shooting, music – concerts, bands, orchestras etc.?

-  When was the onset of tinnitus symptoms? Note when the first complaint appears in the claim/medical records.

-  What medical treatment did the claimant seek and when?

-  Did the claimant’s GP suggest there was another possible cause?

-  Do GP notes include reference to head injury, impact, loud noise or tinnitus symptoms?

-  Is the tinnitus bilateral (both ears)? That may suggest noise or ageing as a likely cause rather than head trauma.

-  Has the claimant been tested for hearing loss? Is there any/significant hearing loss above that expected by the normal course of ageing?

Lines of investigation and other claim handling tips may include: 

-  Requiring sight of the claimant’s GP records, hospital records, tax records, C.V. and employment history.

-  Establishing if the claimant has an accident history and the injuries arising from those accidents.

-  Inviting the claimant to agree to (repeat) audiograms and arrange for an audiologist to perform tinnitus matching as part of the procedure.

-  Arranging for an ENT surgeon to examine the claimant.

-  Challenging a medico-legal expert’s diagnosis of tinnitus based on the claimant’s testimony alone. Is the expert properly qualified to comment? On what clinical grounds is the diagnosis based? Could the cause be something else? On what basis has the severity of the tinnitus been graded by the medico-legal expert? What treatments are available?

-  Surveillance depending on how incapacitated the claimant claims to be.

-  (Part 18) Questions to the claimant regarding accident, injuries, symptoms, etc.

-  Profiling and checking accident histories.

-  Remembering that the claimant is required to prove their claim.

Conclusion


Claims for tinnitus need to be closely monitored and assessed carefully. Fast tracking payment of these claims may further motivate those encouraging claims like this.  

Where claims are exaggerated, seeking findings that claimants are fundamentally dishonest will see the claim dismissed and likely an enforceable costs ordered.  Even if a false tinnitus forms part of an otherwise genuine claim, the entire claim will fail under section 57 of the Criminal Justice and Courts Act 2015.

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