Remember riding bumper cars when you were a kid? There was always someone who took it too far. You got out of the bumper car, rubbing your neck and swearing revenge.
Imagine getting hit from behind with a real car, traveling at a much higher speed. In addition to dealing with the damage to your car, you may end up with whiplash. One of the most common injuries resulting from car accidents, particularly when rear-ended, whiplash occurs when an occupant’s head is quickly jerked forward, known as hyperflexion, and then jerked sideways, known as hyperextension.
According to Mark Rogers, spokesperson for Whiplash-claims.com, it doesn’t take a car accident of Hollywood stuntmen proportions to cause whiplash either.
“The real danger with whiplash incidents is that even in the event of a minor road accident, a whiplash injury can be sustained.”
Like most injuries, there are varying degrees of intensity and pain but increasingly, drivers are filing claims for damages. According to the Spine Research Institute of San Diego, nearly 3 million new whiplash injuries occur each year — not a number insurance companies want to hear.
That’s not because it just pains them to hear that so many people are suffering from an injury that – although few realize it – can last for a lifetime and technically has no cure. Pain can only be alleviated in many cases, and for such a small body part, neck strain can be an expensive injury. Insurance companies typically spend $2.7 billion dollars each year on whiplash, and the average claim payout totals just over $9K. Because symptoms are easily faked, whiplash claims are a popular target for scammers all over the world, which has unfortunately resulted in higher premiums for everyone and inevitable suspicion anytime someone says “oh, my neck!” after a car accident.
Whiplash: A History Lesson
Although bogus whiplash claims are only recently being recognized and receiving the scrutiny that they probably should have years ago, the injury known as whiplash (which isn’t actually a medical term) has a history of controversy. The correct medical definition of these kinds of injuries is “soft tissue damage of the neck”, or “neck strain” or “sprain.” Whiplash was first coined in 1928 by Dr. Harold Crow due to his observation of the lash-like effects on the spine. Even before the days of cars and car accidents, whiplash was known as “railway spine” and people sought compensation for injuries.
This caused speculation throughout the medical community as to whether injuries had a real physical basis or if they were rooted in mental and emotional elements. Researchers questioned: If people are compensated for injuries, will certain parts of their neurosis manifest the injuries? With the publication of John Eric Erichsen’s On Concussion of the Spine: Nerve Shock and Other Obscure Injuries of the Nervous System though, it was proven that the human body couldn’t cope with high speed train accidents. It still took time to develop safety methods meant to protect the human body.
World War I pilots whose planes were catapulted from ships, experienced severe whiplash, even blacking out from the effects of the violent takeoff. Reports of whiplash injuries from car accidents began in the earliest days of the automobile revolution, but the auto industry avoided safety measures for a long time. Headrests weren’t even incorporated into cars until the 1960s.
Although building in the right measures was still a bit off in the future, it was during the 1950’s that the significance of a whiplash injury was recognized. Doctors James Gay and Kenneth Abbott conducted a study that set the tone for whiplash injuries, noting that, “Characteristically, these patients were more disabled and remained handicapped for longer periods than was anticipated, considering the mild character of the accident.”
Over time, whiplash knowledge has increased, legitimizing the injury and leading to safety inventions. Treatment has also improved, and almost 80% of people fully recover within one year. But as awareness has increased, so has the ability of individuals to scam their insurance companies, who now maintain entire teams of claims agents devoted to sifting through mountains of whiplash claims.
Like any other kind of fraud, it affects everyone when fraudulent whiplash claims are filed. It creates a stigma for real victims. Now, whenever someone files a whiplash injury claim, it’s often assumed that they must be doing so with a little ‘wink wink’ at their doctor. And now, policyholders sneer at whiplash claimants, whispering behind the injured party’s dog collar/neck brace, “that’s the reason insurance is so expensive.” Since it’s become an easy injury to claim after car accidents because, as soft tissue damage, it doesn’t leave scars and can’t really be seen, insurers, along with everyone else (less chiropractors), approach such claims with heavy scrutiny.
However, whiplash is an actual injury, and for those who suffer from it for years, or even a lifetime in the worst scenario, it can be as taxing as any other injury. So what happens if you’re truly suffering from whiplash and are met with a lot of weary believers? It’s true that insurance fraudsters have made the road towards adequate compensation for whiplash claims difficult, but those suddenly unrelenting feeling pain in their necks shouldn’t be hesitant to file a claim if they’re injured in a car accident.
It’s important to understand that although a whiplash claim may undergo more scrutiny than normal, you’ll likely be compensated if your injuries are real, and you’ll just have to ignore those who think you’re an insurance super-villain. You may have to fight a little harder, but knowing is always half the battle.
Villains in Neck Braces? Or Victims in Neck Braces?
In fact, according to Rogers, if you suffered a whiplash injury, hesitating to file a claim, seek medical attention, or both, can be more dangerous than basically volunteering to wear that ‘Scarlet W.’
“Left untreated, a whiplash injury can quickly develop from being a neck pain to being a debilitating condition,” says Rogers. “However, if diagnosed early enough, treatment can ensure that the injury does not develop.”
As to filing a claim? Simple — it’s everyone’s right to do so.
“In the event that any person suffers personal injury where liability rests with a third party, then that person is entirely entitled to make a claim for injury compensation,” says Rogers.
He emphasizes that whiplash injuries — which are suffered in approximately 20% of all car accidents –are no different.
“In the event of whiplash, the person is more than entitled to file a whiplash injury claims for compensation, and have the legal process properly take account of both the third-party liability and the extent of personal injury.”
You won’t be alone, that’s for sure. The number of whiplash claims in the US is astonishing and rising: In just one year’s time, there were approximately 554K whiplash claims filed, which accounted for 70% of all injury claims related to motor vehicle accidents. Although there’s a lack of significant evidence on exactly why whiplash claims are rising, the increase in damages could be explained by several things. The first and most logical deduction is that as the population increases, the number of drivers also increases. The risk of being in an accident is higher in more dense traffic situations. Or could it be that we’re just getting worse at driving?
Not necessarily, although inventions like smart phones continually take our eyes and minds off the road. When a problem like whiplash was so prevalent before, it’s certainly not going to help when so many drivers are now looking down to check their email, inadvertently leading a lot of drivers to playing bumper cars with the cars in front of them.
Whiplash Warning From Across the Pond?
Although the US, as of 2011, led the world in whiplash claims, the UK swooped in and grabbed up that spot, now dubbed the “whiplash capital of the world” with nearly 50% of their claims proving to be fraudulent. This even resulted in the UK now being the most litigitoeous country in the world, also a title the US used to hold.
It’s an issue that’s being looked at seriously by our friends across the pond. Do a quick Google search inventory after searching for “whiplash.” Whiplash has taken up long-term residence in the headlines of British newspapers, websites, insurers’ websites, government entities, and organizations trying to figure out to take on a “soft” issue that’s hard to fix. The Brits aren’t taking this laying down, and if whiplash claims continue rising in the states the way they have in the UK, the US may have the benefit of seeing what worked in the UK to battle increasing injuries, fraudulent claims, and subsequently, save all policyholders a few dollars by doing so.
So what does the UK have that the US doesn’t, and why? Turns out, not much. When it comes to the process of whiplash injuries, the legal system, possible issues, and insurance, the UK shares enough similarities with the US that if the UK finds solutions against fraudulent claims, the US may play copycat — or in the worst scenario, see what the future may be in the US if the problem worsens.- Of course, any good problem-solving starts with the beginning though, and that’s where British officials started.
Officials in Britain believe it’s become too easy to file a claim and that certain legal firms and lawyers have helped to create a “claims manufacturing industry.”
The ABI, or Association of British Insurers has said, “Aggressive marketing by claims management companies and referral fees paid by claimant solicitors (banned from April 1 this year), have led to an increasing number of personal injury claim in general, and whiplash claims specifically.”
It seems the main reason for the rise in British claims is because they’re just so darned profitable for everyone. The average fee for British lawyers is 1500 pounds, or around $2300. That’s right – ambulance chasers and vilified people suffering from whiplash are universal.
While whiplash fraud is an evident problem in Britain, it’s still present in American culture, and much of the finger-pointing is identical here. Fraudulent auto injury claims added approximately $4.8 billion to $6.8 billion in excess payments during 2007 and have remained steady, and those excess costs increase premiums for all drivers. Even with strict whiplash tests, scammers manage to sneak past insurance officials every year.
Efforts continue to grow in the fight against insurance fraud, and fortunately the majority of states have a bureau dedicated to combating insurance fraud and continue evolving as needed. New York state, for example, recently passed legislation targeting auto insurance fraud. All that sounds assuring – until you find yourself in one of those snazzy braces.
When It Happens To You
So what if you’ve been in an accident in the US? Guidelines and laws put into place help mediate the whiplash claim market. Certain no fault programs in states like Pennsylvania keep the legal system from getting clogged with lawsuits, but the first step is to deal with your insurance company. Following the proper procedure at the scene and after the accident will help you submit a substantiated claim.
Always file a police report, speak to any witnesses, and exchange insurance information with all necessary parties. Most importantly in personal injury cases, even if you feel okay, it’s generally good protocol to visit a doctor if you’ve been in a car accident. If you don’t do it that day, you should as soon as possible, and remember that whiplash, it’s possible that you may not feel any pain immediately after the accident. It can take a few days for the injury to manifest itself, so don’t rush to settle the car accident claim. Symptoms can include:
Neck pain
Upper back pain
Decreased range of motion
Numbness
Dizziness/headache
Ringing in ears
Whiplash is usually diagnosed after doctors perform a physical exam, X-ray, CT scan or MRI. Depending on your health insurance, this may or may not be covered though, particularly if it’s related to a car accident, regardless of who is at fault. Considering that the average price of a CT scan can run anywhere from hundreds to thousands of dollars, it’s worth a call to your health insurance company to check.
If you fail to seek any medical attention either immediately after an accident or within the few days following one, and begin experiencing pain but keep putting it off and putting it off, and months later are diagnosed with whiplash, your insurance options as far as coverage may be slim. This becomes an even bigger mistake if you were in a not at-fault accident and another party caused the accident that caused the injury. If you decided to file a lawsuit against that person (which would subsequently include their insurance company, unless uninsured, which would be an entirely different case due to uninsured and underinsured motorists insurance coverage) you’d find yourself under some extra scrutiny from the insurer, and depending on how much you’re looking for in compensation and how far the case gets in the judicial system, will find the scrutiny you’re under from the other insurance company’s medical experts especially unpleasant.
Make sure the doctor records all observations and keep all receipts. Always submit your insurance claim to the insurer in a timely manner, because if your insurance company sees that the accident occurred two months ago and you’ve been living with the pain, they may assume that the injury wasn’t that severe, that it must not be ‘that bad,’ and provide less compensation. The severity of the injury and the resulting pain is one of several main aspects considered in such claims, others include:
Legal liability: Insurance companies use crash diagrams and witness testimonies to figure out who was legally liable. Many times, in rear end accidents, the second driver is at fault but, sometimes the issue of fault can be cloudy.
Treatment: How soon you sought treatment and to what extent it was provided is important for insurance companies. One visit to the emergency room isn’t the same as multiple trips to physical therapy.
Injuries: The level of injury severity determines compensation. In addition to whiplash, document all additional injuries.
Recovery Time: Anywhere from 35-50% of whiplash victims suffer long term injuries and 14% become permanently disabled. While your insurance company can handle the initial claim, you may want to seek damages from the other party if injuries are decidedly severe, and may want to look into disability options.
Daily Life: Cases are examined on an individual basis. If you can go about normal day to day activities, you may not receive much compensation — but you have your health. There are plenty of whiplash sufferers who will tell you that whiplash is no walk in the park and is a very real injury.
But what recourse do you have if your claim is denied and you’re truly injured? Some insurance companies are now offering reduced settlements to avoid paying the entire claim amount, just one effort at hopefully turning off fraudulent whiplash fraudsters who are looking for an easy whiplash payday. Legitimately injured though, such settlements may not be enough, and at that point, your only option may be to put on your best suit and head to court.
Legal Whiplash: Fighting for Compensation in Court
Here’s where we stop using the term “ambulance chaser.” You have the right to obtain a lawyer immediately following the accident, and probably should do so when involved in a not at-fault accident. At that point, your lawyer is responsible for corresponding with the insurance company and seeking compensation. If at any point you plan on filing a personal injury lawsuit against the other driver, it’s highly recommended that you obtain a lawyer.
Be aware of your state laws though. Four states (Alabama, Virginia, North Carolina, and Maryland) and the District of Columbia have a contributory negligence rule. This states that even if you are 1% responsible for the accident, you can’t recover any damages from the other party. The majority of other states use a comparative negligence system, in which case partial responsibility for the accident results in a reduced settlement.
Most lawsuits take place between the injured party and the defendant, or the person who caused the accident. If the defendant doesn’t settle on a cost, the lawsuit can then be taken to court. A settlement will be determined by a judge based on the evidence unless a jury trial is requested. At that point, the jury decides how much damages are awarded — but the defendant has the right to appeal.
So how much should you expect?
“The amount of settlement in a personal injury claim depends upon the nature and extent of the injury sustained,” explains Rogers. “Obviously, the more serious the injury, the higher the settlement amount that can be claimed. However, even in the instance of minor whiplash injuries, a driver or passenger involved in any accident claims are perfectly entitled to a settlement.”
Lawsuits can drag on for years and simultaneously suing an individual as well as the insurance company will cost you. Legal fees will come out of your own pocket, so explore all avenues of compensation, and if a personal injury lawsuit is your only recourse of action, be prepared, and remember that at some point, you’ll likely need to re-assess your injury as it is now, how the entire injury has affected you since it first presented, what your losses monetarily and otherwise have been, any future considerations you need to include, and decide what you’re fighting for and ask yourself when and if you feel you’re able to receive satisfactory compensation. Only you can decide that.
Attorneys – no surprise – often try encouraging cases along, and remember – attorneys like to go to trial. That’s what they do. It doesn’t mean it’s the best option for your case though. Also, it’s important to remember that even attorneys who say there’s “no fee if no recovery” aren’t being exactly clear with that statement. There are a lot of fees even if no settlement is reached or if a case is lost. You may not have to pay an attorney fee, but there’s plenty else you’ll have to for: Filing fees, expert witness fees, and any other case-relevant incidental expenses are still your responsibility.
Protecting Your Neck
Catching those intentionally defrauding insurance agencies makes it easier to file a legitimate claim, but how do you prevent the injury in the first place?
Head restraints are a key factor in stabilizing your head during an accident. In 2005, federal regulations set minimum heights and allowable distances between a headrest and someone’s head. Today, all models constructed in 2009 and after are up to code. For ideal safety positioning, place your headrest nearly up to the tops of your ears and make sure that no more than 3 inches exists between your head and the headrest. Other recommendations for preventing whiplash include sitting upright and wearing your safety belt.
Always leave enough room between the car in front of you and your vehicle, and if an abrupt stop is needed, you won’t have to slam on brakes, which increases the likelihood of getting hit from behind. In the event you can actually see an accident coming, brace your head against the head rest and although difficult, do your best not to tense up too much as that can at times worsen injuries.
Unfortunately, avoiding whiplash is easier said than done. If you find yourself with a neck or back injury, don’t hesitate to seek treatment and damages if necessary. Severe whiplash can have long term consequences, and as long as you’re honest with your insurance company and provide complete information, there should be no reason why those childhood feelings of bumper car revenge should resurface.
Follow Desiree on Twitter @DesireeBaughman.