Whiplash: It Is Only Funny Until It Happens To You©11/06/2020
Being a lawyer requires thick skin and the ability to smile and shrug off a barrage of lawyer jokes. The word “Whiplash”, along with images of ambulances and cervical collars, provides quipsters with plenty of material for their jokes. However, as an attorney who has dedicated his professional life to representing the victims of auto accidents and truck accidents, I can assure you, in all sincerity, that Whiplash injuries can trigger significant and disabling neck injuries as well as crippling post-traumatic headaches.
Some of the largest automobile insurers spend millions of dollars each year in an effort to convince the general public that the victims of low speed rear-end collisions with disabling injuries are fakers and frauds. However, a fair review of the medical literature provides fact based and medical based evidence that Whiplash injuries are complex injuries requiring specialized care and treatment.
The medical community recognizes Whiplash as a significant medical condition. Whiplash is actually the mechanism of injury. Better terms for Whiplash are Traumatic Cervical Syndrome and the Cervical Acceleration/Deceleration Syndrome. The National Institutes of Health (NIH) defines Whiplash as:
“Symptoms such as neck pain may be present directly after the injury or may be delayed for several days. In addition to neck pain, other symptoms may include neck stiffness, injuries to the muscles and ligaments (myofascial injuries), headache, dizziness, abnormal sensation such as burning or prickling (paresthesia) or shoulder or back pain. In addition, some patients experience cognitive, somatic or psychological conditions such as memory loss, concentration impairment, nervousness, irritability, sleep disturbances, fatigue or depression. In the upper cervical spine at the bases of the skull and the Atlanto-axial Joint, this acquired laxity or instability can cause a number of other symptoms including but not limited to nerve irritation and vertebrobasilar insufficiency with associated vertigo, tinnitus, dizziness, facial pain, arm pain and migraine headaches.”
Over the past thirty-five years I have represented hundreds of clients who suffered very painful and in some cases permanently disabling soft tissue injuries. Thanks to the lobbying efforts of the insurance industry, “soft tissue injuries” have also been described as imagined or “fake injuries.” However, in addition to muscles and ligaments, the brain, the lungs and the heart are also soft tissues. Certainly, just because muscles, ligaments, lungs, hearts and brains are soft tissues does not mean that injuries to the soft tissues cannot be serious and in some cases, permanently disabling.
A broken bone will heal in six to eight weeks. The healing process involves bony callus formation and bone remodeling. When the healing process is complete, the bone, at the site of the break, is actually stronger than the original bone. However, the healing process for a soft tissue injury involves the formation of scar tissue which is thick fibrous tissue that takes the place of the healthy tissue that has been damaged. Scar tissue can become very painful with nerve ending regeneration. A soft tissue injury and the inevitable formation of scar tissue can trigger a cycle of chronic pain.
To understand the complexities of Whiplash injuries, we need to rely on scientific and medical experts who are specially trained to diagnose and treat these injuries.
Low Speed Rear-end Crashes Can Cause Serious Injuries
A low speed rear-end motor vehicle crash can cause serious and disabling injuries. In many cases these injuries are characterized by chronic neck pain and chronic post-traumatic headaches. Clinical studies from emergency rooms across the country have found that rear impact crashes of less than 5 mph can cause “significant” symptoms and injuries. Morris, Neck and Whiplash Injuries, Archives of Emergency Medicine (1989).
Over the past fifteen years the number of deaths and serious injuries from motor vehicle crashes have decreased. However, the number of Whiplash injuries has increased significantly. The increase in Whiplash injuries can be attributed, in part, to the modern bumper system. The modern bumper is designed to withstand impacts of up to 10 to 12 mph without producing any “crush,” denting or deformation of the underlying metal bumper. If the occupant of a car is rear-ended at a speed of 10 to 15 mph then the force from the rear-end collision will be transmitted directly to the occupants neck. If that same operator is hit at a speed of more than 15 mph, then the bumper will crush or dent and the force from the crash will be dissipated, resulting in less force transmitted to the neck.
The National Highway Traffic Safety Administration advises that the modern bumper is not designed for the occupant’s safety. The bumper is designed to keep down the cost of auto repairs.
Passenger car bumpers are not a safety feature intended to prevent or mitigate injury severity to occupants in the car.
The insurance industry claims that if there is no significant damage to the bumper then common sense dictates that the occupant could not have sustained an injury. This appeal to “common sense” is without any factual, scientific or medical support. If you drop a carton of eggs on the floor at the grocery store, you do not evaluate the damage to the eggs by assessing the damage to the carton. In order to assess the damage to the eggs you need to look inside the carton at the eggs.
A high performance racing car does not use a rigid bumper like the bumpers on passenger cars. The race car driver is protected by a special driver’s compartment but the body of the race car does not include a rigid bumper. In the event of a crash the body is designed to crush so that the force of the crash will be dissipated and lessen the force to the driver. The body of the racing car is sacrificed to protect the driver from life threatening injuries.
The International Society of Automotive Engineers (SAE) has conducted hundreds of tests to study the effects of low speed rear-end crashes. In peer reviewed publications, the SAE has concluded:
“The crush damage to a vehicle does not relate to the expected occupant injury, i.e. the more vehicle damage, the more chance that the occupant is injured, is not a conclusion that can be made. In fact, it is more likely the reverse.”
At the 12th Annual International Convention on Vehicle Safety, engineers from SAE explained:
“As vehicles are made to have less damage at low speed collisions, the occupant will have more violent motion, which increases the potential for injury. Vehicles that do not sustain permanent damage in low velocity crashes produce higher dynamic loading on their occupants than those that crush plastically under the same or possibly more severe impact conditions.”
In a low speed rear-end crash the amount of damage to the bumper does not correlate to the damage to the occupant. In one study done by Volvo, the car manufacturer reviewed their claim files from a thirty year period. Volvo, a leader in car safety, concluded that:
“Impact speed is not a good indicator of neck injury risks; it is obvious that in rear impacts, people frequently sustain neck injuries even in crashes with very low impact severity.”
After examining the records of thousands of cases involving low speed rear-end collisions the Insurance Institute of Highway Safety (IIHS) concluded that forty-four percent of females and thirty-four percent of males who are injured in low speed rear-end collisions sustained Whiplash injuries.
Since the 1990’s a group of automobile insurers have argued that below ten mph an occupant cannot sustain an injury. Although this is a popular argument amongst insurers, claim representatives and defense lawyers, this notion is false. No such threshold has ever been scientifically demonstrated to exist. In fact, countless studies have shown that injuries can occur at any speed. Specifically, studies have shown that injuries can occur at five mph and even at two and a half mph. Brault, Rear End Automobile Collisions, Archives of Physical Medicine and Rehabilitation (1998). More importantly the medical community explains that each individual is unique, and injuries can occur at virtually any speed.
Despite the fact that the insurers are well aware of the medical and scientific literature, some insurers persist in a campaign to disparage victims of Whiplash injuries. It has been reported that some insurers will treat any personal injury claimant with property damage of less than a thousand dollars, as a suspected fraudulent claimant.
Neck Pain, Headaches And Concussions
The most prominent injury following a rear-end collision is neck pain. The insurance industry will argue that because the x-rays in the ER failed to show any fractures or any dislocations there is no objective evidence of neck pain. However, countless studies show that damage to the muscles, ligaments, facet joints and disks cannot be detected by standard x-rays. Negative x-rays and negative MRIs do not rule out significant soft tissue injuries.
In a recent Whiplash case my client was rear-ended at a speed of less than five mph. However, my client sustained serious Whiplash injuries. For four years she was treated by some of Boston’s finest physicians. After examinations and treatment from board certified orthopedic surgeons, physiatrists, neurologists, and headache specialists, her treating physicians concluded that the low speed rear-end crash did in fact cause Whiplash which resulted in chronic neck pain and daily headaches. My client followed the recommendations of her doctors and she had countless appointments for acupuncture, massage therapy, cranial sacral therapy, chiropractic therapy and physical therapy. Despite valiant efforts she continued to suffer daily neck pain and daily headaches. Various medications were prescribed without success and eventually she agreed to have injections into her neck in the hope that the injections could stop the horrific cycle of chronic pain. Unfortunately the injections provided minimal relief and she continues to live with daily headaches.
Common symptoms after a Whiplash injury are headache, dizziness, drowsiness, sleep disturbance, chronic fatigue, light sensitivity, tinnitus and double vision. While it is true that in many Whiplash cases the patient will recover after a few months, it is also true that almost all Whiplash patients who also sustain a concussion will continue to suffer from headaches for a year or more.
The insurance companies argue that Whiplash symptoms and headaches persist only because the occupant is involved in litigation. However, studies in peer reviewed journals have shown that patients involved in litigation do not have a longer recovery period than patients who are not involved in the legal system. Banister, Whiplash Injury, The Journal of Bone and Joint Surgery (2009).
Concussion Does Not Require Loss Of Consciousness
Even if a driver does not strike his head during a low speed rear end crash, the Whiplash action can cause the brain to crash against the skull and cause a concussion. It is universally accepted by the medical community that a concussion does not require any loss of consciousness. The American Congress of Rehabilitation Medicine has concluded that Whiplash can cause concussions without a blow to the head and without any loss of consciousness. Following a Whiplash injury the diagnosis of a concussion is appropriate if there is “any alteration in mental state at the time of the accident (e.g. feeling dazed disoriented or confused)”.
After an automobile accident the injured driver is typically taken by ambulance to the emergency room. In the ER the physicians are trained to treat acute and life threatening injuries. Most ER physicians have very little training involving Whiplash, musculoskeletal injuries or concussions. Often times the insurance company will argue that a claimant did not have a concussion because there is no mention in the ER record of any loss of consciousness. However, studies have shown that more than fifty percent of patients who are diagnosed with a concussion did not receive a concussion diagnosis when they first visited the ER. For the most part, since the ER physicians are there to treat life threatening injuries, the necessary patient history and exams used to diagnose a concussion are overlooked.
While it is true that an ER visit often involves neck x-rays and even an MRI of the brain, negative findings on these films does not in any way rule out the diagnosis of a concussion. In fact, a mild traumatic injury is defined as a brain injury without evidence on MRI of a brain bleed. What happens in a mild traumatic brain injury is known as diffuse axonal injury. These injuries to the brain are microscopic and cannot be seen on MRI.
Whiplash Can Cause Permanent And Disabling Injuries
After several months of treatment by a chiropractor or physical therapist many Whiplash patients will return to normal. However, based on hundreds of studies and clinical experience, the medical community has concluded that about fifty percent of those who sustain Whiplash will experience some degree of long term neck pain or long term headaches. Approximately ten percent will suffer chronic and severe symptoms of neck pain and headaches.
If you or a family member have been the victim of a Whiplash injury, make sure to follow up with your primary care physician if there are any signs of chronic neck pain, headaches, nausea, dizziness, light sensitivity, double vision, memory loss or difficulty with concentration. Whiplash and concussions (mild traumatic brain injuries) are referred to as the silent epidemic because many patients never receive the appropriate diagnosis or treatment. If you suffer a Whiplash injury, make sure you get the best medical care possible and also make sure to find a lawyer who can help you deal with the naysayers who consider Whiplash as mere fodder for lawyer jokes. For victims with Whiplash, these injuries are no joke.
 “Lawyers are like rhinoceroses, thick skinned, short sighted and always ready to charge.” David Mellor, British barrister.