The Hard Issue of Soft Tissue

Whiplash associated disorder and other soft tissue injury claims are not simple. They are not basic. They are no less complex than some of the much more serious injuries labelled as such – they are more so in some respects. However, they are – taken individually – low value, which is precisely why they have always been wrongly categorised as rudimentary.

And that’s a problem. That has always been a problem.

Truly effective management of WAD and soft tissue claims is a technical specialism in which –?in the UK – very few are specialist. WAD is not the easy first step on a linear journey it has long been regarded simply because of value.

And that dogma has been a significant factor in the unfettered spread of the ‘whiplash problem’ since the 90s – a scourge, like so many others, partly of our own making.

Let me explain.

Awakenings

My early PI* career progression was typical: soft tissue to simple fractures to more complex to high value. But with my foray into catastrophic and large loss, came the sharp turn into counter fraud where I have remained since.

And so began my professional love affair with the WAD phenomenon and with the medicolegal enablers which nourish it. Call it a two-pronged vocation: counter-fraud as one tine and general WAD the other – a tuning fork, which is apt considering the retune my brain underwent.

Initially working with a renowned doctor in devising a range of innovative and effective strategies and tactics – firstly on fraud but quickly expanding to all cases – was paradigm-shifting. It had me questioning everything.

• Why was I now, almost a decade into my career, learning about the elaborate mechanics (or is it machinations?) of the medicolegal infrastructure?
• Why had I been taught anatomy and how to calculate PSLA but was told little of the cultural, political and economic factors influencing reporting?
• Why was I only now learning about serial ignorance of doubt and its drivers, and of the intricacies of biased and vested interests weaving their complex webs of sinewy industrialisation?
• Why were staggering levels of medicolegal contamination not causing outrage?
• And why did everyone adopt a defeatist attitude towards WAD when it accounted for 80% of PI spend?

Simple? Bah!

Although I was an excellent PI negotiator by usual standards, I realised I didn’t really know how to optimally analyse a WAD report and leverage the findings for better outcomes. And it wasn’t some gnostic tradition concealed from the unworthy – vital context aside, I had been blind to what was there all along.

But now the light was on, and it grew brighter as medicolegal reports piled high and the years rolled by. With a little context and a focal nudge, the medicolegal autostereogram revealed its hidden picture. Seven RTA’s and accompanying WAD injuries of my own aided comprehension, naturally.

Perspectives

Enlightenment engendered effectiveness. Repudiation rates increased and average settlements and net spend reduced. Moreover, it was a keystone from which a range of effective strategies were built, some of them quite revolutionary even for today.

And I’ve since spent my career training—or retraining—others to enhance their understanding for better results. But decision makers have rarely been interested in exploring those proven techniques for tackling the broader WAD epidemic.?They’re just low value. Settle quickly within range. Blah, blah. Cliché, cliché.?

For example, one large loss manager – whose expertise in serious injury claims far exceeded my own – strongly cautioned against Part 35 questions in an escalating WAD case where the evidence screamed of extensive overplaying if not outright malingering.

The attitude was troubling.?Don’t question in a whiplash claim. Don’t ask what you don’t already know. Experts never change opinions.?Hold your nose and settle.?Blah, blah. Cliché, cliché.

Needless to say – having successfully** questioned experts in over 1,000 WAD claims by then – I pulled apart the evidence and questioned regardless. Because I knew better than most what to ask, how to ask it and what the ultimate aim of questioning in such cases?really?was.

And guess what? The doctor begrudgingly accepted the overwhelming doubt and, yes, fully reversed their opinion, as have many others both before and since. A potential ￡50,000 claim settled at zero.

One extreme example from many, and similar attitudes have presented time and time again. Seasoned PI negotiators, managers, large loss handlers, trainers, lawyers – you name it. Even one trailblazing counter-fraud leader was utterly disinterested in exploring what would now be regarded a sizeable layering op despite having been presented with masses of evidence and details of considerable prior successes.

Because, I reasoned, the blinkering I experienced – and recognised in others around me – had been occurring at industry level for many years.

Myopia of the collective eye.?

Cause and Effect

Even now after numerous – in my view, misfocused and poorly implemented – reforms and their unintended-but-inevitable consequences, there appears scant recognition of the problem’s prime source and little desire to tackle it. Instead, focus remains on effect (frequency) rather than cause (severity). An indelible blind spot, it seems.

And I can only conclude the traditional career pathway is just not conducive to fully comprehending and effectively combatting soft tissue injury claims. Indeed, I believe it’s a barrier. And barriers beget barriers.

Trainees start on soft tissue because it’s low value and considered simple, even more so now in this portal age. In the early 90s, WAD wasn’t as prevalent so was paid little attention. It was a stepping stone towards ‘real’ injuries and handlers aimed to get to those as quickly as possible. To the meaty cases and the higher salaries they command. And climbing into manager roles from where they could shape future process and strategy.

So, the medium for growing true expertise in the management of soft tissue claims was, in retrospect, conspicuous by its absence.

Conversely, that status quo did culture cells in the Petri dish of viral WAD.?

Lifting Barriers

Post reform, the tariff may have rendered a tiny part of this moot – but that’s a whole different subject. At least strategies for farmed claims and layering are now commonplace. Suppliers, too, sell a range of products to help insurers manage the threat of so-called mixed injuries.

And soon appeals will be heard, reformation will continue and the law will further evolve.

But in the absence of a truly revolutionary act, so too will our virus: strain after strain ever mutating to survive inside the cells of an accommodating medicolegal host. Because compensators are yet to properly address root cause, instead focusing only on the most obvious and egregious signs. That standard career trajectory remains a persistent obstacle to doing otherwise.

The rules of engagement for soft tissue claims need to be vastly different, both to what went before and to those employed with other injury types. Medicolegal evidence in WAD has to be viewed through a specific lens, not examined with the multitrack and serious injury logic so often applied.

The idea of soft tissue claims as elementary must be consigned to the annals of history where it belongs – although somewhat paradoxically, they can be made simple by dissecting, teaching and exploiting their complexities.

Moreover, to effectively tackle soft tissue – including mixed claims and the rising tinnitus and psychological substitutes – defendants must understand it is not, and has never been, a fraud issue. Fraud and conventional causation strategies have their place, sure, but they will never solve the broader problem, which will persist across?all?claims including tariff only.

To finally address cause, specialists are required to drive strategy. MoJ handlers must be taught to be those specialists (entirely possible without negatively impacting spend, lifecycle and TOM). In turn, they must breed and nurture the next generation. And ultimately, this army of specialists must be the driving force for cultural change.?

But the trouble is, insurers don't create them. And so the WAD merry-go-round perpetually revolves, everybody apparently content with the calliope occasionally varying its melody.?

This was Episode I of Medicolegal Magic Eye, a series of articles on UK soft tissue claims. Feedback is welcome in the comments.

Stay tuned for Episode II: We Need to Talk About MedCo.

*I’ll be deep in the cold, cold ground before I recognise 'bodily injury'.

**Reduced net spend or repudiated.

N.B.: WAD and soft tissue are used interchangeably purely for ease. It is appreciated that WAD includes an array of symptoms.

Allan Peak is a motor claims and counter fraud professional with over 30 years' experience. He sat on the IFB Technical Board and the General Insurance Fraud Committee, helping to shape the UK insurance industry's counter fraud strategy.

An early adopter of LVI and a pioneer in claims farming and layering strategies, Allan has drafted and served Part 35 questions to medicolegal experts in over 2,000 soft tissue claims. He has also been involved in seven road traffic collisions in which he suffered muscular injuries to the neck and lower back.