Whiplash: Medical and Legal Considerations

Whiplash Associated Disorder (WAD) is the full medical name for Whiplash – neck injuries from (even low-speed) car accidents. Usually, whiplash happens when another driver rear-ends the accident victim, although it can be caused by any impact, or even from sudden braking to avoid an accident. The victim’s head snaps violently back and forward, damaging their neck. Whiplash is classified as a soft-tissue injury (STI) to the muscles, ligaments, and tendons. Because there are no broken bones, whiplash injuries can be challenging to identify. This makes them harder to prove in a lawsuit or when the victim needs no-fault accident benefits from their own auto insurance company.

If you have been in a car accident and have signs and symptoms of whiplash (including neck and shoulder pain, stiffness and restricted movement, headaches, dizziness, tinnitus or ringing in the ears) it is crucial for your recovery and long-term health that you know how to treat whiplash – see a doctor and start rehab as soon as you can. Ignoring whiplash can cause longer and increasing symptoms that can lead to chronic pain syndrome, chronic post-traumatic headaches, and other long-term complications. 

If an ambulance comes to the scene of the car accident, paramedics will assess the drivers and any passengers. When a victim reports neck pain and other whiplash symptoms, standard practice is to give them a cervical or C-collar to immobilize their neck as a precaution. They will go to the hospital for x-rays to rule out fractures (to the vertebrae, ribs, shoulder blades). If there are no broken bones, the doctor will assess the severity of the victim’s whiplash. 

There are four whiplash grades (WAD 1, 2, 3, and 4); WAD 4 is the most severe and includes fracture/s or dislocated neck joints as well as soft-tissue injuries (potentially including torn ligaments in the neck). WAD 1-3 are STIs only.

WAD 1 is the mildest injury, described as complaints of neck pain, stiffness, or tenderness without physical signs. 

WAD 2 is more serious, including the WAD 1 complaints with musculoskeletal signs (signs like limited range of motion and pain from pressure or on movement). WAD 2 can be accompanied by headaches, dizziness, fatigue and/or nausea. 

WAD 3 incudes WAD 2 complaints and symptoms and shows signs of neurological impairment like reduced or absent reflex responses, weakness, blurred or double vision, and tinnitus. It also includes numbness and tingling, which can stop at the neck and shoulders, or extend all the way to the hands and feet. Since numbness and tingling will not show up when you are examined, it is especially important that you report it to the doctor.

Traumatic Brain Injury And Whiplash

It is not commonly known that whiplash can cause a brain injury, even when victim does not suffer a direct blow to their head. Our brains “float” inside our skulls. The whiplash motion can make the brain strike the inside of the skull hard enough to damage the tissue. The resulting injury, if detected, will be diagnosed as a mild traumatic brain injury (mTBI). Mild only refers to the severity of the physical injury, not to its functional impact on the victim. It can be challenging to diagnose the brain injury in a whiplash accident, because the symptoms can overlap (like fatigue, memory and concentration issues, dizziness, or loss of balance). If you have whiplash and think you might also be experiencing symptoms of a mTBI, make sure to explain these symptoms in detail to your doctor. Need more information on Brain Injuries, see Campisi’s Guide.

If no ambulance attends, and you have any of these signs or symptoms (even if you feel like you would only have a “WAD 1” injury) DO NOT IGNORE them. Arrange an emergency visit with your family doctor, or go to a walk-in clinic or the ER as soon as you can. Early diagnosis and treatment are the key to recovery. Make sure to keep as active as you can. Avoid the urge to stay in bed and “hope it goes away” – this can actually make it worse, and more likely to become chronic.   

Part of the problem with whiplash injuries, and one of the reasons victims often must fight for no-fault benefits or fair legal compensation, is that the symptoms might not start immediately, or might gradually get worse over several days post-accident. Make sure to update your doctor and rehab team about any changes in your condition, especially if more severe symptoms emerge over time, including WAD 3 neurological signs, memory and concentration issues, anxiety, depression, and chronic fatigue. Your accident benefits adjuster will try to minimize the impact of your whiplash on your daily life and ability to work. If you do not continue to document your impairments with your healthcare providers, the adjuster will assume you have recovered from your injuries within 3 months at most. 

Most whiplash victims are treated dismissively by their no-fault adjuster. WAD 1 and 2 are classified as “Minor” injuries under the regulations. This means that treatment is limited to $3,500, which only covers 1 or 2 treatment plans for physiotherapy, massage, chiropractic, or other rehabilitation. Unfortunately, the Minor Injury Guideline (MIG) only refers to the seriousness of the initial physical injury. It does not consider the injury’s impact on function (which can vary greatly). Although whiplash injuries can lead to chronic conditions that drastically impact a victim’s quality of life and income potential, it is an uphill battle to get funding once the MIG coverage is exhausted. Without funding, many whiplash victims cannot continue needed treatment, causing ongoing or worsening symptoms that might have healed. Equally frustrating, adjusters often pre-judge a MIG claimant, assuming that they should be able to work or look after their home and family despite their injuries. 

How long does whiplash last?

Thankfully, most whiplash injuries do heal without serious ongoing consequences. Uncomplicated whiplash recovery usually happens within 8-12 weeks (this is the reason WAD 1 and 2 are part of the MIG framework). However, up to 25% of whiplash cases (including the so-called minor ones) can turn into chronic pain conditions requiring years of continuing treatment and support. If you have not already hired a reputable personal injury lawyer, and you still suffer from whiplash three months after the accident, you should seek legal advice immediately. At Campisi LLP, we are pleased to offer a free, no-obligation consultation to help you understand your options going forward, including how to manage your Accident Benefits claim, and the merits of your potential lawsuit. 

Legal and Insurance Considerations

When you have been seriously injured in a car accident, your focus understandably will be on your immediate needs – treating acute injuries, taking steps to care for your family emotionally and financially, and starting your rehabilitation. If possible, you should also try to gather as much evidence about the accident as you can. Otherwise, get a family member or friend to help. This evidence will include photos or video taken at the scene by you or bystanders, names and contact information of any witnesses (and, ideally, a summary of their evidence), the accident report, or at least the name and contact information of the other driver. 

Proving fault (or liability) in car accident lawsuits depends on the available evidence. Sometimes, it is obvious who was at fault. Often, though, liability will be unclear or disputed. By the time the case gets to trial, several years will have passed since the accident. By that point, witnesses might not be able to recall the events clearly, or you might not be able to locate them. If you proactively collect the best available evidence in support of your claims, your liability case stands a much better chance of succeeding. 

The same logic applies to your medical records. There is a saying, “if it isn’t written down, it didn’t happen.” The defendant will only compensate you for the losses you can prove, whether during settlement talks or at trial. These losses are called damages. They can include amounts for future medical expenses and personal care, lost wages and income potential, loss of housekeeping and home maintenance capacity, and general (or “non-pecuniary”) damages for your pain and suffering. 

If you are struggling with chronic pain and depression after a whiplash accident, you must regularly report your ongoing impairments to your family doctor and other healthcare providers. Suffering in silence might seem noble, but without documented evidence of your ongoing impairments and their impact on your life, you are not going to convince the defendant’s lawyer or a jury that you have suffered a permanent, serious injury. As a result, it is important: first, that you report all your ongoing impairments clearly and accurately; and second, that you attend and provide consistent effort in both your rehabilitation and any medical examinations required over the course of the lawsuit. The more thorough and consistent your medical records, the stronger your case, and the better your chances to achieve a fair result. 

Minor Injury Guideline (MIG)

You (or a family member, if you are not able) also must notify your own insurance company about the accident, so that you can start your no-fault accident benefits claim. There is a lot of paperwork to complete, including forms that must be forwarded to your doctor. These forms will describe the accident and your injuries and impairments. They are the basis for: whether you will have access to $65,000 in med/rehab benefits or are treated under the MIG; what types of rehabilitation the adjuster will approve and for how long; if you qualify for Income Replacement, Caregiver or Non-Earner Benefits (and how much you can receive); and other important determinations. They also will form part of the story in your lawsuit eventually because the defendant will demand a copy of your Accident Benefits file. Therefore, it is crucial that these insurance forms are completely fully and accurately.

Seeking Legal Assistance

Because you and your family will have your hands full coping with the immediate impact of the accident on your lives and health, these legal, medical, and insurance obligations can seem overwhelming. When you or a loved one is in a serious car accident, you have two years to start a lawsuit. Despite this two-year time limit, we strongly encourage you to meet with an experienced, reputable personal injury lawyer at your earliest opportunity. 

At Campisi LLP, we can alleviate your stress, providing compassionate guidance and hands-on assistance. Our exceptional Accident Benefits team will organize and manage your no-fault claim, fighting for your treatment and other necessary benefits to optimize your recovery. At the same time, our trial lawyers will gather your medical and liability evidence, assessing your potential legal claim and developing a winning strategy for your lawsuit. As the matter proceeds, we will arrange for medical assessments by leading experts to support your claims. A compelling expert opinion can turn the tide in your favour, especially in a whiplash/chronic pain lawsuit, where your ongoing injuries and impairments cannot simply be shown on an x-ray or CT scan. At Campisi, you are in charge of your lawsuit. We will work tirelessly on your behalf and offer our expertise so that you can make the best decisions for your future. Whether that future includes a negotiated settlement, or we proceed to trial, you can count on our experience, skill, and integrity. Please reach out; let’s get your started.