COMITÉ EUROPÉEN DES ASSURANCES SECRETARIAT GENERAL 3bis, rue de la Chaussée d'antin F Paris Tél. : Fax : Web : DELEGATION A BRUXELLES Square de Meeûs,

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COMITÉ EUROPÉEN DES ASSURANCES SECRETARIAT GENERAL 3bis, rue de la Chaussée d'antin F Paris Tél. : Fax : Web : DELEGATION A BRUXELLES Square de Meeûs, 29 B 1000 Bruxelles Tél. : Fax : Web : Minor Cervical Trauma Claims COMPARATIVE STUDY CEA/AREDOC - CEREDOC 2004 Foreword A rise in cervical injury claims was first noted in Some countries reported many problems whereas others had no difficulties. Faced with this imbalance and in the absence of objective conclusions in this field, the Comité Européen des Assurances (CEA) and the Association for the Study and Compensation of Bodily Injury (AREDOC, FR) jointly began a comparative study on claims involving cervical spinal injuries. The aim was, inter alia, to estimate claims trends in different countries, their causes and possible means of intervention open to insurers to try to influence them. The first summary of replies received, in 2000, showed major disparities in data. The study was therefore redefined and focused on the impact of minor cervical trauma. A common definition of such trauma was drafted thanks to AREDOC and CEREDOC (European Confederation of Experts in Assessing and Compensating Bodily Injury) so that all countries could use a similar approach when dealing with this concept. A new questionnaire, taking this definition into account, was circulated to the various countries in It was also felt preferable to update the figures, previous data referring to 1998 claims. This update is presented here. The study raises several points: statistical but also medical (specific training of doctors, medical investigations undertaken), or legal (concept of causality, indemnifiable damage) aspects, not forgetting measures taken by insurers and discussions which may be undertaken in this field. Concerning the medical aspects, only single injuries requiring treatment are taken into consideration regardless of whether there are after-effects. Furthermore, the study does not deal with the technical aspects of vehicle design such as headrests, seats... Special thanks go to the AREDOC and CEREDOC teams who contributed actively to this exercise. But this study would not have seen the light of the day without the essential contribution of the participating national insurance associations in numerous European countries or without the competence of members of CEA's Motor Committee Services and Claims Subcommittee and its Bodily Injury Working Group, under the active chairmanship of Mr Guy Chappuis. 2 INTRODUCTION COMMON DEFINITION OF MINOR CERVICAL TRAUMA... 4 I. STATISTICAL ELEMENTS NUMBER OF INHABITANTS AND VEHICLES ON THE ROAD TOTAL NUMBER OF MOTOR LIABILITY CLAIMS NUMBER OF BODILY INJURIES NUMBER OF CLAIMS LINKED TO MINOR CERVICAL TRAUMA COST OF BODILY INJURIES COST OF CLAIMS LINKED TO CERVICAL TRAUMA AVERAGE COST PER CLAIM LINKED TO CERVICAL TRAUMA... 7 II. MEDICAL ASPECTS EVALUATION OF BODILY INJURY : SPECIALISTS/SPECIFIC TRAINING INVESTIGATIONS UNDERTAKEN BY DOCTORS TO DIAGNOSE AN MCT... 9 III. LEGAL ASPECTS: CAUSALITY A. CONCEPT OF CAUSALITY De jure or de facto causality Onus of proof Causality established by the courts or the doctor Impact of dynamic and bio-dynamic experiments B. IMDEMNIFIABLE DAMAGE (QUANTIFIABLE/NON-QUANTIFIABLE INJURIES) C. DIFFERENT LIABILITY/SOCIAL SECURITY APPROACH IV. NATIONAL SURVEYS AND STUDIES ON MCT V. EXISTENCE OF LOBBYING GROUPS ASSOCIATIONS OF MCT INJURY VICTIMS ASSISTANCE FROM DOCTORS/LAWYERS VI. MEASURES TAKEN BY INSURERS VII. CONCLUSION : AVENUES OF REFLECTION FOR RECOMMENDATIONS TO NATIONAL ASSOCIATIONS INTRODUCTION 10 countries replied to the questionnaire circulated in July 2002 (AU 2122 [07/02]): Belgium Switzerland Germany Spain Finland France Italy Netherlands Norway United Kingdom 0. COMMON DEFINITION OF MINOR CERVICAL TRAUMA In order to analyse the possible after-effects of phenomena with no initial detectable injury, a minor or benign cervical trauma may be defined as a lesion of the cervical spine, caused by acceleration-deceleration mechanisms (due for example to pronounced extension and/or flexion more or less accompanied by torsion), without neurological complications and without affecting the osseous, nervous or ligamentary-disc structures, which may lead to painful symptoms when at rest or during movement and be accompanied by reduced mobility of the cervical spine. 4 I. STATISTICAL ELEMENTS 1. Number of inhabitants and vehicles on the road Country Number of inhabitants Number of vehicles (2003, in thousands) (2002, in thousands) Belgium Switzerland Germany Spain Finland France Italy Netherlands Norway United Kingdom Total number of motor liability claims Statistics show that Italy had the highest number of claims (4.7 million); then Germany ( million), the United Kingdom (2.9 million), France (2.5 million) and Spain (2.320 million) the number of claims diminishing by more than half between 1998 and The number of claims also dropped in Germany but less spectacularly. Belgium, Switzerland, Italy and Norway recorded a slight rise in the number of claims since 1998 whilst France, the United Kingdom and The Netherlands have seen no rise in numbers between 1998 and Countries recording the lowest number of claims are: Finland (88 839), Norway ( ), Switzerland ( ). 3. Number of bodily injuries In the majority of countries, the percentage of bodily injuries has scarcely risen since Bodily injuries represent between 8% and 18% of all claims. It should however be underlined that although Spain saw a spectacular drop in the number of claims between 1998 and 2000, it had a significant rise in the number of bodily injury cases, which doubled in two years. The countries recording the highest percentage of bodily injury claims are Italy (18% of all claims), the United Kingdom (17%) and finally Finland (13%). Countries recording the lowest percentage of bodily injury claims are The Netherlands (8% of all claims), France (9%), Norway (9.1%). The Netherlands however, for the last five years, has seen a 25% rise in the number of bodily injury claims although they note no significant rise in the number of liability claims. 5 4. Number of claims linked to minor cervical trauma Statistics show that four countries recorded a very high rate of claims linked to cervical trauma: the United Kingdom (76% of bodily injuries), Italy (66%), Norway (53%) and Germany (47%). Then come The Netherlands with a 40% rate. Spain and Switzerland have comparable rates of approximately 30%. Only France and Finland record a low claims rate for cervical trauma (respectively 3% for France and 8.5% for Finland). The statistics concerning the various points referred to above follow: Country Number of claims Bodily injury Cervical trauma compared with the (bodily + material) number of bodily injuries Belgium % or No data available Switzerland % or approx. 33% or Germany % or approx. 47% or Spain % or approx. 32% or Finland % or approx. 8.5% or 1000 France % or approx. 3% or Italy % or approx. 66% or Netherlands % or approx. 40% or Norway % or approx. 53% or United Kingdom % or approx. 76% or Cost of bodily injuries The highest costs in overall value are recorded by Italy (7.48 billion euros), Germany (5,346 billion), France (3,950 billion) and Spain (2,199 billion). With the exception of Germany, three other countries saw the cost of claims rise significantly between 1998 and The same applies to Belgium, Switzerland and Norway. Like Germany, there has been no rise in claims costs in The Netherlands. Countries recording the lowest costs are Norway (121 million euros), Finland (190 million euros) and The Netherlands (800 million euros). 6 6. Cost of claims linked to cervical trauma The cost of claims is particularly high in the United Kingdom (50% of bodily injury costs). Then come Switzerland, The Netherlands and Norway (40%) as well as in Italy (32.6%). Countries with the lowest costs are France (0.5%), Finland (0.78%) and Germany (9% of bodily injury costs). 7. Average cost per claim linked to cervical trauma Switzerland had the highest average cost in this area with approximately euros per claim; then come The Netherlands ( euros) and Norway (6 050 euros). The countries with the lowest average cost are Finland (1 500 euros), Germany (2 500 euros), France (approximately euros per claim) and the United Kingdom (2 878 euros). The United Kingdom indicates however that a similar amount must be added to this sum to cover legal costs and costs related to the accident. The statistics concerning the various points referred to above follow: Country Cost of bodily injuries Cervical trauma (compared Average cost per claim (in euros) with bodily injury) linked to cervical trauma Belgium +/- 1.4 billion euros no data available no data Switzerland 860 million euros 40% or 350 million euros Germany billion euros 9% or 500 million euros Spain billion euros no data available no data Finland 190 million euros 0.78% or 1.5 million euros 1500 euros France billion euros 0.5% or million euros Italy 7.48 billion euros 32.6% or billion euros Netherlands 800 million euros 40% or 320 million euros Norway 121 million euros 40% or 48 million euros United Kingdom billion euros 50% or 1.08 billion euros 7 II. MEDICAL ASPECTS 1. Evaluation of bodily injury: specialists/ specific training Belgium, Spain and France envisage in their regulation specialised training to assess bodily injury sanctioned by the issue of a university diploma. In other countries participating in the survey (Switzerland, Germany, Finland, United Kingdom, Italy, Norway), insurers use specialists or experts (forensic medicine, orthopaedics, neurology) to assess bodily injury who have not had any specific insurance training. In Finland, GPs may however specialise in insurance medicine although there is no specialisation in bodily injury assessment. Furthermore, Switzerland indicates the existence, since 1998, of postgraduate training in accident insurance which does not however lead to a medical assessment certificate. A recently created association (Swiss Insurance Medicine), in which ASA participates, is proposing to establish a certificate in medical assessment. It indicates in addition that experts designated by insurers are often challenged by the opposing party, causing unjustified slowness in handling compensation claims. COUNTRY BODILY INJURY ASSESSMENT: SPECIALIST/SPECIFIC TRAINING BE Specialists with post-university diplomas in the assessment of bodily injury acquired after basic training and/or initial specialisation Use of specialists without specific insurance training (neurology, orthopaedics, surgery, psychiatry ) CH Since 1998, postgraduate training in accident insurance but no medical assessment certificate Pb: no contradictory assessment and insurance experts are often challenged by the other side (slowness in managing claims) DE ES Specialists from the medical corps (specialisation in insurance and medical research) But no specific training in this area There are special university courses: Masters in the evaluation of bodily injury, Masters in insurance medicine or specialist in bodily injury assessment. Forensic medical specialists have reinforced their training in the field of bodily injury assessment. Specialisation depends on the type of injury, generally recourse to orthopediatricians and neurologists. FI Diagnosis done on the basis of documents provided by the patient, no auscultation. No specialisation in the assessment of bodily injury for insurance purposes. However, GPs may specialise in insurance medicine Recourse to bodily injury assessment specialists FR Specific training sanctioned by a diploma on legal compensation of bodily injury or the CAPEDOC: (capacity to exercise expertise). There are two nationally recognised university diplomas 8 COUNTRY BODILY INJURY ASSESSMENT: SPECIALIST/SPECIFIC TRAINING IT NL NO UK Recourse to forensic specialists No specific training No specific training Recourse to other similar medical disciplines (neurology, psychiatry ) No specialities: forensic experts with various qualifications diagnose MCTs Specialists examine the worst cases of bodily injury 2. Investigations undertaken by doctors to diagnose an MCT Belgium, Switzerland and Spain indicate that the patient s medical history 1 is the first stage in diagnosis. In Spain, medical history is generally followed by a clinical examination, study to attribute the injuries to the accident and an analysis of the patient's previous state. Sometimes other examinations are necessary (RX, EMG, ACT ) Belgium refers to an informative checkup and a radiological scan (simple if possible because in practice there is often costly and systematic recourse to a scanner or to an MRI), also practiced in Switzerland. Switzerland mentions the existence of a documentary file for the first consultation after a cranio-cervical acceleration trauma introduced in March This questionnaire aims at establishing as soon as possible a safe diagnosis and at guaranteeing adequate therapy in order to avoid later changes in medical history and diagnoses. Finland, France and The Netherlands said that an informative checkup is made, followed, in France and Finland, by a clinical examination. France indicates that this examination is completed by a neurological examination as well as a study of the victim s previous state of health. Finally, there is a discussion between experts involving the doctor and the patient on imputing after-effects to the injuries, without which their assessment is impossible. This discussion covers the probable criteria for the complaint, the circumstances of the accident, its development but also the general and previous state of the patient. In the United Kingdom, Italy and Norway, a clinical or radiological examination is undertaken. Germany says that an initial standardised diagnosis has been developed by insurers. 1 All information collected by the doctor from a patient or his/her relatives on the patient's prior medical background and the background to the illness for which he/she is consulting the doctor (Office de la langue française, 2000). 9 COUNTRY MCT DIAGNOSIS: WHAT INVESTIGATIONS BE Previous medical history Informative checkup (co-operation of the injured party) Radiological examination (simple if possible with dynamic proof). Unfortunately often systematic recourse to scanners and MRI Previous medical history CH Clinical examination and imaging examination (standard X-rays, MRI, CT). Documentary file for the 1 st consultation after a cranio-cervical acceleration trauma in order to avoid changes in medical history DE ES FI Different studies show that numbers of diagnosis depend on the medical specialities. DE insurers have developed a standardised initial diagnosis including objective and subjective criteria as well as a standardised scale of gravity similar to the WAD scale (Quebec Task Force, Spitzer, Walter, SPINE Journal 5/95) Previous medical history Clinical examination Study of previous history and attribution Additional examinations (X-rays, NMR, EMG, ACT ) Informative checkup Clinical examination (CT, MRI) Radiography no value in the majority of cases Assessment includes three major steps: FR Establishing the circumstances of the occurrence of the traumatism Passive and active clinical examination completed by a neurological examination and study of the previous state Discussion on imputing after-effects to the injuries (criterion of probability of the complaint, medical and medico-legal aspect) IT NL NO UK Radiographical examination and visit to a specialist Information on the circumstances of the accident, clinical and/or radiological examination Clinical/radiological examination Clinical examination Description of the symptoms by the patient Examination of the medical notes 10 III. LEGAL ASPECTS: CAUSALITY A. Concept of causality 1. De jure or de facto causality In Germany, causality is a fact of law. The onus of proof with regard to injuries caused by an accident devolves on the victim. In accordance with 286 of the ZPO (German Code of Civil Procedure), the victim must provide to the court practical and convincing proof of the existence of the injury. In accordance with 287 of the ZPO, there is a presumption of proof concerning the consequences linked to the injury: hence, it is sufficient for the victim to say that all the consequences of the injury are probably due to the accident. In Belgium, Spain and the United Kingdom, causality is de facto. In France, it is de jure as in The Netherlands where the conditions of application are very favourable for victims. In Swiss law, injury may only be attributed to an event if there is a natural and adequate causal link with this event (cumulative condition). The natural causality devolves from fact. It falls within the competence of the doctor and must be compared with a preponderant level of probability. It must be accepted even if the event in question only partially caused the impairment. Once the natural causality has been accepted, its adequacy must be determined. A cause is adequate when, depending on the course of events and general experience of life, it is likely to encourage the result which occurred. It is a way of legally attributing consequences to an indemnifiable event. Adequate causality is a question of law. It falls strictly under the competence of the courts. The question of whether causality is de facto or de jure is unknown in Finnish law. However, the Supreme Court underlined the fact that causality should be understood in different ways depending on whether it is considered by doctors or by courts. In Italy, the rules of liability and the onus of proof are established by law. Material causality is established on the basis of an assessment of the facts by the forensic scientist. COUNTRY DE JURE OR DE FACTO CAUSALITY BE CH DE ES FI Causality is de facto The causal link must be natural (de facto established by the doctor) and adequate (de jure) Causality is de jure ( full proof + rules of proof facilitated by admission of probable facts) Causality is de facto Notion of causality being de facto or de jure is unknown in Finnish law. The Supreme Court recognises that medical causality differs from causality as understood in case-law 11 COUNTRY FR DE JURE OR DE FACTO CAUSALITY Causality is de jure determined by the courts on the indications of the doctor IT Rules of liability and onus of proof determined by law but material causality is established depending on the opinion of the forensic scientist NL Causality is de jure. Conditions of application are however very much in the victim's favour NO UK Causality is de facto - 2. Onus of proof In Germany, the onus of proof devolves on the victim. He must prove the existence of his prejudice as well as the causal link between the injury and the accident. If the victim showed symptoms which he claims to have suffered before the accident and if the proof of the causal link is missing, the insurer need only pay compensation arising out of proof of the causal link for injuries after the accident. If the victim is not able to provide this proof, his claim will be rejected. In Belgium, France, the United Kingdom, Norway and Italy, the onus of proof devolves on the victim. The same applies in Spain where this is a iuris tantum presumption. Italy adds that it is not necessary to prove the existence of a causal link since proof of the damage is sufficient. In Switzerland, the onus of proof of injury and the causal link devolve on the person claiming the insurance benefit, i.e. the victim. The proof may only concern natural causality and not adequate causality, which is a value judgement. In Finland, the onus of proof reverts in principle to the victim. The courts however have discretionary powers. The Supreme Court based itself on numerous assessments undertaken by the social security bodies (medico-legal services). In The Netherlands, there is a reversal of the
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