ACCIDENT RECONSTRUCTION - REALITY CHECK
LOW IMPACT INJURY ACCIDENTS
ARE THEY REAL? YES!
DON'T BE FOOLED BY DEFENSE "EXPERTS"
DISPELLING THE MYTHS THAT YOU CANNOT BE INJURED IN A "LOW IMPACT" AUTO ACCIDENT (aka: low speed rear impact collision: LOSRIC)
Every day, insurance company lawyers are making this argument across this nation; that injury victims could not possibly have been injured in auto accidents because little or no visible property damage was seen in their vehicles. Every day thousands of insurance adjusters are making the same claim, across the country to countless injury victims. All in a concerted effort to alter the truth of the matter: people were injured through no fault of their own.
The unsettling reality is that the insurance companies are getting away with it. For the first time, people who were legitimately injured in rear-end collisions, and other similar cases, are being told their injuries aren't real. This is because of the myths fostered by the insurance industry about "low impact" auto accidents and those who were injured in them. So, how is this happening? Our investigation will eventually lead to the Accident Reconstructionists (ARs) as well as to the IME docs.
Where do those myths come from? How do they get perpetuated? The answer is insurance companies. These companies have literally spent tens of millions of dollars over the past several decades to convince the public that most people who make insurance claims - especially personal injury claims - are fakes who are attempting to defraud insurance companies out of money and in doing so are directly responsible for the ever increasing insurance rates that we all have to pay.
Understand that insurance companies do not make money only selling insurance. The sale of insurance merely provides liquid cash each year to pay some claims and overhead. It is a never ending river of easy money that is mostly invested in blue chip stocks, bonds, treasury bills or prime real estate that yield handsome profits. The concept of using other people's money for your own profit is called "Playing the Float." Many institutions do it: banks do it, payroll companies do it, Hollywood studios do it, mortgage companies do it and of course, Insurance Companies do it too. Yet, those profits seldom, if ever, are factored in when it come to determining what you and I have to pay in insurance premiums. Instead, they whine that because of all the false and fraudulent claims they have to pay, they are actually losing money when you compare the amount of premium dollars taken in with the claims dollars paid out. This is just a very clever urban myth. The greatest trick Insurance Companies ever played on the American public is making people believe that no one ever gets hurt in a car crash below 5 mph.
With regard to "Playing the Float," and precisely because most folks do not know about this - and most state agencies that regulate insurance are shamelessly controlled by the insurance industry - we pay ever increasing premiums for insurance coverage that most of us are afraid to use for fear that our rates will go up even further or our coverage canceled.
How do the myths that most accident victims are fakes and the cause of our outrageously high insurance rates get perpetuated? By every means possible: Accident Reconstructionists who bedevil folks with complex formulas that "prove" no injuries happened to IME doctors who also don't believe in these injuries and "independently" examine files and/or patients for profit.
For the insurance companies, it is but a small, progressive step to add to the proposition that because the injured person's car sustained little or no visible damage the people in the car could not have possibly been injured in the accident. It is a fallacious argument but one that has great appeal and the appearance of logic to the public generally, and jurors particularly, who have little or no insight or experience in insurance law, medicine or accident reconstruction.
WHAT IS A "LOW IMPACT" ACCIDENT aka: Low Speed Rear Impact Collision-"LOSRIC"
A LOSRIC is just what is says, a "target" vehicle is struck in the rear by a "bullet" vehicle. Low velocity is variable. It can be anywhere between about 15 mph to 1 mph. The big argument, and the thrust of this article, is about the fictional 5 mph threshold. Basically, insurance companies with their legion of IME docs and now Accident Reconstructionists (ARs) have created a vast urban myth that goes like this: "If a car is hit in the rear at 5 mph or less, then there cannot be any physical damage to the people in the car." To "prove" this, their agents like ARs go to court and say, with few exceptions, that the accident in question was "only" 5 mph and thus, no one got hurt. This means, there cannot be a settlement because there was no injury. The current critical literature says otherwise but the general population doesn't know this.
Well researched papers and research that comes out regularly shows us that i) car and truck bumpers were modified in the late 80's to absorb impacts of around 7 mph so they wouldn't show damage, ii) the inertial energy pushed into the target car has to go somewhere whether or not the bumper "looks" damaged, iii) the impact pulse energy is transferred both into the occupants of the vehicle and often into the frame and frame rails that are NOT readily visible (see graphic below), iv) people around the world are suffering from whiplash in epidemic numbers these days and v) most of the confusing calculations by ARs is simply junk science. *More on all of this later.
EXPLODING THE "BIG MYTH"
There simply are no scientific test results, or statistical studies, that support the insurance industry's proposition that "no property damage = no injury". Another way of reiterating that myth is, "No crash, no cash." Neither are there any scientific test results, or statistical studies, that support its corollary hypothesis that "little property damage = little injury" while "big property damage = big injury". Believe me, if those propositions were scientifically true, every insurance adjuster in the country would be walking around with those test results. THERE IS NOT ONE SCIENTIFIC PAPER IN EXISTENCE THAT SUPPORTS THIS MYTH.
GETTING ORIENTED AND UNDERSTANDING "THE INSURANCE GAME"
The questions that arise in even a relatively simple "low impact" case can be incredibly complex - both legally and medically. However, before we undertake to deal with those more sophisticated issues, we need to become oriented and understand a few "basics" of the situation. Whether a person was injured, a "low impact" accident is always a matter of opinion about which reasonable people may legitimately differ. That's how defense lawyers get their foot in the door and are able to raise the issue even though, as we have seen, there is no scientific basis for their basic premise that "no property damage = no injury" or that "little property damage = little injury".
Further, because most of us - lawyers, adjusters, judges, arbitrators, doctors, lay public; and jurors included - have little, or no, knowledge or expertise regarding the mechanics of low impact accidents, and thus, no basis for formulating informed opinions of our own, the law generally permits and in some instances requires, the use of expert witness testimony, in the form of expert opinion, from "experts" who do possess such knowledge and expertise, in order to assist us in answering the critical questions posed by such accidents.
It is important to understand however, that the value of such expert opinion depends upon the background, education, experience and expertise of the particular expert(s) involved. In short, all experts are not created equal. There are for example, an incredible number of "ex-cops" who are hired by insurance companies and passed off to be accident reconstruction "experts." All too often their only qualifications are that they once attended a weekend class on accident investigation, or accident reconstruction, work cheap, and have no qualms about parroting the company line that "no property damage = no injury".
Interestingly, ARs are NOT licensed, or certified, and anyone who can manage to print-up a business card on his home computer can claim to be an "expert." As we will also see later, the area of "low impact" auto collisions is an area in which insurance company sponsored "junk science" not only abounds but, tends to predominate. It is an area of human knowledge where, unfortunately, intelligence, integrity, high standards, impeccable credentials and rigorous critical thinking are often lacking.
Given the relatively high standards set by the law for the utilization of expert opinion, it is amazing the caliber of the people who are accepted as "experts" by courts and the absolute nonsense that is admitted as "expert opinion". That occurs principally because courts frequently cop-out and allow such nonsense in on the theory that the flimsy credentials of the expert and lack of scientific support for the expert's opinion, go to the question of the "weight of the evidence" (i.e. how much credence it has) as opposed to its legal admissibility.
Any serious inquiry into the causation of injury in "low impact" accidents requires a multi-disciplinary approach, typically involving such diverse bodies of knowledge as medicine, physics, biomechanics and "real" accident reconstruction. Since one individual is seldom an expert in all three of those areas, it is often necessary to involve not just one expert but, at least three: a doctor (usually an orthopedic surgeon), a biomechanical engineer and a legitimate accident reconstructionist.
If you are the injured person in a "low impact" case and are serious about wanting to prevail, you need to make a commitment to prevail. You will need to be informed and well read on this subject and understand what you and other victims like you are up against. The insurance companies are betting that you will not make that commitment. The secret of their success generally is not that their experts are better but, simply that they have at least one while you have none.
Be aware of the fundamental falseness of another "low impact" myth: Insurance companies like to go on about the fact that today's cars are better built to withstand collisions (of five miles per hour or less) and thus are safer. The idea that new cars are built to "absorb" the energy generated by an impact rather than it being absorbed by the vehicle's occupant is fundamentally false. Picture in your mind one of today's automobiles, composed primarily of light-weight metal, plastic and glass, being hit by a 1955 Chevy, a vehicle basically built out of cast iron, and guess which vehicle and its occupants survive! You will be lucky to even find all of the bits and pieces of today's "safer" car.
>Safety??: For the most part - and with the exception of seat belts, air bags and certain kinds of head rests - the "safety improvements" of today's vehicles, such as "impact absorbing" bumpers, have little to nothing to do with occupant safety. They are the result of intense insurance industry lobbying of auto manufacturer's to reduce auto repair costs by replacing expensive cast metal parts with cheaper disposable lightweight metal and plastic components that crush or give way easily upon impact and can be more economically replaced or exchanged-out when damaged rather than having to be physically repaired. In other words, the purpose of such devices, like the "impact absorbing" plastic bumper, are to save insurance companies money, not save the vehicle's occupants.
>Preferred Body Shops: When you take your damaged car for repairs you are always told there are a number of body shops "preferred" by your insurance company. What that means is that you may go to these "preferred" body repair facilities and that body shop can initiate repairs without an insurance adjuster coming in to inspect the damage and approve of a repair job. Sounds good doesn't it? What's the catch? The "preferred" body shops become "preferred" by agreeing to perform only cosmetic repairs on cars. Most accidents involve the frame and frame rails of a car which can't be readily seen by the average person. "Preferred" body shops will never repair a frame or frame rail unless paid extra to do so. Thus, in a LOSRIC, the "preferred" body shop changes the bumper, bangs out the dents, unbends strut towers maybe and paints part of the car in what amounts to a band-aid approach to car repair and leaves any unseen damage alone. In this way, the "preferred" body shop gets to stay on the preferred list by keeping expenses minimal; and it gets more business that way. Ever have an accident, get your car repaired and found that when you went to drive it, it didn't feel right? The frame was bent and not repaired, that's why.
>Bumpers: A further word or two on those "impact absorbing" bumpers: They do not "absorb" the impact or the energy generated by a collision at all. First, they generally are built to "absorb" only a five mile per hour impact. Second, a five mile per hour impact will, typically, crush their interior "impact absorbing" plastic material rendering them incapable of absorbing any energy generated by an impact in excess of five miles per hour. Third, scientific impact studies indicate that whatever energy is generated by a collision is not truly "absorbed", or "stopped", by the "impact absorbing" bumper at all but, rather, is transmitted forward where, after being multiplied several times, it is, ultimately, absorbed by the vehicle's occupant(s)! So much for "impact-absorbing" bumpers. Bottom line: "impact absorbing" bumpers, don't.
UNDERSTANDING THE BASIC THEORIES AND TERMINOLOGY
The Significance of "Delta V": The heart of the insurance companies' argument, "That a vehicle occupant could not have been injured in a "low impact" collision," is what we now call the "Delta V Myth" and the premise that if the Delta V of the car struck was less than five miles per hour the occupant of that vehicle could not have been injured. Read on.
A very "scientific" mathematical formula is employed and usually accompanied by a considerable amount of "scientific" hoopla and "scientific" jargon intended to impress one and all. Don't be impressed and don't be fooled.
>Definition of "Delta V": Basically, "Delta V" refers to "change of velocity" (Delta is the universal phrase for change), i.e. speed. In the classic rear-end collision a vehicle is stopped and sitting still at a stop light when struck from behind by another vehicle. The force of that impact immediately catapults the struck (target) vehicle forward accelerating it forward from zero miles per hour to "x" miles per hour. That accelerated speed, or change in velocity, of the struck vehicle (caused by it being struck) is its "Delta V". It is an instantaneous occurrence in which the two cars make contact and, typically, bounce off of each other. It is all over within a matter of milliseconds.
During that instant, both vehicles experience Delta V. The car struck gains speed and experiences a positive Delta V while the car that hit it loses speed and experiences a negative Delta V. It is here, we need to watch out for the "ropadope"; the fancy distracting footwork of the insurance company's expert witness. Depending upon the relative weight of the two vehicles, the car doing the hitting can lose more speed than the vehicle it struck gains and thus end-up experiencing a greater Delta V than the vehicle it struck. The lighter vehicle will always experience the greater Delta V regardless of whether it is the one that got hit or did the hitting. Insurance company experts like to exploit this phenomena, whenever they can, to argue that their driver, who was not injured, was actually subject to a greater Delta V than the occupant of the vehicle that was struck and who is claiming to be injured. The answer to that argument is; the Delta V forces are applied differently to the two drivers. While the body of the driver of the car that caused the collision may be thrust forward by the impact, and experience some potentially harmful flexion of the neck, that motion is not the same as that experienced by the driver of the that was struck whose head, neck and spine are flexed in far more complex ways that have a greater potential for causing injury. In short, the biomechanics for the two drivers are simply different.
Because the crux of the insurance company argument is that the Delta V experienced by the occupant of the struck car is less than five miles per hour - which under their theory means that the occupant could not have been injured - there is a tendency for insurance company experts to play a numbers game in an effort to manipulate the occupant's Delta V below five miles per hour and into the "no injury zone". They may, for example, seize upon factual variations of how the collision occurred such as pointing out that the injured occupant of the struck vehicle had their foot on the brake at the time of impact - a factor that might reduce the occupant's Delta V figure slightly.
>Definition of "Low Impact": Although, as we have seen, insurance companies are constantly expanding the definition of what constitutes a "low impact" collision, within the community of expert witnesses, the accepted definition is generally a three-pronged one involving a crash in which energy is conserved, the Delta V is ten miles per hour or less, and the closing speed between the striking car and the struck car is less than 10-15 miles per hour.
>Definition of "Closing Speed": Again, however, we have to be careful not to be razzle-dazzled by the insurance company expert who may play games with the "closing speed". Closing speed refers to the relative difference in the speed of the two cars at the time of impact- not their absolute speed. Example: if the striking car is traveling 70 miles per hour when it rear-ends the struck car, which is traveling at 60 miles per hour, the "closing speed" of the two cars is ten miles per hour.
Undermining the "Delta V" Theory
Since today most cars can survive a six mile per hour Delta V without sustaining any visible damage, the presence of any visible damage suggests that the vehicle was subjected to a Delta V greater than the magic five miles per hour which the insurance companies insist is the minimal threshold for injury. Where did the Idea of a "Delta V" Threshold Come From? In a nutshell, it is the invention of an insurance company. The ultimate conclusion of the human study crash tests - funded by State Farm Insurance - was that most whiplash victims are fakes, i.e. that a properly seated, reasonably healthy, person, using a properly adjusted head rest, should not sustain any "serious" neck injury in rear-end collisions where their Delta V was under five miles per hour.
Interestingly, even some of the employee-subjects, who participated in this rather flawed and biased study, reported some neck pain and soreness although - in the eyes of the researchers - it did not constitute "serious" neck injury. Nevertheless, the insurance company had what it wanted - an arbitrary magic number which would allow it to argue that any vehicle occupant, who claimed to have been injured but had a Delta V of under five miles per hour, was an obvious fake and a fraud. We now know that this is not true.
Overcoming Junk Science Defenses
We'll now discuss the essential crux of this essay; that of the basic defense (insurance company) strategies most commonly used against car accident victims in LOSRICs and the doctors that treat such victims. Here they are:
- Whiplash is only an AIS-1 injury and thus it is trivial.
- LOSRICs are no worse than flopping down in a chair.
- Injury Assessment Reference Values (IARVs) preclude any injury.
- The plaintiff (injured person) knew of the impending crash and was prepared for it. Thus, there was no injury.
- Published bumper heights preclude bumper to bumper contact and thus, there was no injury.
- Human subject crash tests "prove" that serious injuries cannot occur in LOSRICs.
1) AIS-1: Most whiplash injuries are rated as AIS-1 on the "Abbreviated Injury Scale." AIS-1 = minor. This scale is often misused by defense experts to improperly trivialize whiplash injuries. The fact is, the AIS was never intended to rate whiplash severity. The AIS was, and is, intended as a threat to life ranking with higher AIS numbers corresponding to increased threat to life. Jeffrey Pike of the FORD MOTOR CO. in his great book on the subject (Pike J, "Automotive Safety, Anatomy, Injury, Testing & Regulation," Soc. of Auto. Eng. pg. 57) stated that the AIS values have no significance other than to designate order. They also have no magnitude. Whiplash is not normally considered a threat to life issue; it is a quality of life issue that is not in any way, addressed by the AIS.
2) "The LOSRIC was no worse than flopping down in a chair": This is an all time favorite argument by defense experts. After all, the argument was originally put forth in a peer reviewed article that appeared in SPINE Magazine several years ago (Allen, et. al., "Acceleration Perturbations of Daily Living, A Comparison to Whiplash," SPINE Vol. 19 (11), 1994). The article obviously tried to prove that flopping down in a chair produced the exact same force vectors as what happens to people's heads in LOSRICs. A careful reading of the article clearly shows that the authors never claimed that the results of the study suggested that a person could not be genuinely injured in a LOSRIC. Actually, the study is so fatally flawed; it is a miracle that it ever got published in the first place. Be that as it may, defense experts are just now starting to not use the study because of the strong rebuttals that have occurred against the paper.
3) IARVs preclude injury: This contraction stands for Injury Assessment Reference Value. The value is usually a numerical measurement of the force or torque needed to break a bone, tear a ligament or muscle. In the case of the neck injury criteria (NIC), it is a measure of the differential acceleration at the head and lower neck and describes the likelihood of possible long term nerve damage. Insurance company lawyers and "experts" often use the IARV to suggest that a person could not have been injured in a particular crash. And how? By claiming that the forces involved were below the IARV. The fact is, that determining precise forces acting on a person in a real crash is impossible. As well, precise determination of the vehicle accelerations in a LOSRIC is equally impossible (unless the car was pre-loaded with testing gear).
When a defense "expert" uses IARVs in an attempt to shower doubt on claimed injuries or to cut off a claim by the plaintiff (injured person), assume that the defense "expert" is probably grossly exaggerating the relevance of the IARVs. Biology from person to person varies wildly and among ARs, this is well known. An honest AR or biomechanist would say something like this if the subject of IARVs came up: "The crash injury reconstruction revealed the presence of known injury-causing mechanisms that could possibly result in certain injuries." Fair enough. But let it not be said definitively that "X" injury always causes "X" bodily harm. IARVs can be made to sound like authoritative science in court. The fact is IARVs are really just educated guesses based on limited and extremely questionable research data.
4) Preparedness for Crash: It is well known that awareness of an impending crash tends to mitigate the flexion/extension stresses on a person's neck. that is to say, it is; an advantage that the person in the car sees the impending crash and braces for it. We agree. Defense (insurance company) arguments are that if the person admits to bracing for a crash, then there could NOT possibly have been an injury. The flaw in this argument is that there are too many variables in a real life crash or LOSRIC that even bracing for it cannot keep a person from getting injured. Volvo actually did a study on this and found that there was no difference in injury outcome between people who expected the crash and those that did not. (Jakobsson, Lotta, et. al., "Volvo Car Corp. Safety Report; Analysis of Head and Neck Responses in Rear End Impacts - A New Human-like Model, " pg. 3. The reason being that there is often "retraction" if there is a sizeable back set (clearance between the back of the head and the head restraint). In other words, if people sit too far in front of their head restraint, injury is much more likely. This, whether or not there is awareness of the accident. Retraction is the force that produces the neck motion that leads to nerve cell damage predicted by the Neck Injury Criterion (NIC).
5) Published Bumper Heights Don't Match: As Einstein said, it's all relative. Defense "experts" often compare published bumper heights and if the two cars in question don't match, the expert will claim that there could not have been much of an accident, nor could there have been an injury. The real world fact is, there are pot holes, dips in the road, snow/ice and any number of reasons why one car may be either elevated above or depressed below another car in a LOSRIC. Such irregularities will often align otherwise different bumper heights, non-align matched bumper heights and let's not forget that heavy braking just before an accident will depress an entire front end of a car significantly. Tread carefully in the bumper height argument.
6) Human Subject Crash Tests Prove Serious Injury Cannot Occur: Probably the most inane, meritless, vapid, junk science argument going in the insurance defense industry is this. Incredibly, a number of defense "experts" actually subjected themselves to LOSRICs. This to bolster their credibility in court. They can then tell a jury, "Look, I've been in dozens of LOSRICs and I have no injury." Does it prove anything? No. >>>> Here's why: the actual seated position of the person in the car is vital and often overlooked. Exactly how the lower spine and pelvis are positioned at the instant of the crash can have a dramatic effect on the extent of the neck injury. Multiple crash tests actually participated in by a defense "expert" have a bit of theatrical value but imply nothing about the likelihood of injury in the general population. Add to this, these crash tests are not normalized for "Crash; Pulse Magnitude." Thus, although the testing may be able to repeat Delta V changes they (the tests) remain unreliable due to the Crash Pulse cannot be compared to what was felt by the plaintiff in a real accident. Consider what Volvo said on this issue: "At the same Delta V, a crash pulse with a lower g-level, compared with a higher g-level, turned out to have reduced effect on almost every neck response calculated. The accident data showed that this is a parameter to consider when designing the rear-end structure of cars." (Jakobsson, Lotta, et. al., "Volvo Car Corp. Safety Report, Analysis of Head and Neck Responses in Rear End Impacts - A New Human - like Model," pg. 12 subheading: Influence of Parameters.) To sum up, there is no correlation; between a crash pulse in a staged crash and the real world. It is thus dumb theatrics to say one has been in a bunch of staged LOSRICs and never had an injury. Another researcher named Szabo has published research articles on whiplash. His stuff is often used by defense "experts" to debunk claims of pain by valid crash victims. Among other things, Szabo found that the lower the Delta V, the more head and neck acceleration and hence more whiplash injury.
@All in all, the "no crash = no cash" insurance party line has no scientific basis. There are no papers supporting the theory and no expert who is truly objective will support such hokum. ARs and IME docs hired by insurance companies will generally continue to make their false claims but they cannot back those claims up with scientific literature.
UNDERSTANDING AND OVERCOMING THE DEFENSE "EXPERTS"
As we stated earlier, there are no degrees bestowed for Accident Reconstruction. First understand that AR is not engineering at all. AR began as a branch of police investigation science. To become an AR requires about 400 - 600 hours of classroom training in accident investigation and reconstruction to be followed by many years of field experience. To get the actual training, one must attend the available institutions that actually teach the subject. The four major facilities that teach credible programs in AR are: 1); Univ. of N. Florida Institute of Police Technology and Management, 2); Texas A & M University, 3) Univ. of California at Riverside and 4) Northwestern University Traffic Institute.
The Society of Automotive Engineers also offers a few courses in AR. Be advised, in lieu of actual ARs, many insurance companies now hire college professor Ph. D. types to come in and render opinions. While highly educated, these individuals don't know much about AR.; Not to worry with the jury either; in a study conducted by the F.B.I where 1500 jurors were interviewed, it was decided that only 1.2% felt that general education was the most important factor in evaluating the credibility of an expert witness. Specialized training was the most important factor to 60% and 37% stated that the number of years of experience was most important. (Illsley C, "FBI; Juries, Fingerprints and the Expert Witness," US Gov. Printing Off. 1987.
Stay tuned . . . . . . . .
Finley D, Stoll A, Fariello, "Plaintiff's Lawyers Guide to Minor Impact Cervical and Lumbar Injury," Thomson/West Pub. 2008.
Pape E, Brox JI, Hagen KB, Natvig B, Schirmer H:"Prognostic factors for chronic neck pain in persons with minor or moderate injuries in traffic accident, "Accid Anal Prev (39)1:135-146, 2007.