As insurers look to biomechanics as a way to combat insurance fraud, courts are accepting the testimony of biomechanical experts to varying degrees, and one company in New York is seeking to make it easier to connect carriers with the appropriate experts for a given accident. By understanding how a low-speed collision from any given angle could affect specific body parts, adjusters can say with confidence whether certain common injuries could have resulted from specific accidents.
That is the idea behind biomechanics, according to Sean O'Loughlin, president of New York-based Global Biomechanical Solutions.
To see how experts can use biomechanics when reconstructing an auto accident, it helps to understand the science behind the concept.
Mr. O'Loughlin explained it by using a rear collision as an example. He said that as the rear car strikes the lead car, the lead car accelerates forward–a change in velocity known as the "Delta-V."
Inside the lead car, it appears as if the passengers move backward. In reality, Mr. O'Loughlin said, it is the car moving forward faster after being struck–while the passengers are moving forward at the same speed at which the vehicle was moving before being struck.
After the passengers move back into the seat of the car, they will rebound at no greater than half of the car's Delta-V. So if the car is struck and has a change in velocity of five miles-per-hour, the passengers will rebound off of the seat at no faster than 2.5 mph.
Keeping the passengers' motion inside the vehicle in mind, certain injuries are likely or unlikely to occur, biomechanical experts contend.
John Montalbano, vice president and chief operating officer of Global Biomechanical Solutions, said in a recent presentation before the New York Alliance Against Insurance Fraud that a lumbar herniation is a common injury seen by insurers for a low-speed, rear-end collision.
This type of injury, he said, is a hyperextension of the spine, and is generally caused by repetitive motion, such as lifting, which causes disk desiccation over time.
In a low-speed, rear-end collision, Mr. Montalbano explained, the seat back prevents hyperextension of the spine on the initial impact, and the seat-belt prevents too much movement forward on the recoil. It is therefore unlikely that a lumbar herniation could be caused by a low-speed, rear-end collision.
Biomechanical experts can demonstrate, through math and physics, how the body would move and react during a low-speed collision, thus strengthening an insurer's position–either in court or in settlement talks.
The use of biomechanics in combating insurance fraud is not necessarily new, and has been gaining in popularity since the late 1990s. A company such as Global Biomechanical Solutions seeks to leverage biomechanics by acting as an intermediary between insurers and biomechanical experts.
Mr. O'Loughlin said the company first pre-screens a given accident to ensure that a biomechanical expert's services are appropriate. Insurers log onto a proprietary Web site–www.ebiomechanical.com–and enter requested information about the accident. Once the information is submitted, the site determines if the submitter may benefit from using a biomechanical engineer.
After pre-screening, Mr. O'Loughlin said he then tries to match the appropriate expert to the insurer. He said there are different types of biomechanical experts, just like there are different types of lawyers.
If an insurer chooses the wrong type of expert, Mr. O'Loughlin explained, that expert's testimony may be deemed inadmissible at a Frye hearing–held to determine whether scientific evidence is credible enough to be permitted in court.
In New York, courts in general have accepted the testimony of biomechanical experts to varying degrees, according to Cassandra Anderson, a representative for the NYAAIF, who said she spoke with legal experts and studied case history on the subject.
She said state courts are likely to allow the expert opinion of a biomechanical engineer regarding whether a particular injury could have been caused by a given accident. This is especially true if there is a "meaningful medical assessment" in the case as well, she noted.
Federal courts accept the testimony to a lesser degree, according to Ms. Anderson, noting that they allow biomechanical experts to testify–but only about the forces generated in an accident.
In these cases, she said, the biomechanical expert is less likely to be able to render an opinion on causation–whether the accident in question caused a specific injury–because the courts feel these experts are not qualified to render medical examinations.
Ms. Anderson cited a specific case this year–Morgan v. Girgis, in the U.S. District Court, Southern District of New York–in which a biomechanical engineer was deemed qualified to offer testimony on forces generated in accidents, but was not allowed to offer an opinion on whether the accident in the case could have caused the injury in question.
But besides allowing for expert testimony at trial, Mr. O'Loughlin said biomechanical expertise can be used as a tool to settle cases before they go to trial.
He said there tends to be inflationary pressure on settlements. For example, Mr. O'Loughlin said if a carrier settles a herniation case at $35,000, a lawyer then knows they can get $35,000 from that carrier without going to trial and might try for $40,000 next time. After that, the lawyer may try to settle at an even higher figure.
"In this business of personal injury," he said, "especially in courts in Brooklyn and the Bronx, it's basically like a casino"–where some attorneys use carriers to get as much money out of them as they can.
Mr. O'Loughlin said using biomechanical expertise during the settlement process gives companies a little more leverage and demonstrates that the carrier has the ability to fight back.
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