Underinsured Motorist Arbitration – Tinnitus Claimed

James Miller headshotJim Miller arbitrated a claimed tinnitus case. The arbitration was conducted over a two-day period in December 2014 and January 2015. The hearing arose out of a two car motor vehicle accident which resulted in moderate damage to the back-end of the claimant’s vehicle. As a result of the accident, the claimant claimed he sustained soft tissue injuries as well as severe tinnitus that was ongoing and permanent. Jim and his experts conceded that the claimant did have tinnitus and that it arose from the subject accident. However, there was a dispute over the damages that should be awarded for such an injury.

The evidence presented showed that a diagnosis of tinnitus is subjective. Therefore, the credibility of the a person claiming such an injury is extremely important.

During the arbitration hearing, Jim got the claimant to admit that he was not “honest” when he completed a tinnitus handicap inventory (“THI”) for a treating physician. To that end, Jim got the claimant to further admit that his “pride” prevented him from being truthful. The treating physician who administered the tinnitus handicap inventory test to the claimant had concluded that the tinnitus was mild and described it as more annoying than disabling. The claimant testified that the tinnitus was degrading the quality of his life at both work and home and he was actively and aggressively seeking an answer and solution to this condition. The claimant’s version was supported by another physician who gave a THI at a later date which showed the tinnitus was severe.

In closing, Jim pointed out to the arbitrator that the claimant was not being “honest” with the specialist who could help him which did not compute. Tinnitus, unlike a broken bone, is a subjective injury and cannot be seen on an x-ray. Therefore, the credibility of the claimant as a historian should play a significant role in the arbitrator’s evaluation of the case. The claimant’s lack of candor called into question the credibility of his testimony in regards to the severity of his symptoms.

The arbitrator ultimately concluded that the claimant’s tinnitus was mild to moderate and was most accurately described by the claimant’s treating physician as annoying and not disabling. Therefore, the arbitrator awarded non-economic damages, both past and future, for the claimant with regard to the musculoskeletal complaints of tinnitus at $35,000.00. The arbitrator also awarded the claimant his medical expenses. This award was well within the applicable policy limit. During the discovery phase of the litigation, the claimant’s attorney refused to accept anything but the policy limits. However, after cross-examination of his client, the claimant’s attorney appeared to soften his position and ultimately asked for an award slightly below the limit.

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