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13 Ways to Meet Serious Impairment of Body Function

Update: McCormick v. Carrier is Michigan’s new auto accident law.

1: The Plaintiff Independent Medical Examination

The most important strategic change after Kreiner for Michigan personal injury attorneys helping people who have been injured in car accidents is the plaintiff independent medical examination. What can the PME do to help a lawyer and an accident victim avoid summary disposition under serious impairment? A PME can:

  • Create a factual dispute concerning the nature and extent of a plaintiff’s injuries, surviving defense motions for summary disposition.
  • Increase the value of the underlying case by offering opinions that will increase Colossus values.

Regarding the list of five “non-exhaustive factors” that the Supreme Court listed that “may be of assistance in evaluating whether the plaintiff’s “general ability” to conduct the course of his normal life has been affected,” the plaintiff’s independent medical examination can and should offer opinions on each:

  1. the nature and extent of the impairment
  2. the time and length of treatment
  3. the duration of the impairment
  4. the extent of any residual impairment
  5. the prognosis for eventual recovery

2: Use the Medical Literature

Michigan personal injury lawyers should arm his or her experts and the treating doctors with the authoritative medical literature to help explain the full extent – and the residual impairments and future prognosis – of his client’s injuries. Much of the published, peer-reviewed medical literature is helpful to explain the severity and permanency of many injuries. Bone fractures often put people at risk to post-traumatic arthritis, tendon and ligament injuries often will require additional surgeries and medical treatment, bulging and herniated disks can further rupture, causing serious and permanent injury, and perhaps even paralysis if not surgically corrected. It is up to the plaintiff personal injury lawyer to present a full and clear picture of what the accident victim is now at increased risk for or more susceptible to after a serious car accident.

3: Using the PIP Case

A car accident victim’s failure to pursue replacement services has been noted in several unpublished cases in Michigan as evidence that the accident victim’s injuries did not constitute a serious impairment of body function. Although our Supreme Court has indicated that no one factor is dispositive, i.e. that the duration of the impairment is short, does not necessarily preclude a finding of serious impairment, clearly if the plaintiff is employed, the more time off work the better. The inverse is also true, as Straub lost two months from work and then returned 25 hours a week for an additional three weeks before resuming full time employment and failed to meet threshold.

Too many good people, such as Mr. Kreiner, have rushed back to work prematurely after a serious car accident, in pain and on strong medications and in a reduced work capacity. They have succeed only in making their injuries worse and in hurting, and often completely undermining the success of their auto accident case as the law in Michigan focuses most intently on the period of impairment after a car accident, and not on the pain caused by the injuries from the accident. Yet this happens time and time again because car accident victims do not fully understand that they can claim no fault wage loss for the first three years after their car accident.

Often ignored and not aggressively pursued by many Michigan personal injury lawyers, the PIP case can be instrumental in helping plaintiff attorneys survive the post-Kreiner fall-out:

  • A substantial period of replacement services and wage loss can help to show the nature and extent of the impairment and the duration of the impairment after the car accident. The PIP case can be used to help the auto negligence case survive summary disposition. It can be used to offer persuasive evidence on how the plaintiff’s general life has been impaired.
  • Many plaintiff attorneys who have had their case load impacted by tort “reform” will find PIP cases offer greater financial reward and are far easier to handle compared with strongly contested 3rd party auto negligence cases with minimum policy limits.
  • These accident cases are easier and have an easier threshold. Plaintiffs must show what is “reasonably necessary” for an injured persons care, recovery and rehabilitation.
  • Thousands of dollars in penalty interest and attorney fees.
  • Increasing settlement values with Colossus.

4: The Importance of Continuing Medical Treatment

All five of the factors suggested by the Supreme Court are impacted by continuing medical treatment.

  1. Documenting injuries by ongoing medical treatment illustrates the nature and extent of the impairment.
  2. The type and length of treatment required is offered as one of the five factors in Kreiner.
  3. The duration of the impairment is best illustrated by the need, or lack of, continuing medical treatment.
  4. The extent of any residual impairment is specifically defined as physician-imposed restrictions, not subjective complaints or self-imposed restrictions by the plaintiff.
  5. Opinions on the prognosis for eventual recovery of the plaintiff will be made by treating doctors, the plaintiff’s IME, and examinations at the request of the underlying 1st and 3rd party defense insurance companies or attorneys.

The Importance of “Pre-Suit”: The lawyer helping an auto accident victim in Michigan must focus on the first several months after the car accident. These first five or six months after an automobile accident is the critical time period when the foundation is laid for establishing a serious impairment of body function under Michigan law. The plaintiff attorney’s focus during these first six months should be in making sure that the auto accident victim is documenting his injuries and treating with the correct medical specialists. Not only will this help your client get better, hopefully, but it will also help to document the impairment caused by the injuries suffered in the automobile accident. The timing is crucial because it is usually in these first few months after a car accident when a person’s own no fault insurance company will try to set up their insured with an insurance IME doctor. Often these doctors are more concerned with saving the insurance company from their contractual obligations to pay for medical treatment and wage loss and less concerned with giving the person they are examining the benefit of the doubt. After an insurance cut-off, expensive but critically important medical diagnostic testing such as an MRI, or a referral to a medical specialist will be nearly impossible without no fault insurance to pay for it.

Obviously, a second concern of the personal injury lawyer is the period of time off work if the accident victim was employed before his car accident. There is no set period of time in Michigan that a car accident victim must be off work to have a ‘good’ car accident case. However, a good lawyer must advise his client that the Michigan Supreme Court found that Straub’s three months off work was not sufficient, as a matter of law, to be a serious impairment of body function. Subsequent automobile accident cases have found six, seven and eight months off work to be inadequate and there is no telling, if Kreiner is not corrected by the Michigan legislature, where things might be six months to a year from now.

5: The Importance of Good Deposition Testimony

Lawyers tend to dread depositions. They can be so boring as to be mind-numbing as defense attorneys can go on for hours and hours, often in pursuit of nothing more than increased billables while defending the case. Yet after the 1995 legislative amendments and after Kreiner v. Fischer, depositions are more important than ever before in meeting serious impairment and increasing the value of auto cases in Michigan. There is simply no excuse for preparation. The lawyers in our firm, who specialize in helping people seriously injured in automobile accidents and do nothing else, still spend at least one to two hours preparing clients for their deposition, in addition to the hours spent before in client meetings and case analysis and review.

Examples of bad deposition testimony are found in many of the casualties after Kreiner v Fischer.

  • In Kreiner v. Fischer, Mr. Kreiner never missed a day from work. He testified his limitations did not prevent him from doing his job, with minor exceptions. Mr. Kreiner also testified that although he could not hunt rabbits, he could hunt deer.
  • In Straub v. Collette: Mr. Straub missed two months from work, worked 3 weeks at 25 hours a week, and then returned to work full time. He testified he was 99% better.
  • In Hicks v. Trammer: The plaintiff testified he could do everything he wanted to do, other than missing one day of work and one hunting trip.
  • In Herdus v. Knowles: The plaintiff testified about whether the injury interfered with normal daily activities “It might just a little, but not much.”
  • In Howitt v. Billings: Plaintiff still worked, and “could do everything” except walking for long periods of time, some exercises, and some sports.
  • In French v. Murphy: Plaintiff was still able to care for her children, perform household chores, but did not do aerobics any longer because “she ran after her kids all day long.”
  • In Miller v. Purcell: Plaintiff testified she could still do “all the same activities” she did before the accident, never missed a day from her 40 hour a week job, cleaned her home, did household chores, but said she could no longer knit and had to type one-handed.
  • In Lullo v. Heikkila: The plaintiff testified she continued to do the same activities as she had before the accident. The only activities that were affected were her reduced ability to still run, and some limitations on the types of exercises she could perform.

There is no substitute for time and preparation. Plaintiff attorneys must spend time with the client BEFORE the deposition to explain how the injuries have affected every arena of the plaintiff’s life. I would suggest at least 10 to 12 different examples of impairment, spread over the plaintiff’s work, recreation and hobbies, household activities and chores, sleep, and family activities.

6: Vocational & Functional Capacity Testing

Functional capacity testing can help show how what may seem at first a “minor” injury after a car accident can have a serious affect on a person’s ability to lead their normal life. A detailed and scientific analysis of the components that make up a person’s activities of daily living, broken down to show the impact on performing various tasks after the injury as compared to before can be instrumental in showing the impact of an injury on the nature and extent of a person’s general life.

There are many well-supported functional capacity tests that can be used. The AMA Guide to the Evaluation of Permanent Impairment, the AMA Guidelines for Pain and Disability, Social Security Disability guidelines, functional testing such as the McGill Pain Questionnaire, electronic pain diaries such as PIPER that allow a person to record their pain levels throughout a day and night, the Zung Depression Index and others will be helpful in showing continuing restrictions and disabilities of the plaintiff.

Lawyers can present these test results by themselves. Or, a plaintiff personal injury lawyer can hire and use a certified vocational counselor, or a certified disability examiner to document the impairments from a car accident and explain them to a jury or trial court. A lawyer can also send these important tests to the plaintiff’s treating physicians or to his or her own plaintiff IME to see if he or she concurs based upon their own examination and treatment of the accident victim.

7: Proving “Residual Impairment”

Most injuries will have some type of permanent sequella. Personal injury attorneys need now, more than ever before, to think about the cases and people they are helping to bring these injuries and impairments to life, and to demonstrate the real impact that these life-changing events can have on people’s lives after an automobile accident.

Our Supreme Court has made the extent of any residual impairment one of the five nonexhaustive objective factors to evaluate whether a plaintiff’s general ability to conduct his or her normal life has been affected. In presenting proofs to meet this prong, a plaintiff attorney will also likely greatly increase the value and worth of the underlying injury claim.

Take the most common type of injuries found in a motor vehicle accident – injuries to the neck or back. It is not unusual to find that the plaintiff has been prescribed muscle-relaxers and pain relievers. Many of these medications are quite strong. Many plaintiffs will take these prescribed medications several times a day, and often several pills at a time.

Showing the long-term toxicity of medications for pain over time can be powerful and visually impactful evidence. By simple math you can show visually the hundreds or thousands of pills that the plaintiff has consumed by buying inexpensive sugar pills and putting them in a glass bowl. A toxicologist, pharmacologist, or psychiatrist can talk about the long-term effect that these medications will have over time on the plaintiff’s body.

Pain, and especially chronic pain, can have a global effect on the body and the health of a person’s emotional functioning. Serious physical injuries will often lead to serious psychological and emotional injury. Pain can and usually does cause chronic fatigue over time.

One unintended consequence of our new law may well be that in forcing plaintiffs to provide sufficient proofs to survive under our Supreme Court’s interesting and unique interpretation of what serious impairment means, creative Michigan personal injury attorneys will be increasing the underlying value of cases many times over.

8: Using the Economic Claim

Plaintiff personal injury attorneys are still bringing the same $20.00 per day claim for replacement services in PIP cases, even as the real value of these household services has increased, with inflation, substantially over the past three decades.

There is no threshold for economic claims. Therefore, any 3rd party auto negligence claim potentially includes an accompanying claim for economic loss in the form of household services over the $20.00 per day that was paid by the 1st party insurance company.

Trial judges who may be entertaining a defense lawyer’s motion for summary disposition on threshold may be reluctant to grant the requested relief if they know that even if they grant the defendant’s motion they will still have the plaintiff’s case on the docket, and will still have to deal with a trial on the plaintiff’s economic loss.

The differential economic claim for household services over the $20.00 per day paid by no fault is always relevant to the nature and extent of the plaintiff’s impairment, the duration of the impairment, and how the plaintiff’s lifestyle was affected by his or her injuries.

9: The Probate Case

Plaintiff attorneys may want to consider taking a hard look at the probate case. The need for conservatorship appointments is always present in many automobile accident cases but frankly, often ignored by personal injury attorneys who either don’t understand probate law or who are concerned about costs or the dimunition in their influence or ability to help get the case settled if they have to account to a third party. Yet conservatorships and other related probate filings can certainly help to document impairment and the affect on a car accident victim’s general ability to lead his normal life.

10: The Plaintiff’s Expert Affidavit

MCR 2.116 requires that an expert’s conclusory opinions cannot be considered where an affidavit does not assert any facts (foundation) upon which the underlying affidavit is based. See also McDonald v. Vaughn, an unpublished case from May 18, 2004 (244687) (the affidavit must state the facts and foundation to support the offered opinion).

MCR 2.116 can be thus a sword and a shield for Michigan attorneys facing defense lawyer motions for summary disposition. It requires that the proofs offered must meet the same evidentiary threshold as evidence offered at time of trial.

This means the defense lawyer cannot use hearsay. The defendant cannot use pages of medical records, by themselves, to prove or support an argument. Foundation must be laid.

Insurance Medical Exams, or IMEs, the often notorious five or ten minute examinations by doctors who make hundreds of thousands of dollars working for insurance companies and defense lawyers and law firms are also hearsay. A Michigan attorney should bring a motion asking that they be struck and not considered part of the record when defending a motion for summary disposition on serious impairment.

11: The Order

May v. Sommerfield, 239 Mich App 197 (1999) is still good law in Michigan. In fact, the Michigan Supreme Court never even referenced this important decision in Kreiner, which sets forth a rather rigorous requirement that a trial judge must meet in deciding threshold questions.

The Michigan personal injury attorney must make clear that granting or opposing a motion on threshold requires that a court must make its “May” findings – a factual record for appellate review as to the nature and extent of the plaintiff’s impairments. Practitioners on both sides should therefore provide the court with specific factual findings as to what plaintiff’s impairments are.

Michigan plaintiff attorneys may consider providing a trial judge with an order that details these factual findings that the judge may use as a checklist when deciding whether the impairments meet threshold or not.

12: Using Cassidy v. McGovern

Although obviously incorrect, our Supreme Court in Kreiner has determined that the “most uncomplicated reading of 1995 amendment is that the Legislature largely rejected DiFranco in favor of Cassidy…” (footnote 8, page 12 of Kreiner v Fischer) How a four justice majority of our highest court was able to determine this from the plain meaning of a clearly written statutory definition that included and rejected elements of both DiFranco and Cassidy will be a question for our Legislature or our Supreme Court in future years.

For now, however, plaintiff personal injury lawyers must understand that we are in effect back to a Cassidy threshold that plaintiffs can use to their own advantage. If indeed Cassidy is the “ceiling” and Kreiner is the “floor,” then it follows that cases where serious impairment of body function was found as a matter of law under Cassidy would clearly survive under the similar but somewhat lower threshold, with its subjective person analysis, today.

Under Cassidy and its progeny, there were a number of important published auto accident cases, including Range v. Gorosh and Esperaza v. Manning that found serious impairment of body function as a matter of law where the impairment only lasted for three months. In Esperaza, the plaintiff missed only three months from work. Plaintiffs should argue that under the somewhat lower Kreiner threshold, these cases that met threshold under Cassidy should clearly meet threshold now.

13: Re-Thinking the Lawyers Approach when Handling Michigan Car Accident Injury Cases

Our new law will require more time and money for auto accident cases to survive. There will be fewer cases. However, these fewer cases that do survive should have greater value. Indeed, by making small changes and minor investments, and by constructing proofs to show the long-term residual impact of injuries and how likely they are to be permanent, many cases may even double or triple in value. By restructuring proofs to survive possible defense motions for summary disposition, Michigan personal injury attorneys will unquestionably be increasing the trial value of a car accident case for juries as they present proofs that many would not have before Kreiner.

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