On May 12, 2009, Plaggemeyer v. Lee was issued by the Michigan Court of Appeals. Plaggemeyer is the latest injustice in a long line of cases since Kreiner v. Fischer. It too harms Michigan personal injury lawyers and accident victims alike.
Mr. James Plaggemeyer was injured in a serious car accident. He suffered a broken left femur and required surgery. He spent several days in the hospital recovering from leg surgery and needed the use of a walker for an additional four weeks, crutches for the next eight weeks, and a cane for another four to six weeks. Mr. Plaggemeyer testified he had difficulty walking for about a year after the accident, and he sometimes called for his wife Ruth’s support when walking. Nevertheless, the Michigan Court of Appeals, in a panel with Sawyer, Murray, and Stephens, threw his case out of Court.
Mr. Plaggemeyer was unable to recover anything for his pain and suffering. These judges found that since James Plaggemeyer was able to return to work approximately six weeks after his car accident — even though he was in severe pain, unable to walk and under medical restrictions for only sit-down duty for eight weeks — he failed to demonstrate a serious impairment of body function. The Court found that he returned to unrestricted work after about 14 weeks after his car crash, yet dismissed Mr. Plaggemeyer’s testimony that he was forced to stop doing heavy yard work, use ladders, and had to sacrifice the hiking, jogging, and tennis he enjoyed before his car accident. Instead, the Court noted that he continued to camp each summer and was able to ride his bicycle on “a very limited basis.”
Lessons for Michigan Car Accident Lawyers and Crash Victims
1. It’s not Pain, it’s impairment.
The Court ignored the initial severity of the injuries (including the surgery), and focused on the total amount of time missed from work. Even though Mr. Plaggemeyer had a leg surgery that required days in the hospital to recover as well as crutches, a walker, and a cane for months thereafter; his problem was he tried to gut it out and return to work. Where many people would simply remain on disability, he returned six weeks after his car crash on pain medications and on sit-down duty only. Yet he was thrown out of court. Michigan law today severely punishes those most worthy of our respect as a society – those who try to do the right thing and provide for their families by returning to work. Mr. Plaggemeyer is one of those people.
Judge Donofrio’s excellent analysis in Benefiel v. Auto Owners Insurance Company is instructive here. I previously have written that Judge Donofrio tried to restore some common sense and sanity to Michigan’s threshold law in Benefiel with his observation that very severe injuries, such as fractures and surgeries that cause a shorter but more extensive period of impairment should be treated differently than less severe injuries that cause lengthy periods of less extensive impairment. In the most critical part of the decision, the Benefiel Court states: “… the more extensive the nature and extent of the impairment, the lesser the need for a lengthy or permanent duration of impairment in order to qualify impairment as a serious impairment of body function.” Therefore, it’s clear that injuries of severe intensity but shorter duration should be analyzed differently.
2. Time missed from work matters more than recreational activities.
Mr. Plaggemeyer testified he had to give up hiking, jogging, tennis, yard work, ladders and other activities. Nevertheless he returned to work six weeks after his shattered femur was repaired through surgery, and that was the deciding factor for this panel of the Michigan Court of Appeals.
3. Common sense matters less than binary code.
Lawyers must think “can/can’t” and “black/white.” What hurt Mr. Plaggemeyer’s case was that he tried to continue to do some things, and he was in fact able to continue to do them on a limited basis. The Court found that his ability to bicycle, even on a “very limited basis” and ability to still camp, even though he couldn’t hike or do other activities, was evidence that his car accident impairments were not “serious.” The same analysis applied to his work: He returned to work in six weeks, and that was more important than the restrictions, medications, crutches and walkers that he now had to use. In other words, people who go back to doing the same things as before a car accident, even though they are limited in duration or restricted in scope, are still punished, as their activity is used as evidence that the impairments are not serious.
4. Medical restrictions and/or a plaintiff IME (independent medical exam) would have saved this case.
Mr. Plaggemeyer was not my client and I do not know which lawyer handled his case. Whomever that lawyer is, certainly he cannot be blamed for thinking Mr. Plaggemeyer would have a right to recover money damages for his pain and suffering. Nevertheless and clearly with this more extreme panel in the Court, having a doctor specifically write a report about current and future restrictions would have made a big difference. These judges essentially ignored Mr. Plaggemeyer’s testimony because a doctor never wrote restrictions regarding items such as hiking or jogging.
Now, as I’ve railed about in the past, these bizarre and unrealistic expectations from the judges belong more in a work of fiction by Kafka or Orwell than in Michigan jurisprudence. And if these judges reviewed Benefiel and McDaniel, they would know physician-imposed restrictions are not required if they are based upon common sense likw Plaggemeyer; where someone who has had a broken femur and leg surgery says he can no longer jog or hike. Anyone who has sat an hour in a doctor’s waiting room for a rushed five-minute appointment knows how unrealistic it is to expect doctors to sit down and dictate a long list of specific medical restrictions like Judges Sawyer, Murray and Stephens expected. For a list of other things that may have saved Mr. Plaggemeyer’s case, please read my article on ways to meet serious impairment and increase the value of an auto accident case.
Latest Travesty to Justice Must be Revisited
My heart goes out to James and Ruth Plaggemeyer. I feel terrible that they, through no fault of their own, were seriously injured in an automobile accident of this severity and they received nothing. Meanwhile, Plaggemeyer serves as another vivid example of how Michigan’s car accident law has lost its common sense and reason. The case fails my “normal person” test: If you met any normal person and told them that someone could suffer these types of injuries, undergo a surgery, use aids to walk for months, have difficulty walking for a year, have to give up recreational hobbies and still be thrown out of court; any “normal person” would rightly be shocked. Such is the current state of Michigan’s auto accident law. I hope our Supreme Court revisits this continuing injustice soon.
— Steve Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008.
— Photo courtesy of Creative Commons, by Delcio G.P. Filho
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