13 Ways to Show Serious Impairment of Body Function
McCormick v. Carrier is the Michigan Supreme Court’s landmark interpretation of the auto accident threshold law
1: The Plaintiff Independent Medical Examination
The plaintiff independent medical examination continues to be – even in the era of McCormick v. Carrier – one of the most important strategies for Michigan personal injury attorneys helping people who have been injured in car accidents.
To be sure, the PME was particularly advantageous in dealing with the judge-made rules created in Kreiner.
But what can the PME do to help a lawyer and an accident victim avoid summary disposition under McCormick’s interpretation of the “serious impairment of body function” statute? Here’s what a PME can do:
- Create a factual dispute concerning the nature and extent of a plaintiff’s injuries, thereby creating a question of fact for a jury and, thus, surviving defense motions for summary disposition.
- Increase the value of the underlying case by offering opinions that will increase Colossus values.
- Show that a car accident victim has suffered an objectively manifested impairment of an important body function that has affected his or her general ability to lead his or her normal life by having “an influence on some of the person’s capacity to live in his or her normal [“pre-incident”] manner of living.”
2: Use the Medical Literature
Michigan personal injury lawyers should arm their experts and their clients’ treating doctors with the authoritative medical literature to help explain the full extent of his client’s injuries. Much of the published, peer-reviewed medical literature is helpful to explain the extent to which an impairment has “an influence on some of the person’s capacity to live in his or her normal [“pre-incident”] manner of living,” as the McCormick court ruled. 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
The importance of using a car accident victim’s No-Fault PIP case cannot be overstated. For example, 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.”
Similarly, too many good people 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 defense summary disposition motions:
- A substantial period of replacement services and wage loss can help to show the nature and extent of a car accident victim’s injuries – as well as the extent of a victim’s accident-related impairment.
- 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
Continuing medical treatment is crucial to showing how an objectively manifested impairment “affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living),” as required by McCormick.
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.
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 Michigan Supreme Court’s ruling in McCormick, depositions are more important than ever in meeting “serious impairment” and increasing the value of auto cases in Michigan. Why? Because McCormick has given victims a fighting chance to recover the justice they deserve.
There is simply no excuse for anything less than thorough and deliberate deposition 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.
The lawyers in our firm, who specialize in helping people seriously injured in automobile accidents and do nothing else, 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.
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 result in an impairment that “affects the person’s general ability to lead his or her normal life.” (MCL 500.3135(5))
The FCT can provide 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.
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; the McGill Pain Questionnaire; electronic pain diaries such as PIPER that allow a person to record their pain levels throughout a day and night; and the Zung Depression Index. These 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 Impairment that Affects The General Ability To Lead One’s Normal Life
Personal injury attorneys need now to think about the cases and people they are helping in order to bring their 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.
In the process, creative Michigan personal injury attorneys will be increasing the underlying value of cases many times over.
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.
8: Using the Economic Claim
Even though car accident victims can no longer recover excess replacement services after the Michigan Supreme Court’s July 2012 ruling in Johnson v. Recca, victims can still pursue excess economic claims for allowable expenses, work loss, and survivor’s loss. (MCL 500.3135(3)(c))
There is no threshold for economic claims. Therefore, any third-party auto negligence claim potentially includes an accompanying claim for economic loss that exceeds the daily, weekly or yearly amount that was paid by the No-Fault first-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.
Significantly, the differential economic claim for benefits in excess of what No-Fault is paying (and/or has paid) is always relevant to the nature and extent of the plaintiff’s injuries and the effect a plaintiff’s impairment has on his or her general ability to lead his or her normal life.
9: The Probate Case
Plaintiff attorneys may want to consider taking a hard look at the probate case. The need for conservatorship appointments is present in many automobile accident cases, but, frankly, is too often ignored by personal injury attorneys who either don’t understand probate law or who are concerned about costs or the diminution in their influence/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, thus, be 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 Serious Impairment of Body Function Test
It’s essential that auto accident attorneys know what to expect – and what to demand from judges – under McCormick’s “serious impairment of body function” analysis:
“To begin with, the court should determine whether there is a factual dispute regarding the nature and the extent of the person’s injuries, and, if so, whether the dispute is material to determining whether the serious impairment of body function threshold is met. MCL 500.3135(2)(a)(i) and (ii).27 If there is no factual dispute, or no material factual dispute, then whether the threshold is met is a question of law for the court. . . . If the court may decide the issue as a matter of law, it should next determine whether the serious impairment threshold has been crossed. The unambiguous language of MCL 500.3135(7) provides three prongs that are necessary to establish a “serious impairment of body function”: (1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living). The serious impairment analysis is inherently fact- and circumstance- specific and must be conducted on a case-by-case basis.”
12: Using Cassidy v. McGovern
The McCormick court said the following about the influence of the Supreme Court’s previous rulings in Cassidy v. McGovern and DiFranco v. Pickard on the existing “serious impairment of body function” test:
“[W]here the language used in MCL 500.3135(7) was originally adopted and interpreted in Cassidy and DiFranco, it may be presumed that the Legislature intended the previous judicial interpretation to be relevant.” (Page 13)
“[T]he statute does not create an express temporal requirement as to how long an impairment must last in order to have an effect on “the person’s general ability to live his or her normal life.” . . . [T]o the extent that this prong’s language reflects a legislative intent to adopt this portion of Cassidy in some measure, Cassidy expressly rejected a requirement of permanency to meet the serious impairment threshold.” (Page 21)
13: Re-Thinking the Lawyers’ Approach when Handling Michigan Car Accident Injury Cases
Two of the main ways in which Michigan personal injury lawyers will need to rethink their approach to auto accident threshold cases as a result of McCormick are:
- Plaintiffs lawyers will start using McCormick to file motions for summary disposition as a matter of law. If plaintiffs lawyers can show “some effect” that influences “some of plaintiff’s capacity to live his or her normal life,” then courts should be granting motions on behalf of the plaintiff.
- So-called independent medical examinations (IMEs) by hired-gun, insurance-company doctors – who get paid vast amounts of money to usually find nothing wrong with the crash victims they’re hired to examine – may not strike victims’ cases with the same lethal force that they did under Kreiner. By the time most of these IME exams take place, say eight months to a year after a car accident, and normally several months after the lawsuit has been filed, the plaintiffs should have a well-documented and uncontroverted period showing how the car accident has affected their general ability to lead their normal lives, such that they will be entitled to a finding of “serious impairment” as a matter of law. Or, at a minimum, the evidence will create a question of fact for a jury, thereby precluding dismissal on a defense summary disposition motion.