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Another Car Accident Serious Impairment Case Trashed by Michigan Court of Appeals

September 3, 2008 by Steven M. Gursten

The Michigan Court of Appeals has thrown out yet another serious impairment of body function threshold case under the no-fault act, creating more confusion for Michigan car accident lawyers and more bad news for innocent victims of serious automobile accidents.

The case, Jeanene Adams and Beverly Adams v. Willie Hodge, is a striking reminder that cases that used to be worth big money — in the days before the Michigan Supreme Court passed Kreiner v. Fischer — may not be worth anything today.

And the message from Adams is loud and clear: These auto cases only can be successful if Michigan personal injury attorneys can document significant pre- and post-motor vehicle accident differences in lifestyle (impairments).

The Big Mistake: Plaintiff’s Attorneys Focus on Pain, Not Impairment

At issue in Adams was whether the plaintiff’s significant wrist surgery from a two-car collision with the defendant changed the trajectory of her life.

According to the opinion, the plaintiff had surgery, resulting in permanent placement of a plate and six pins in her wrist. In addition, the plaintiff underwent approximately 36 physical therapy sessions.

Following the accident, the plaintiff was put on medical disability from her job as a wardrobe attendant at a casino for three months. The plaintiff said she suffered pain doing her job, causing her difficulties in bathing, driving, cooking and housework. She also continuously wears a brace on her wrist in response to swelling and pain.

Pain Not Enough Anymore Under Michigan’s Serious Impairment Law

Surgery cases requiring plates and screws like this one used to be worth policy limits under Michigan’s old automobile accident laws.

Not anymore.

Relying on MCL 500.3135 and Kreiner, the Court of Appeals stated “… (Plaintiff) does not indicate that her injury has wholly precluded her from continuing any of her pre-accident activities. Instead, she protests only that pain accompanies many of her activities, sometimes causing her to limit or modify how she does them.”

With that, the Court concluded that the plaintiff’s complaints highlight “inconveniences,” but not a change in the trajectory of her life.

How to Prove Serious Impairment of Body Function in Michigan Car Accident Cases

This case falls in line with many already dismissed by the Court of Appeals. According to data recently gathered by Michigan Lawyers Weekly, 189 out of 208 plaintiffs have lost their serious impairment cases. And of those 208 cases, 193 were appeals from summary disposition motions.

But just because Kreiner turned the no-fault world on its head, doesn’t mean Michigan personal injury attorneys have to pack up and call it a day.

Plaintiff’s lawyers in Adams made the mistake that many others have — focusing on the plaintiff’s pain and not impairment. Instead, to successfully handle serious impairment auto cases, the focus must be on meeting Kreiner’s criteria.

Documenting injuries and impairments over time is the key to plugging potential holes before they become dangerous problems. Auto lawyers in Michigan should consider having clients undergo independent medical examinations and functional capacity testing to document impairments.

Another strategy is having clients’ medical examiners match up results, where possible, with Kreiner’s serious impairment criteria.

These steps allow plaintiff attorney’s to beat defense summary disposition motions, and also help drive up the settlement value of cases by making impairments “real” for juries and insurance companies.

There are more tips on increasing the settlement value of serious impairment threshold in my article, “Understanding Kreiner v. Fischer and its Impact on How Michigan Lawyers Must Handle Auto Accident Cases.”

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