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Auto accident victim’s PTSD claim not a Serious Impairment of Body Function, court rules

May 30, 2013 by Steven M. Gursten

What lawyers representing auto accident victims with PTSD injuries need to know now after Overweg v. Thomas

car accident PTSD not serious impairment

I was  interviewed last week by Michigan Lawyers Weekly on  Michigan Court of Appeals case, Overweg v. Thomas. In Overweg, the Court of Appeals ruled that the victim’s post traumatic stress disorder (PTSD) claim failed to qualify under Michigan’s tough auto accident threshold law, and was not a serious impairment of body function.

A woman who watched her husband die in her arms, and who suffered disabling post traumatic stress disorder as a result, was turned away from our Courts. She received nothing in the way of compensation for her serious emotional injuries.

Overweg is a terrible case for several reasons. It shows the absurdity of Michigan’s auto accident injury threshold law.  Mrs. Overweg would have had a very legitimate and compensable claim in 49 other states.  But because the plaintiff failed to show that PTSD was objectively manifested, she lost the right to collect any money for her injury and pain and suffering after watching her husband die.

One key point I made that the reporter left out was that PTSD can be objectively manifested.  PTSD has been shown  to shrink the hippocampus in the  brain.  A PET scan for this  “purely emotional injury claim” could have shown that the PTSD was in fact  objectively  manifested. Neuropsychological testing has also been found to be valid and reliable testing, and that also may have qualified the injury under the objective manifestation requirement.

Even the most politically motivated, outcome-determined panel of the Michigan Court of Appeals would then concede that the brain is an important body function, and thus the plaintiff in Overweg would have satisfied the first and second prong of Michigan’s auto accident threshold law:

  1. That the impairment be objectively manifested.
  2. And that it effect an important body function.

Overweg v. Thomas was an unusual case because the wife was driving in a separate car, and came over to her husband’s car after crash.  In most cases, PTSD is not so clean and severable from a brain injury, and thus the emotional injuries and subsequent impairments that Mrs. Overweg suffered would/should have qualified under our threshold law according to the the closed head injury exception.

The case also highlights the absurd and artificial legal distinction of Michigan’s auto injury threshold law. In real life, the brain-body connection is commonly understood. Only Michigan law separates injuries between  brain only and body that exist under our third party law. But an injury to the brain effects the body, and an injury to the body effects the brain.

Tip for lawyers:
Emotional injuries almost always are traumatic brain injuries as well.  For example, if the PTSD causes the hippocampal region of the brain to shrink, then by definition the brain has suffered organic injury. It is  by definition a traumatic brain injury (TBI).

For lawyers representing auto accident victims, carefully evaluate whether your claim is  more than PTSD alone. Any PTSD claim that causes actual injury to the brain and subsequent brain damage that can be documented through the hippocampus area shrinking is a brain injury that falls under the the closed head injury exception.

This case is very dangerous for two reasons:

1. Court revived the previously laid to rest “physicians-imposed restrictions” language  from the Kreiner v. Fischer era.  As I pointed out in the Michigan Lawyers Weekly story, this entire judicially-created requirement (as it is entirely absent in the plain statutory definition of serious impairment of body function, and was created out of thin air by the activist majority who wrote the Kreiner opinion) is a legal fiction.

I’ve been a lawyer for nearly 20 years, handling car accident cases. Doctors do not routinely write restrictions unless they are asked. Most won’t do it unless they absolutely have to, as it is time-consuming and they don’t get paid for writing them.  It is the stuff of legal fiction and fantasy, created as an additional judicially-created obstacle to legal recovery for auto accident victims by the four court majority in Kreiner v. Fischer.

Kreiner v. Fischer was overturned by McCormick v. Carrier. The physician-imposed restriction language from Kreiner was expressly overruled as judicial overreach.  It is dead.  It should not have been revived to be used by the appellate court in Overweg.

2. The underlying rationale of Overweg doesn’t just apply to PTSD but potentially threatens any case with a serious injury that cannot be easily manifested.  Thus tinnitus (ringing in the ears – also known as the suicide injury) post-traumatic headaches, many RSD cases, and about a half dozen others that I can think of now that cannot  be easily objectively manifested, even though these are all very horrible injuries, would all also fail under the (arguable) logic of Overweg v Thomas.

Overweg v. Thomas

Frances Overweg was driving in separate car behind her husband, and watched as a third vehicle crashed into his car. She found him pinned under debris and she was unable to free him. Mrs. Overweg continued to watch as first responders unsuccessfully attempted CPR.

In her lawsuit seeking compensation,  the defense lawyer argued that Mrs. Overweg’s PTSD and emotional injuries  were not an objectively manifested impairment of a body function. Mrs. Overweg’s lawyer argued that PTSD satisfies the No-Fault threshold of MCL 500.3135, because it’s a severe mental disturbance that caused her actual physical harm and her injury was a serious impairment of a body function that affected her ability to lead her normal life.

According to medical testimony, Mrs. Overweg suffered from sleep deprivation, flashbacks, nightmares, heightened anxiety, loss of appetite, being easily startled and decreased activity.

The Court of Appeals concluded that Overweg failed to establish that a particular body function had been affected by PTSD.

As I told Michigan Lawyers Weekly, “This case exemplifies what is wrong with the Michigan automobile accident threshold. The decision is a good example of where the law really fails. PTSD causes very real chemical and organic changes to the brain, which can be viewed in objective tests. For the majority to say that the impact of PTSD on the brain is not an objectively manifested impairment of a body function is absurd.”

Here’s the full story in Michigan Lawyers Weekly: Plaintiff’s PTSD not covered by No-Fault

Post traumatic stress disorder and its symptoms

Post-traumatic stress disorder (PTSD) is a life-disrupting anxiety disorder.  It can be very severe.  PTSD is  triggered by experiencing or witnessing a traumatic event, such as a serious car accident wreck or injury, that causes intense fear, helplessness or horror.

PTSD symptoms, which could appear immediately or within months or even years of the traumatic event, according to the Mayo Clinic, include:

  • Flashbacks, or reliving the traumatic event.
  • Nightmares about the traumatic event.
  • Trying to avoid thinking or talking about the traumatic event.
  • Feeling emotionally numb.
  • Avoiding activities you once enjoyed.
  • Hopelessness about the future.
  • Memory problems.
  • Trouble concentrating.
  • Difficulty maintaining close relationships.
  • Irritability or anger.
  • Overwhelming guilt or shame.
  • Self-destructive behavior, such as drinking too much.
  • Trouble sleeping.
  • Being easily startled or frightened.
  • Hearing or seeing things that aren’t there.

Symptoms may be triggered or worsen when reminded in any way of the traumatic event.

Car accidents and other extreme or life-threatening events are the type of traumatic events that can trigger PTSD.

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