MI Court rules shoulder, neck and back pain could be an “objectively manifested impairment” under Michigan’s auto injury threshold law
The objective manifestation prong of Michigan’s auto accident threshold law has caused quite a bit of confusion over the years with lawyers and judges – and frustration for car accident victims with neck and back pain.
But it shouldn’t. The requirements to qualify under our auto law for an “objectively manifested impairment” are clear. And car accident injury victims suffering from neck and back pain in Michigan already have a hard enough time getting justice from insurance companies without some judges getting the law wrong.
The Michigan Supreme Court clearly defined what is required in 2010 in McCormick v. Carrier.
Before McCormick, many judges were wrongly requiring objective proof of injuries. The problem is that many injuries that can be devastating – such as tinnitus – aren’t capable of being neatly shown via objective medical diagnostic testing.
McCormick put the kibosh on this.
Yet, inexplicably, despite McCormick’s clear statement of what the law is and what it requires to show an objectively manifested impairment under Michigan’s auto accident law, this misstatement – and misapplication – of our law has persisted.
It also seems not a coincidence that the judges who are making many of these mistakes are so-called conservative judges who “claim” to give great deference to the plain meaning of the clear and unambiguous definition of serious impairment of body function but are instead substituting their own definition of objectively manifested as a docket-clearing mechanism to dismiss auto accident injury cases.
Most recently – and lets now call this exactly what it is – this judicial activist, extra-textual, judge-made “injury” formulation of the “objectively manifested impairment” reared its ugly head in the Michigan Court of Appeals horrendous ruling in Zichichi v. Mull – which was made possible by Wayne County Judge Susan Hubbard’s erroneous misstatement of the law.
In my blog post, “Zichichi v. Mull is worst example of ‘Judge made law,’ sows confusion for car accident attorneys and judges,” I analyzed the Zichichi ruling, expressing what frankly most judges and every personal injury attorneys in Michigan were thinking and talking about:
“Rather than following and applying the law as they are required to do, one Wayne County trial judge and three appellate judges in Zichichi v. Mull decided to make up their own law. To do this, they created a completely new “judge made law” to ignore and disregard what the Michigan Supreme Court said in McCormick v. Carrier [about the “objectively manifested impairment” requirement] so they could throw out a serious car accident injury lawsuit involving multiple fractures, a surgery, screws implanted into bone, and a closed head injury.”
Luckily, help is on the way.
Not more than a month after endorsing Hubbard’s personal reworking of the law, the Court of Appeals changed course in its May 8, 2018, ruling in Hollings v. Grange Insurance Company of Michigan, reversing Hubbard’s dismissal of the victim’s lawsuit based on her legally inaccurate, extra-textual conclusion that “there was no objective evidence that plaintiff had sustained any injuries in the accident.”
Thankfully, the court followed-up on Hollings with its May 17, 2018, ruling in Williams v. AAA, where the judges seemed to set the record straight once and for all – at long last vindicating the Supreme Court’s pronouncement in McCormick – by concluding:
- “An objectively manifested impairment is generally one that is ‘observable or perceivable from actual symptoms or conditions.’ … There must be evidence of ‘actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function.’ … The plaintiff may proffer evidence—generally, medical testimony—of a physical basis for the pain and suffering to demonstrate that the impairment is objectively manifested.”
- “Plaintiff argues that her neck, back, and shoulder pain constitutes an objectively manifested impairment. We agree … It is clear that the record includes evidence of medical findings establishing a question of fact as to whether plaintiff’s neck and back pain manifested itself in ways that were observable and documented by medical professionals … Rather than follow the factors set forth in McCormick, the trial court improperly made its own evaluation regarding the persuasiveness of plaintiff’s medical evidence related to her back and neck pain.”
The Williams ruling is a welcome further clarification. It will help to finally clear away a great deal of unnecessary (and heretofore unfounded) confusion about whether and how a car accident injury victim’s pain and injuries can satisfy the No-Fault threshold law’s “objectively manifested impairment” requirement.
How judges previously used the law to disregard victims’ claims of neck and back pain
Under Michigan’s No-Fault threshold law, a car accident victim can recover pain and suffering compensation only if he or she can prove she suffered “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.”
Before McCormick – but after the 2004 ruling in Kreiner v. Fischer – judges were actively and with impunity mangling the legal standard in the statute by choosing to substitute “injury” for “impairment” and, then, relying on their own judge-made law to throw deserving car crash victims out of court.
The most glaring and outrageous example of this was Judge Whitbeck’s make-it-up-as-you-go decision in 2006 in Netter v. Bowman, where he circumvented the statutory language by ruling:
“[W]e conclude that the current meaning of ‘objectively manifested’… requires that a plaintiff ‘s injury must be capable of objective verification by a qualified medical person either because the injury is visually apparent or because it is capable of detection through the use of medical testing.”
Thankfully, the Supreme Court in McCormick specifically rejected Whitbeck’s attempt at rewriting the statutory definition of our law as clearly and unambiguously worded by the Legislature:
“[T]he Court of Appeals decisions that have gone beyond the plain language of the statute and imposed an extra-textual ‘objectively manifested injury’ requirement, in clear contravention of Legislative intent [which required an “objectively manifested impairment”], are overruled to the extent that they are inconsistent with this opinion.”