Review of Current Issues in Michigan Pip Claims and Third-Party No-Fault Tort Threshold

Michigan's Third-Party No-Fault Tory Threshold:

"Serious Impairment Of Body Function"

1.      "Serious Impairment of Body Function" means an objectively manifested impairment of an important body function that affects the person's general ability to lead his or normal life.  MCLA 500.3135(7).
   
   1.    Serious Impairment of Body Function:  a three-prong prerequisite.
      
      1. Objectively Manifested Impairment; and
      2. Important Body Function; and
      3. Affect Plaintiff's general ability to lead his/her normal life.  (A subjective analysis.)
   2.    Objectively Manifested Impairment equals medically identifiable injury or condition that has a physical basis.  (M Civ JI 36.11.)
      

      Jackson v Nelson, 252 Mich App 643, 654 NW2d 604; lv to app den 661 NW2d 232 (Mich 2003).  In Jackson, the Court of Appeals reversed judgment in favor of Plaintiff following a jury trial where the Trial Court refused to give the entire jury instruction M Civ JI 36.11 because the Trial Court disagreed that the third paragraph of the jury instruction (defining Objectively Manifested) correctly reflected the law.  In reversing the verdict for Plaintiff as a result of the Trial Court's failing to give proper jury instruction, the Jackson Court specifically held that M Civ JI 36.11 in its entirety, and particularly the third paragraph defining Objectively Manifested to be a medically identifiable injury or condition that has a physical basis, accurately reflected the statutory definition of "Objectively Manifested Impairment" when read in context (case law) and considering the intent of the Legislature with the amendments (1995). 

      May v Sommerfield, 240 Mich App 504, 617 NW2d 920 (2000).  In May, the Court of Appeals held that [subjective] complaints of pain alone are insufficient to meet the Objective Manifestation of injury prong for the test of a Serious Impairment of Body Function.  See also Corder v Lucero, Michigan Court of Appeals Docket No. 231656, decided July 30, 2002 - Unpublished. 

      Washington v Reynolds, Michigan Court of Appeals Docket No. 237537, February 18, 2003 - Unpublished. In Washington, Defendant allegedly failed to stop for a traffic light and struck Plaintiff's vehicle.  Plaintiff complained of severe/permanent injuries to "ribs, back, shoulders, neck, back and spine..."  Discovery revealed no medical records or opinion containing objective evidence of Plaintiff's claimed injuries.  Defendant filed a Motion for Summary Disposition contending Plaintiff's injuries did not constitute a Serious Impairment of Body Function which was granted.  The Court of Appeals affirmed summary disposition for Defendant finding (as did the Trial Court) that none of the evidence in the Lower Court record demonstrates a "medically identifiable injury".  Indeed, Plaintiff's physicians' diagnoses of back strains/sprains were based solely upon Plaintiff's complaints of pain and tenderness which the Court recognized as constituting subjective rather than objective manifestations of an injury. 

   3.    Important Body Function - Objective Standard
      
      1. As yet, no all encompassing definition of phrase.  Decisions on a case by case basis.
         

         Cassidy v McGovern, 415 Mich 483, 330 NW2d 22 (1982); Kern v Blethen-Coluni, 240 Mich App 333, 612 NW2d 838 (2000) - walking an Important Body Function.

         LaHousse v Hess, 125 Mich App 14 (1983) - fractured femur is Important Body Function.

         Kreiner v Fischer, 215 Mich App 513, 651 NW2d 433 (2002) - movement of one's back is an Important Body Function.

         Range v Gorosh, 140 Mich App 712 (1984) - fractured ribs impeding normal respiration constitute Important Body Function.

   4.    Affect Plaintiff's general ability to lead his/her normal life - a subjective analysis.
      
      1. Focus is "lifestyle effect" - a clearly subjective standard.
      2. If Plaintiff satisfies Objectively Manifested Impairment prong and Important Body Function prong, Plaintiff's testimony alone may be sufficient to create question of fact that his/her general ability to lead a normal life has been affected and, in turn, create question of fact as to whether Plaintiff's injuries constitute Serious Impairment of Body Function.
         

         May v Sommerfield, 239 Mich App 197, 607 NW2d 422 (2000).  On Motion for Summary Disposition, the Trial Court is required to make appropriate findings concerning whether there is a factual dispute with respect to each of three requisite prongs for the Serious Impairment of Body Function threshold (1. Objectively Manifested Impairment; 2. an Important Body Function; and 3. that affects Plaintiff's general ability to lead his/her normal life). 

         Miller v Purcell, 246 Mich App 244, 631 NW2d 760 (2001).  Plaintiff suffered an acromioclavicular separation as well as mild tendonitis in a motor vehicle accident.  The Court of Appeals reversed summary disposition for Plaintiff finding that Plaintiff's injuries failed to meet the Serious Impairment threshold and that the injuries did not affect her general ability to lead her normal life.  Plaintiff admitted she was able to perform the same activities that she did before the accident, albeit with some restrictions.  She specifically admitted to being able to work a 40-hour week but having to type one-handed at times.  She further claims she was unable to knit.  The Court of Appeals held "the record is clear that her general ability to lead her normal life has not been significantly altered by her injuries, reversing the Trial Court and entering summary disposition for Defendant. 

         Spies v Parker, Michigan Court of Appeals Docket No. 227581, released June 25, 2002 - Unpublished.  Plaintiff appealed a jury verdict of no cause of action where the jury found Defendant negligent but that Plaintiff's injuries did not meet the no-fault threshold for recovery.  Plaintiff argued in his appeal that the Trial Court erred in failing to decide the threshold issue as a matter of law.  The Court of Appeals affirmed the denial of Directed Verdict for Plaintiff and the jury verdict for Defendant finding that while Plaintiff suffered an Objectively Manifested Impairment of an Important Body Function (wrist fracture requiring two open reduction, internal fixations), the injury did not affect Plaintiff's general ability to lead his normal life.  Plaintiff missed only several weeks of school while taking narcotic pain medication.  He suffered from some residual impairment, specifically a 7-15 degree loss of pronation in the left arm.  The Court of Appeals held that Plaintiff's injuries did not affect his general ability to lead his normal life and, consequently, he did not suffer a Serious Impairment of Body Function. 

         Reekwald v L.E. Best Transportation, Inc., Michigan Court of Appeals Docket No. 236802, decided November 26, 2002 - Unpublished.  In Reekwald, the Trial Court granted Defendant's Motion for Summary Disposition finding Plaintiff's injuries did not constitute a Serious Impairment of Body Function which was affirmed on appeal.  The Court of Appeals' Opinion recognized the Trial Court assumed Plaintiff had suffered an Objectively Manifested Injury that impaired an Important Body Function but found that the injury did not affect Plaintiff's ability to lead his normal life.  Plaintiff did not undergo extensive medical treatment and continued to work full-time, missing only two days of work.  He had some minor limitations in using his left hand and stopped playing golf for a time.  Despite some pain and occasional headaches, Plaintiff had since resumed his normal activities, albeit to a lesser extent than previously.  The Court of Appeals held that reasonable minds could not differ in concluding that Plaintiff's injuries did not affect his general ability to lead his normal life. 

         May v Sommerfield, supra.  The Trial Court can properly compare Plaintiff's lifestyle before and after the accident in determining whether a factual dispute existed with respect to the extent of Plaintiff's injuries (i.e. whether the injuries affect Plaintiff's ability to lead his/her normal life).

         White v Wier, Michigan Court of Appeals Docket No. 236000, released February 21, 2003 - Unpublished.  Plaintiff White sustained soft tissue injuries and an oblique nondisplaced fracture of her sternum in this motor vehicle accident.  The Trial Court granted Defendant's Motion for Summary Disposition finding Plaintiff's injuries did not meet the no-fault tort threshold.  Plaintiff appealed.  The Court of Appeals reversed concluding that the Trial Court erred in finding no genuine factual dispute regarding Plaintiff's sternum fracture was an Impairment of an Important Body Function and significantly affected her general ability to lead her normal life.  In reversing the Trial Court's grant of summary disposition for Defendant, the Court of Appeals relied heavily upon the Plaintiff's Affidavit describing her post accident limitations in her lifestyle and work.  Most of Plaintiff's claimed range of motion restrictions and work limitations resolved within a year of the subject accident.  However, the Court of Appeals recognized that they created a question of fact regarding whether the Objectively Manifested Impairment affected Plaintiff's general ability to lead her normal life.  Further, the Court of Appeals recognized that an injury need not be permanent to be Serious as announced in Cassidy v McGovern and Kern v Blethen-Coluni. 

2.   The "Closed Head Exception":  MCLA 500.3135(2)(A)(ii):  A special "Jury Trial Provision" for closed head injury claims constituting a Serious Impairment of Body Function.
   
   1.    MCLA 500.3135(2)(A)(ii) states in pertinent part relative to this special provision for closed head injuries as follows:
      

      "...However, for a closed head injury, a question of fact for the jury is created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed head injuries testifies under oath that there may be a serious neurological injury."

      1. Churchman v Rickerson, 240 Mich App 223, 611 NW2d 333 (2000), stated (arguably in dicta) that the aforementioned language does not indicate that the closed head injury exception provides the exclusive manner in which a Plaintiff who has suffered a closed head injury may establish a factual dispute precluding summary disposition. 
      2. Churchman is lone published Court of Appeals Opinion interpreting the closed head exception and arguably wrong.
   2. Special Jury Trial Provision for closed head injuries arguably requires testimony of license allopathic or osteopathic physician [who regularly diagnoses or treats closed head injuries] testifying that a serious neurologic injury was sustained.  Any other interpretation renders this subsection of the statute superfluous, contrary to classic statutory construction rules.
      
      1. Defense counsel to pursue reversal of Churchman in current pending appeal (Nelson v Orion Air Express).
3.      Analyzing Mild Head Trauma Claims.
   1.    As a general proposition, traumatic brain injury (TBI) does not occur in the absence of loss of consciousness or, at least, loss of conscious awareness/altered consciousness.  Where no direct trauma but claimed TBI as a result of acceleration/deceleration event (i.e. whiplash) look for one of the following to be reported at accident scene:  1) loss of consciousness; 2) post traumatic amnesia; 3) altered state of consciousness.
   2.    Quantify force (i.e. traumatic event) allegedly causing Plaintiff's traumatic brain injury.
      
      1.   

         Event --»	Diffuse Actional --»	Loss of	= TBI
         	Injury	Consciousness
         		Post Traumatic
         		Amnesia

      2. Forces necessary to cause diffuse actional injury have been quantified.
   3.    Neuropsychological testing.
      
      1. If neuropsychological test (purportedly) indicates diffuse brain damage, must explain how diffuse brain damage selectively damaged only certain functions.
      2. Mild brain injury generally not produce sensory/ motor deficits.
      3. Memory and information processing speed generally most susceptible to traumatic brain injury.
      4. Mild Head Trauma article:  Sheldon Margulies