MEMORANDUM

TO: Senior Partner

FROM: 89670

RE: Ms. Mary Smith

Auto accident with injury to wrist

DATE: July 10, 2007

QUESTIONS PRESENTED

I. Can our client show that she has an objectively manifested injury, as required to

satisfy the definition of a serious impairment of body function under the no-

fault automobile provision of Michigan, when her primary care physician is

unable to find evidence of any broken bones or torn cartilage?

II. Can our client show that her injury has affected her ability to lead her normal

life, as required to satisfy the definition of a serious impairment of body

function under the no-fault provision of Michigan, when she is not able to quilt

and, when she is not able to cook her own meals and, when she is not able to

perform her yard work and, when she is unable to drive her car?

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III. Can our client recover her automobile insurance deductible, under the no-fault

automobile provision of Michigan, when her car was struck by Mr. Doe and,

when her deductible is Five Hundred Dollars?

BRIEF ANSWERS

I. No. To satisfy the requirement of an objectively manifested injury the injury

must be identifiable by either medical test or it must be visually apparent. The

courts have ruled that subjective complaints of pain do not make an injury

identifiable. Because our client’s primary care physician can not find evidence

of her injury other then her subjective complaints of pain; our client would not

meet the requirement of an objectively manifested injury.

II. Yes. The Michigan no-fault automobile provision allows an injured party to

recover if they can prove that their injury affected their general ability to lead a

normal life. Our client’s injury has caused many changes to her lifestyle, which

has had an affect on her ability to lead a normal life.

III. Yes. The Michigan no-fault automobile provision allows a plaintiff to

recovery for damages that are not covered by automobile insurance, provided

that the plaintiff was not found to be more than fifty percent at fault and the

deductible is five hundred dollars or less. Since the statute is very clear and

concise, and our client meets the requirements of this statute we should not have

any problems in recovering her insurance deductible.

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 STATEMENT OF FACTS

Ms. Smith, a retired seventy-eight year old female, was involved in a two car

motor vehicle accident. Her car was struck from the side by a truck driven by Mr. Doe.

Our client’s car suffered minor damage, which her insurance has covered, except for a

five hundred dollar deductible. Ms. Smith has had some lingering physical effects from

the accident, which has caused her to suffer pain in her right wrist. Because of this pain

she has not been able to return to her normal activities and now requires assistance to

function. Her primary care physician has found no evidence of broken bones or cartilage

damage and attributes the pain to her age and a preexisting condition of arthritis.

APPLICABLE STATUTES

Mich. Comp. Laws Ann. §500.3135(2)(c). (LexisNexis, 2007)

(1) A person remains subject to tort liability for noneconomic loss caused by his or her

ownership, maintenance, or use of a motor vehicle only if the injured person has suffered

death, serious impairment of body function, or permanent serious disfigurement.

Mich. Comp. Laws Ann. §500.3135(3)(e) (LexisNexis, 2007)

(3) Notwithstanding any other provision of law, tort liability arising from the ownership,

maintenance, or use within this state of a motor vehicle with respect to which the security

required by section 3101 was in effect is abolished except as to:

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(e) Damages up to $500.00 to motor vehicles, to the extent that the damages are not

covered by insurance. An action for damages pursuant to this subdivision shall be

conducted in compliance with subsection (4)

Mich. Comp. Laws Ann. §500.3135(4)(a) (LexisNexis, 2007)

(4) In an action for damages pursuant to subsection (3)(e):

(a) Damages shall be assessed on the basis of comparative fault, except that damages

shall not be assessed in favor of a party who is more than 50% at fault

DISCUSSION

I. Can our client show that she has an objectively manifested injury, as
required to satisfy the definition of serious impairment of body function under
the no-fault automobile provision of Michigan, when her doctor is not able to
find evidence of broken bones or torn cartilage?

The Michigan no-fault automobile provision allows an injured person to recover

economic compensation from their insurance company regardless of who caused the

accident. What this means is that a party who has been injured in an auto accident would

seek recovery from their own insurance company instead of seeking recovery from the

other driver. This statute has essentially abolished tort liability in auto accident except in

cases where a party is seeking recovery for death, serious injury, or permanent

disfigurement. In addition the court also allows a party to seek reimbursement for

damages to a vehicle not covered by insurance. Under the Michigan no-fault automobile

provision our client has two different claims she can pursue. The first claim our client

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could make is for the serious impairment of body function as allowed by Mich. Comp.

Laws Ann. §500.3135(2)(c). To recover for serious impairment of body function you

must meet three different elements. The first element, an objectively manifested injury

will be discussed below. The second element required is that the plaintiff must have had

an injury to an important body function. This issue is not in dispute, as the court has

viewed that injury to an arm or leg qualifies as an injury that is an important body

function. See Welch v. Yuhl, 2006 WL 1008678 (Mich.App. April 18, 2006). The third

element, the inability to lead a normal life will be discussed under issue two. The second

claim that is available for our client is she could seek reimbursement to cover damages to

her automobile that were not covered by insurance as allowed by Mich. Comp. Laws

Ann. §500.3135(3)(e) and Mich. Comp. Laws Ann. §500.3135(4)(a). This topic will be

discussed under issue three

To prove an objectively manifested injury, the injury must be detectable by

qualified medical personnel (like a doctor or specialist) using either visual recognition of

the injury or medical tests (like x-rays or magnetic resonance imaging). Our client has

suffered injury to her right wrist and has seen her primary care physician about the injury.

While her primary care physician can not find evidence of broken bones or torn cartilage

he has stated that our client is in pain when she attempts to use her right hand.

An injury must be identifiable to meet the standard of an objectively manifested

injury. In the case of Jackson v. Nelson, 252 Mich.App. 643, 654 N.W.2d 604 (2002),

the court had to decide if jury instructions, which stated that a medically identifiable

injury could be verified by a third person, were correct. The court said the jury

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instructions were incorrect and then reaffirmed the courts view that “for an impairment to

be objectively manifested there must be a medically identifiable injury or condition that

has a physical basis.” Id. at 653, 654 N.W.2d at 610. The court relied on judicial

precedent, which defined the term objectively manifested injury and gave instructions

how to determine if an injury meets this standard.

For soft tissue injuries to be considered an objectively manifested injury the

injury must capable of objective verification. In the case of Netter v. Bowman, 272

Mich.App. 289, 725 N.W.2d 353 (2006), a pregnant woman was involved in an

automobile accident, which caused her to prematurely go into labor and injured her neck

and back. She claimed that these injuries satisfied the requirement for an objectively

manifested injury. While the court ruled against the plaintiff, they did say that her soft

tissue injuries could have qualified as an objectively manifested injury if they had been

subject to medical testing such as x-rays, electromyography tests, or magnetic resonance

imaging. The court said that to meet the requirement of objectively manifested injury

there must be an injury or condition that is identifiable and has a physical basis. The

court relied on its definition of objective verification to make this ruling. The court said

that, “the current meaning of ‘objectively manifested’-whether described as ‘medically

measurable,’ ‘medically identifiable,’ or ‘medically documented’-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.” Id. at 305, 725 N.W.2d at 362.

Subjective complaints of injury do not meet the requirement of an objectively

manifested injury. In Kreiner v. Fischer, 471 Mich. 109, 683 N.W.2d 611, (2004) the

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courts looked at to see if the plaintiffs injury met the standard of serious impairment of

body function. The plaintiff was injured in an automobile accident and had injuries to his

lower back, right hip, and right leg. When his doctor conducted an electromyography test

the test confirmed a nerve irritation to his fourth lumbar disk. They court said that this

injury qualified as objectively manifested injury because it was detectable by an

electromyograph. However, if there had been no medical proof of this injury the

plaintiff’s complaint of pain would have not satisfied the standard of an objectively

manifested injury. The court relied on their prior rulings which have said, “Subjective

complaints that are not medically documented are insufficient.” Id. at 132, 683 N.W.2d at

625.

The consensus of the court is that to have collectable injury, you must meet the

standard of an objectively manifested injury. All injuries, including soft tissue injuries,

must be identifiable by qualified medical personnel by either using sight or medical tests.

Furthermore, subjective complaints of injuries, which may be genuine; do not qualify as

an objectively manifested injury. Applying this to our client’s case, it does not appear

that her injury would qualify as an objectively manifested injury. Her doctor is not able to

identify the reason of her pain by medical test and her injury can not be identified using a

visual test. The only proof of her pain is the reluctance to use her right hand and her

subjective complaints of pain. Using the information we have at this time, I do not feel

our client would meet the standard for an objective manifested injury. However, I would

recommend that our client be seen by a specialist for further testing to ensure that the

diagnosis of her primary care doctor is correct.

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 II. Can our client show that her injury has affected her ability to lead her normal
life, as required to satisfy the definition of serious impairment of body
function under the no-fault provision of Michigan, when she is not able to
quilt and, when she is not able to cook her own meals, and when she is not
able to care for her own yard and, when she is unable to drive her car?

To collect for a serious impairment of body function you must show that this

injury has had an affect on their ability to lead a normal life. The client has had a drastic

change in her life style and now requires help to perform many daily functions, such as

cooking and the opening her medication bottles.

To decide if a serious impairment has affected the ability of a plaintiff to lead a

normal life the court must objectively look at the plaintiff’s lifestyle before and after the

accident and decide if the course of that person’s life has been affected. In Kreiner v.

Fischer, 471 Mich. 109, 683 N.W.2d 611, (2004), the plaintiff had injured his lower

back, right hip, and right leg, and expressed some limitations in his daily activity. The

court said that this injury did not affect the plaintiff’s ability to lead a normal life. The

court relied on the fact that the plaintiff was still able perform his job as a carpenter, and

his injuries did not cause him to miss a day of work. The court went on to say that while

the plaintiff has experienced some limitations in the amount of hours he can work or the

length of time he can spend on a ladder he is still generally able to lead his normal life,

and his post-accident life is not much different from his pre-accident life, therefore, the

course of his life was not affected.

Physician-imposed restrictions based upon pain and self-imposed restrictions not

based upon pain can be used to qualify an injury as a residual impairment. In McDanield

v. Hemker, 268 Mich.App. 269, 707 N.W.2d 211, (2005), the plaintiff, who was in an

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automobile accident, suffered injury to the cervical area of her spinal cord. This injury

was the source of the considerable amounts of pain and had caused the plaintiff to limit

her gardening and cleaning activities, as well as caused interference in her sleeping

patterns. The plaintiff’s doctor told the patient to limit her activity to what she could

handle. The court said that if the plaintiff has physician-imposed restrictions based upon

the plaintiff’s pain level that it meets the requirement of a residual impairment. The court

also said that self-imposed restrictions that are not based upon pain may also be

considered. The court explained that if the plaintiff restricts an activity because they are

physically unable perform an activity, this restriction should be considered in deciding a

residual impairment. The court relied on the language from Kreiner, which said that the

court must look at the total impact of the injury on a plaintiff’s life, not just a single

factor to decide if there has been an impact on a person’s ability to life their life.

One factor the courts considered in deciding if there had been an impact in the

person’s life is the amount of work the plaintiff had been able to perform pre-injury

versus post-injury. The next case looks at what factors the courts consider when the

person claiming an injury is retired.

In deciding if a plaintiff, who is retired, has had their ability to live a normal life

affected by an injury, the court will look at the impact the injury has had on plaintiff’s

ability to perform household chores and recreational activities In Booker v. Beck, 2006

WL 1290493 (Mich.App. May 11, 2006), the plaintiff, a sixty-six year old retired man,

was injured in an auto accident. The plaintiff suffered from persistent pain to his neck

and shoulder area which prevented him from mowing his grass and from taking part in

recreational activities such as golf. However, the plaintiff was still able to drive his car

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and cook his own meals. The court said that the limitations the plaintiff experienced

were not sufficient enough to prove that there had been change in his ability to lead his

normal life. The court relied on the facts that the plaintiff was still able to exercise, attend

school functions with his grandchildren, and was no longer taking any type of pain

medication.

A preexisting condition does not relieve a defendant from liability, if the auto

accident results in aggravating the preexisting condition. In Wilkinson v. Lee, 463 Mich.

388, 617 N.W.2d 305 (2000), the court looked at the issue of preexisting conditions. The

plaintiff brought an action to recover for damages that were caused by the aggregation of

an undiagnosed brain tumor. The defense argued that this injury was preexisting and the

auto accident did not cause the brain tumor to grow or cause it to increase in size. The

court said “regardless of the preexisting condition, recovery is allowed if the trauma

caused by the accident triggered symptoms from that condition.” Id. at 395, 617 N.W.2d

at 309. The court relied on the theory that a person who causes an accident must take the

victim as they find them; just because a person is susceptible to a certain type of injury

does not relieve a person from their responsibility.

The synthesis of these cases gives you an idea about what the state requires to

show that a plaintiff’s life has been affected. The court looks at several factors to decide

in the injury has had an affect on the plaintiffs life. One such factor the court considerer is

the plaintiff’s life before the and after the accident. The court will look at all aspects of

the plaintiffs life such as type of work performed and recreational activity that the

plaintiffs engaged in. After gathering a complete picture of the plaintiff’s pre-accident

life the court will then compare these factors with the plaintiff’s life after the accident.

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 The courts have also held that for any type of restrictions to be considered as a

type of residual impairment the restriction must be because the patient is physically

unable to perform the activity or because the physician has ordered the plaintiff to avoid

such activity. In addition the court has said that aggravation of a preexisting injury does

not relive the defendant from liability. Applying these requirements to our case it looks

like our client would be able to prove that her injury has had an affect on her ability to

lead a normal life. Looking at her pre-accident life style our client was able to perform

many activities such as cooking, cleaning, and yard work. Due to the injury from the

auto accident, our client is now unable to cook her own meals, drive her car, or attend her

sewing circle. She also needs assistance in opening medicine bottles. The accident has

had a major change in the victim’s life; she has gone from an independent woman to a

one who needs assistance in fulfilling the most basic of needs. It is for these reasons I

believe that our client could prove that this injury has had an impact on her ability to lead

a normal life.

III. Can our client recover automobile insurance deductible, under the no-fault
automobile provision of Michigan, when her car was struck by Mr. Doe, and
when her deductible is Five Hundred Dollars?

Our client’s insurance company has paid for the damage to her automobile caused by Mr.

Smith. However, there is a five hundred dollar deductible that our client would like to

recover. The State of Michigan’s no-fault automobile provision allows for the recovery

of up to five hundred dollars for damage not covered by insurance companies.

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See Mich. Comp. Laws Ann. §500.3135(3)(e) and Mich. Comp. Laws Ann. §500.3135(4)

(a). The statute requires that the plaintiff can be no more than fifty percent at fault, and

the amount of the deductible be no more than five hundred dollars

The driver of the automobile that struck our client was cited by the police for

failure to stop, which means he was found responsible for the auto accident. In addition,

our client’s automobile insurance deductible is five hundred dollars. Given that the

language in the statute is clear and indisputable, the court will enforce that statute as

written. Therefore, our client will be able to recover five hundred dollars which she can

use to cover her insurance deductible.

CONCLUSION

I am happy to report that we should not experience any difficulty in recovering

the five hundred dollar insurance deductible. The defendant was found at fault and our

client’s deductible is under the maximum amount recoverable. Therefore, we should

proceed in bringing a claim for the recovery of our client’s five hundred dollar insurance

deductible. In regards to the claim for a serious impairment of body function, there has

been a drastic change between our client’s her pre-accident and post-accident life, and her

injury has changed many aspects of the way she lives her daily life. As a result, I believe

we could meet the standard of showing that the accident has affected her ability to live

her normal life.

However, I am concerned that we may not be able to present her injury as one that

is objectively manifested. Her primary care physician has stated that he can not find any

type of broken bones or torn cartilage but feels that our client is in pain. While some may

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consider that this doctor’s statement could be enough evidence to prove an objectively

manifested injury, I think relying on the vague diagnosis of a primary care physician to

prove an objectively manifested injury is risky. I would suggest that our client seek a

specialist to examine and perhaps verify her injury by some type of medical testing

before we attempt to collect for a serious impairment of body function.

Because we are not able to meet all of the requirements to prove a serious

impairment of bodily function, I recommend that we proceed with the claim for the

insurance deductible and wait until we gather more information about our client’s injury

to her right wrist before we proceed with the claim for serious impairment of bodily

function.

Respectfully Submitted

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