This is part six of my series on tips for lawyers handling traumatic brain injury cases. In my experience, I’ve found the incredible irony underlying any TBI case is that the plaintiff — like any plaintiff in any personal injury case — must be likable, honest and credible for a jury to award a fair verdict. But, as we frequently experience with clients, it’s often the brain injury itself that makes a plaintiff somewhat unlikable.

This is a noble fight to make. But sometimes it’s an uphill battle. Just like a personal injury lawyer can explain the real facts underlying the “McDonalds coffee verdict” until he is blue in the face, those facts will never sink in with some people. Likewise, when helping brain injury victims, my own feeling is that brain injury or not, if the defense can successfully attack the credibility of a person in too many ways, the ship will usually sink. Keep in mind that behavioral symptoms of traumatic brain injury include decreased ability to initiate responses, verbal and physical aggression, agitation, shallow self-awareness, impulsiveness and social dis-inhibition. Mood disorders, personality changes, altered emotional control, depression and anxiety are also prevalent with traumatic brain injury from auto accidents.

Car accident attorneys may be well-served to look for a fair settlement on behalf of their brain injured clients.

It also bears emphasizing that many of these defense challenges are completely unfair and run contrary to the well-established medicine and science of traumatic brain injury.  For example, if a defense neuropsychologist finds poor motivation, she is not saying your client does not have a brain injury. She’s only saying that the test results, for whatever reason (chronic pain, fatigue, depression, or a conscious effort to perform badly and deceive the tester) are invalid. It is the defense lawyer who emphasizes malingering as but one of several legitimate alternative explanations.

Some “fleas” to be wary of in a TBI case include:

1.    A mild traumatic brain injury or psychiatric injury with no accompanying physical injuries and no loss of consciousness

2.    Poor grades and school performance beforehand

3.    Prior accidents, work injuries, assaults, lawsuits

4.    A diagnosis of malingering or exaggeration

5.    A plaintiff who is wearing a soft tissue cervical collar or sunglasses for weeks or months after the car accident or truck accident

6.    Low vehicle damage

7.    Damaging surveillance

8.    A long delay in the diagnosis or treatment of a brain injury

9.    Attorney referrals to medical doctors

10.   A criminal record, especially one involving theft, dishonesty or false statement

11.    Poor work history

12.    No lay witnesses, such as friends and family who can corroborate the injuries and no co-workers or  supervisors who can testify on your client’s behalf

13.    Failure to file or pay taxes

14.    Failure to pay child support or alimony

I say on my Web site that lawyers who represent victims of traumatic brain injury have a special obligation, because TBI can be utterly devastating, yet difficult to prove. Remember, traumatic brain injury law — and the automobile accident exceptions that exist under Michigan law — require very specialized knowledge. If you are an attorney and would like to refer a traumatic brain injury case, or if you have TBI from an auto accident, call (800) 777-0028 and we can help.

Meanwhile, my last blog in my series of tips for traumatic brain injury lawyers, “Why TBI matters,” is coming soon.

—  Steven M. Gursten is a member of the American Association for Justice Traumatic Brian Injury Group and lectures on TBI throughout the country. He was recently invited to become the first Michigan traumatic brain injury lawyer to serve on the legal committee for the Sarah Jane Brain Project. In 2008, Steve received a trial verdict of $5.65 million for a TBI victim; the largest reported auto negligence verdict in Michigan for the year, according to Michigan Lawyers Weekly.

— Photo courtesy of Creative Commons, by left-hand

Related information:

What is TBI?

TBI Victims Can Reach Jury

TBI Cases Destroyed in Federal Court

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, please refer to our law firm quick facts.

What is happening is essentially a conspiracy. Take Detroit for example, police have “unwritten orders” to avoid citing fault and issuing tickets against drivers employed by the city and Wayne County.  Then, when an accident victim’s lawyer gets the bus driver’s driving record and sees it is clean, the lawyer does not add additional legal counts such as negligent hiring, entrustment and supervision against the city/county for employing the unfit driver.

A friend of mine and a very good lawyer, Scott Goodwin, once ordered an “unedited” driving record in a Detroit bus accident case. The record came back “clean” — until Goodwin received the bus driver’s unedited record of 30 bus accidents that occurred over a few years. Yet this bus driver never received a ticket. This exposed the city`s failure to ticket their bus drivers, and assisted in getting a bunch of unfit Detroit bus drivers off the road.

But it isn’t just the cities getting away with this dishonest practice. Trucking companies are hiring top lawyers to go to traffic court and try to get tickets and truck accidents dismissed, and since most accident victims do not appear in traffic court to contest, they are becoming more and more successful.

The answer to this problem is clear: Lawyers should be ordering un-redacted driving records, especially when things don’t pass the smell test. Investigate previous truck accidents for truck drivers. Ask in depositions if they have been involved in other truck crashes that may not appear on their driving records. And run a search for accidents in other states.

Remember, many bus and truck drivers have caused serious accidents or have long driving records of violations in other states that may not appear on their Michigan driving records. That’s one reason they came to Michigan to work. Keep in mind Michigan does not have punitive damages, which allows this to happen.

Ultimately, the responsibility lies on us as lawyers to protect the public when cities, counties and trucking companies refuse to do so. That responsibility begins with aggressive discovery in bus accident and truck accident cases; and to keep digging and digging past what sometimes seems the obvious.  We owe it to our clients, and we owe it to every Michigan resident who is endangered on the road.

For more information about handling a truck accident case in Michigan, please visit my Truck Accident Lawyers Resource Center, which has an entire section devoted helping attorneys handling Michigan truck accident cases. It covers topics including legal discovery, black boxes, truck accident experts and finding all insurance after a truck accident. To speak with a truck accident lawyer directly, call (800) 777-0028.

- Steve Gursten is recognized as one of the nation’s top experts in serious truck accident injury cases. He is on the executive board of governors representing Michigan for the Association of Interstate Trucking Lawyers of America and is immediate past president of the American Association for Justice Truck Litigation Group. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the last seven years, including 2008, according to Michigan Lawyers Weekly.

- Photo Courtesy of Creative Commons, by Oran Viriyincy

Related information:

Michigan Truck Accident Statistics

Truck Driver Fatigue

Michigan’s Most Dangerous Intersections

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We are the largest law firm in the state exclusively specializing in truck accidents. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, please read our law firm quick facts.

How does a drunk driver, who is speeding and barrels into another car, injuring a child, face no civil consequences whatsoever for his actions?

It’s because of a law in Michigan; a law that most Michigan lawyers and judges feel is badly broken and needs fixing.  This law now shields drunk drivers who cause car and truck accidents and hurt people. And people who drink and drive now have civil immunity if they don’t injure their victims enough.

This stems from a 2004 Michigan Supreme Court decision called Kreiner v. Fischer. Kreiner establishes the medical precondition plaintiffs must meet before they can sue for non-economic damages in such a way that many people who suffer serious injuries have virtually zero rights. In Kreiner, the Court interpreted the Michigan No-Fault Law’s definition of “serious impairment of body function,” and said that an accident victim’s injuries must seriously affect his or her general ability to lead a normal life.  Cases since Kreiner have raised the bar higher each year; causing cases of people who have suffered fractures and surgeries, and who have missed months from work and school, to be thrown out of court.

These are cases like young Anthony Kelsey’s. On June 23, 2009, the Michigan Court of Appeals dismissed Anthony’s case, Wayne Cottrill v. Craig Kenneth Senter (No. 285216).  In Cottrill, Craig Senter was speeding with a blood alcohol level of .30, crossed the center lane, and struck a car carrying Anthony Kelsey, an eighth grader. Anthony’s family filed a civil lawsuit for his many personal injuries.

The Michigan Court of Appeals threw it out.

The Court held that Anthony’s injuries and impairments were not serious enough according to Kreiner, and that therefore, Senter was given immunity for the injuries he caused Anthony.  In other words, Senter, a drunk driver, gets civil immunity for getting behind the wheel intoxicated and Anthony, an innocent and badly injured victim, gets nothing.

Sadly, Michigan’s auto accident law has evolved (most lawyers and judges would say devolved) to protect drunk drivers like Senter. The public policy and message this sends to Michigan drivers could not be worse.

Senter’s disregard for others could have killed someone that day.  As it was, Anthony couldn’t walk for an entire month while he was recovering, and yet Senter walked away without any civil penalty. This is because we have lost our focus. In Michigan, the courts only focus on the victim. Yet drivers who cause these injuries - no matter how egregious the drivers’ choices and actions are before they get behind the wheel - are ignored.

We’ve lost our common sense. By focusing only on the accident victim, and not the perpetrator, the courts say that drunk drivers like Senter get immunity because Anthony was not “impaired enough.” We are continuinung to protect drunk drivers like Senter from civil lawsuits.  Will it take another accident, where he injures someone so badly or kills someone, to finally hold him accountable?

Imagine a rape case, where the law required exclusive focus on the victim, not the rapist. Imagine a rape case where the rapist may actually be let off the hook, escaping any penalty, if the rape victim is not found “traumatized” enough after the rape. How is Senter being given civil immunity from drunk driving and injuring Anthony any different? We give Senter immunity because his actions are not subject to judicial inquiry, only those of his victim.

Our Michigan auto accident law was not supposed to create results like this one. It was originally created to protect drivers from clearly “frivolous” and “de minimus” injuries; not to shield drunk drivers who cause serious injuries.

Contact your legislators.  Tell them you want this law changed so drunk drivers can be held accountable in court for the injuries they cause.

— Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008, according to Michigan Lawyers Weekly.

—    Photo courtesy of Creative Commons, by Steve Kallestad

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. If you have been in a car accident at the hands of a drunk driver, call (800) 777-0028 for a free consultation with an auto accident lawyer.

From left, Steven M. Gursten, Judge William J. Giovan and attorney Ed Stein

I received a comment yesterday from retired Chief Judge of Wayne County Circuit Court, William J. Giovan, after my letter on Johnson v. Wausau.

Judge Giovan is a true intellectual and has an excellent grasp of the rules of evidence.  In fact, I once invited him to speak to the Michigan Trial Lawyers Association on evidentiary issues car accident lawyers face in trial.  Judge Giovan also knew my grandfather, and on more than one occasion, has shared memories of him as a lawyer while we were in his chambers.  It isn’t every judge that knows and cares about three generations of one family.

I decided to publish Judge Giovan’s comments as a blog entry, because the points he makes are excellent, and I commend him on his legal analysis that the problem in Johnson needs to be corrected at the highest level. Hopefully, the Michigan Supreme Court will heed his advice. This is what the Judge wrote:

Steve-

I read your criticisms of the above case, and you’re correct about the effect of the decision.  However, you may be placing the blame in the wrong place.  The Johnson court, after all, was merely following the “precedent” of Cooper v. Auto Club, which correctly held that an action for fraud is not subject to the one year back rule.  Unfortunately, however, the Cooper court went on to elaborate in the “Cautionary notes” part of the opinion to effectively negate the principal ruling.  Without saying so, the court in effect abrogated the time-honored rule that negligence is not a defense to fraud, the principle being that one who intentionally defrauds someone cannot escape liability by claiming that his victim was a fool.  You can find cases on this.

The Supreme Court did this by citing cases that held that an insured is charged with knowledge of the insurance policy, and the like.  So you have to blame the Supreme Court, not the Appeals, who were only doing their duty to follow precedent.  Almost.  The “Cautionary” segment of the Supreme Court opinion was dictum, and therefore was actually not binding precedent.  The trouble with that, of course, is that the Supreme Court is the 900 pound gorilla, and rarely - maybe never - do lower courts have the temerity to say that the Supremes are wrong and rule the other way. ( I did it once.)

So the point I’m making is that to successfully attack a bad result you have to identify its source, which here is the cited portion of the Cooper case.

- William J. Giovan

If you have questions about attendant care, please contact one of our attendant care lawyers at (800) 777-0028, with no fee or obligation. Remember, there is a strict one-year statute of limitations to collect your attendant care benefits, and with the decision in Johnson v. Wausau, the ability for insurance lawyers allege fraud and get around the statute has again been curtailed.

—    Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. He is head of Michigan Auto Law, which specializes in insurance benefits and car accidents throughout Michigan.  Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including in 2008, according to Michigan Lawyers Weekly. Visit our law firm quick facts for more information.

Why Johnson v. Wausau Encourages Adjusters to Lie, Threatening Thousands of Michigan Residents

By Steven M. Gursten

I read with interest Daniel Bernard’s recent Local Voice column in The Detroit Legal News. Mr. Bernard writes that my own previous letter about the Johnson v. Wausau Michigan Court of Appeals decision [Docket No. 281624], is factually incorrect, and moreover that I fail to “advance the discourse over how to improve our legal system.”  I welcome this opportunity to respond, and to hopefully advance the discourse about this important case, because the rights of thousands of Michigan residents are immediately and dangerously affected by this decision.

Again, if we accept the plaintiff’s version of the facts as true in Johnson, an insurance company lied to save money from paying attendant care insurance benefits to the caregivers of a 10-month-old girl with catastrophic traumatic brain injuries from a car accident for 16 years. Instead, she was only allotted $20 per day in household replacement services.

That the claims adjuster did lie in the case is beyond dispute. The case stated: “…when plaintiff… inquired as to whether she was entitled to additional benefits, defendant told her that no additional benefits were available to her.” And the insurance adjuster “admitted he never advised… plaintiff that (she) was entitled to attendant care benefits…”

However, Mr. Bernard would put the onus on the injured — and in the case of Johnson, the catastrophically injured — to determine their legal rights to attendant care insurance benefits; claiming that to do otherwise is to “jettison any concept of personal responsibility.”  I respectfully disagree.

How exactly would Mr. Bernard have had the plaintiff in Johnson exercise personal responsibility to learn of their legal rights?  Mr. Bernard starts off his letter by stating that “I do not generally practice personal injury law, nor do I claim to be an expert on no-fault insurance…”  Sadly, this lack of familiarity with our no-fault law shows through in the rest of his letter, and fatally undermines his arguments.

How exactly should the plaintiff in Johnson have exercised personal responsibility to learn about her legal right to attendant care, as Mr. Bernard demands?

Could she ask her insurance company?  She tried that. The plaintiff in Johnson asked her adjuster. She questioned her adjuster on multiple occasions, directly and repeatedly, and the adjuster lied to her. The adjuster denied that there was any other type of benefit that she — and the catastrophically brain-damaged infant child that she was caring for — was entitled. This created devastating financial hardship during the 16 years that this child required attendant care, both for the completely innocent brain injured child and for her caregivers.

Could the plaintiff check her auto insurance policy?  No, Mr. Bernard, she could not.  I have read nearly every automobile insurance policy in Michigan at one time or another. These are long, complicated, difficult contracts to read and understand. And quite frankly, they are not written for the average person to understand. More specifically, however, almost none of the insurance policies in Michigan mention attendant care or similar nursing care services today. And I would wager that not a single insurance policy in Michigan specifically mentioned attendant care or nursing type services in their policies at the time this motor vehicle accident occurred or for years afterward. Therefore, the plaintiff in Johnson would not have known about this benefit by checking her insurance policy.

Could she check the law, perhaps even read the entire Michigan No-Fault Act? Let us now fictionally presume that the plaintiff in Johnson did have two years of law school training, can perform legal research, and looks through the entire Michigan No-Fault Act. She still would learn nothing about attendant care, because the words “attendant care” are not in the Act. She would not find anything that would suggest or resemble the attendant care benefits that she had repeatedly asked her adjuster about, on a first, second, third or more reading of the Act. Attendant care is never specifically mentioned. Instead, attendant care — or nursing services that require an “attendant” to provide “care” because of the extent and severity of injuries — is something that is derived by digging deeper and understanding the meaning of MCL 500.3107(1)(a), which states only that Personal Injury Protection (PIP) benefits are payable for “all reasonable charges incurred for reasonably necessary products, services and accommodations used for a person’s care, recovery or rehabilitation.” Throughout the years, and through much litigation about the exact meaning of the wording of the statute, attendant care has developed and evolved. No, Mr. Bernard, she would not have learned about attendant care by reading the statute.

Could she ask a lawyer?  This is, after all, what the Court in Johnson suggested she do, and as a result has now essentially destroyed any possible claim for fraud that can be made. Nor, by the way, am I alone in this assessment. James L. Borin, a pre-eminent authority on no-fault and widely respected defense insurance lawyer, openly wondered the same after his own reading of Johnson in a LawFax publication that goes out thousands of insurance adjusters and defense lawyers throughout Michigan: “Since a person, presumably, always has the ability to consult with a lawyer, can a plaintiff ever establish a claim for fraud???”

The problem, Mr. Bernard, with asking a lawyer is that very few lawyers know anything about attendant care. Very few lawyers from other areas and specialties of law know anything about no-fault benefits or attendant care. Even within the sub-specialized field of personal injury law, most lawyers know nothing about this important benefit. Ask any lawyer who frequently handles no-fault cases how often we go to court for a case evaluation hearing on a catastrophic attendant care case and have to spend the beginning of our presentation educating the case evaluation panel on what attendant care is, and the differences between no-fault replacement services and attendant care benefits. So Mr. Bernard, even if the plaintiff in Johnson had picked up the phone and scheduled and paid for a meeting with a lawyer for legal advice, the chances are very good she never would have learned about this important benefit to which everyone agrees the plaintiff was entitled.

And this is where your whole argument calling for more “personal responsibility” runs smack into a wall. The whole idea of forcing someone to have to pay money to hire a lawyer in the first place, to essentially find out if their own insurance company is telling them the truth about anything and everything, as the Court in Johnson said the plaintiff should have done, is a toxic and absurd idea. As I said before, I can’t think of a reason the Court would protect insurance companies with such unclean hands, or punish those who are obviously in a vulnerable and unequal position by presuming they should know all of their legal rights — especially when these people have undergone horrible personal injuries that require attendant care to begin with. Why are we putting this burden on the plaintiff and requiring that people now assume that our own insurance company will lie to us, and then have to pay more money to hire a lawyer to check the veracity of everything our own claims adjuster tell us?

In addition, there are no “long-standing” principles of Michigan law at issue here, as Mr. Bernard stated. In fact, quite the opposite is true. The “one-year back rule” that Mr. Bernard wrote about didn’t even exist in its present form until 2005, some 22 years after the tragic car accident in Johnson had occurred.  This “long-standing” principle of Michigan law was judicially created in 2005, in a case called Devillers v. Auto Club, when a narrow, one-justice Republican majority (that has itself been accused many times of judicial activism for political purposes) overturned almost 20 years of Michigan law; saying for the first time ever, that there was now only one year to file for benefits after a car accident — with no exceptions and no tolling. Devillers held that the one-year-back statute of limitations that prohibits recovery of Michigan PIP benefits for any portion of a loss incurred more than one year before commencement of a lawsuit filed by a Michigan attorney, is not subject to judicial tolling, overruling what was long-standing law in this state under Lewis v. DAIIE.  It is utter nonsense to say, 22 years before the fact, that the claim in Johnson was time-barred. No, Mr. Bernard, the claim in Johnson should not have been so summarily executed under the one-year back rule as you wrote in your letter.

Mr. Bernard is right that we should have a dialogue about this important issue.  I believe no recent case affects the rights of more Michigan residents than Johnson v. Wausau. I believe the public policy implications of this decision could not be worse, and I believe that the shield and immunity the case now gives insurance adjusters to lie and defraud their own policyholders is disastrous to protecting the public. I most certainly welcome dialogue on how we can protect innocent people and prevent insurance company adjusters from taking unfair advantage of them. This is why I wrote my open letter to begin with.

There must be a better solution than simply imposing a “caveat emptor” requirement on our law for any injured Michigan resident, which is really the “personal responsibility” that Mr. Bernard demands as the solution.  However, before Mr. Bernard writes that I am “wrong on the facts,” I would suggest he learn more about the subject upon which he writes.

—    Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. He is head of Michigan Auto Law, which specializes in insurance benefits and car accidents throughout Michigan.  Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including in 2008, according to Michigan Lawyers Weekly. Visit our law firm quick facts for more information.

The previous maximum for lost wages was $4,713 per month. As of October 1, 2009, the new statutory maximum for Michigan wage loss is $4,948 per month. In other words, if you are out of work due to debilitating injuries from a Michigan car accident, you are entitled to at most, $4,948 each month.

Based on the no-fault wage loss formula, which is 85 percent of one’s gross income tax-free, the maximum amount for wage loss equates to an estimated annual income of $70,000. So if you earn less than $70,000 per year, your income should be fully covered by no-fault wage loss benefits in the event of an auto accident.

If a Michigan Auto Accident Victim Earns More Than $70,000 Per Year…

If you earn more than $70,000 per year, anything you are owed over the statutory maximum is considered “excess wage loss” and is recoverable from the auto insurance policy of the person who caused the car accident.

Keep in mind that excess wage loss, which is an economic loss, is subject to pure-comparative negligence. This means you can recover your wage loss on a pro-rata basis, depending on the percentage of liability between the parties. For example, if you were 75 percent at-fault for the crash and the other party was 25 percent at-fault, you could recover up to 25 percent of your excess wage loss from the wrongdoer’s insurance policy.

If both parties were 50 percent at-fault, you can recover up to 50 percent of your excess wage loss. Obviously, if you are 100 percent responsible for the car or truck accident, there would be no recovery for excess wage loss.

As our no-fault lawyers have said before, Michigan wage loss benefits are restricted only to taxable income. Therefore, wage loss benefits do not include heath insurance, pension and other contributions.

If you have been seriously injured in a car accident and are unable to work, please call the no-fault lawyers of Michigan Auto Law at (800) 777-0028. We would also be happy to answer questions about your wage loss benefits. Our law firm has more than 50 years experience exclusively handling car, truck and motorcycle accident cases in Michigan. We can get you the benefits and compensation you need.

—    This blog post was written by Jeffrey A. Bussell. Jeff joined Michigan Auto Law’s pre-suit division with extensive experience in no-fault insurance litigation. He works closely with auto accident victims in the early stages of their lawsuits, helping them garner the no-fault insurance benefits necessary for a full recovery.

Related information:

Michigan Wage Loss Video

For Michigan Lawyers: How to Compute Wage Loss

Out of State Car Accident and No-Fault Law

Michigan Auto Law has Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, please read our law firm quick facts.

And I have received quite a bit of feedback. As I said, this case is truly one of the most disturbing I have ever read. In a public forum called The Courthouse Observer where my letter was posted, many people – from Michigan lawyers to Michigan residents - apparently agreed with my outrage that the Michigan Court of Appeals would protect an auto insurance company with unclean hands and punish those with catastrophic personal injuries from auto accidents — who are obviously in a vulnerable and unequal bargaining position.

For example, “Bill M” posted:
“This is the entire problem of the “free market” without oversight. The insurance companies only make money when they don’t pay on claims. They will do anything at all, including lie, to keep profits and high bonuses in the hands of their “leaders.” Greed has to be regulated or there is no possibility of democracy.”

“Watcher” wrote:
“The first thing that needs criminal investigation are the judges on the panel that made the ruling. The Michigan courts are corrupt beyond reason. The truth, the law, and the Constitution do not exist in Michigan courts.”

Please give us your feedback by making a comment below.

If you have questions about attendant care, please contact one of our attendant care lawyers before it’s too late at (800) 777-0028, with no fee or obligation. Remember, there is a strict one-year statute of limitations to collect your attendant care benefits, and with the decision in Johnson v. Wausau, the ability for insurance lawyers allege fraud and get around the statute has again been curtailed.

- Photo courtesy of Creative Commons, by irrezolut

Related information:

More on Johnson: Insurance Lawyer Warns of Terrible Michigan Attendant Care Ruling

Michigan Attendant Care Benefits Video I

Attendant Care Benefits Video II

Attendant Care Lawyers Beware: New Rates for Family

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, please refer to our law firm quick facts.

In efforts to help my fellow traumatic brain injury lawyers, this is another blog with information from several TBI legal seminars I’ll be speaking at in the near future. I always say that the first step in helping anyone who has suffered a traumatic brain injury from a car accident or truck accident is to find it. Unfortunately, this usually requires many years of experience for lawyers already familiar with TBI law and cases. So I’ve put together this checklist for lawyers to use during the client interview when they suspect traumatic brain injury. Remember that most emergency rooms routinely miss the diagnosis of traumatic brain injury. If you or a loved one suspects brain injury, you can also administer these questions to yourself and then talk to your doctor.

A brain injury can arise in any case — whether there was impact of the client’s head on an object or not. This said, however, the stronger cases are obviously those which include a positive altered state of consciousness. To determine if a concussive episode occurred at the time of the accident, the following questions should be asked:

1.  Do you remember the accident?  What happened just before impact?  Do you recall the impact itself?  What about immediately following the accident?

2.  Did you hit your head on anything inside the vehicle such as the steering wheel, headrest or window?

3.  Did you feel dazed or confused at any point after the accident to the time you arrived at the hospital or went home?

4.  Did you feel nauseous or sick to your stomach?

5.  Did you feel overly tired in the hour or two immediately following the accident?  Did you go to bed especially early the night of the accident?

These initial questions will give the attorney an immediate indication if a concussion (by definition, a closed-head injury) occurred. But even if the answers to all of these questions is “no,” a TBI cannot be ruled out. Regardless of the answers to these questions, the attorney must then learn about any current TBI symptoms the client may have. The detailed coverage of these symptoms is important, because many are dismissed if standing alone and/or may be attributed by the client and her doctors to other, physical injuries.

Traumatic Brain Injury Symptoms Checklist

The following is a checklist of both clear and subtle symptoms of a person suffering from an early traumatic brain injury:

Headaches — Headaches can be a good indicator of a TBI.  Focus on where the headaches generally begin. Headaches that form behind the client’s eyes, at the client’s forehead or on the top of the skull are usually indications of a traumatic brain injury. Headaches that tend to form at the base of the skull can either be from a TBI, or a consequence of a neck injury.  Likewise, headaches beginning at the temples may be a TBI symptom or a result of a TMJ injury coming from the client’s injured jaw disc.

Sensory sensitivity — When a person is suffering from a traumatic brain injury, her senses may become either overloaded or incredibly dulled. The client should be asked if she is experiencing any of the following:
•    Sensitivity to bright lights;
•    Ringing in the ears (tinnitus);
•    Lack of taste, or funny tastes (usually metallic) or smells; or
•    Loss of balance, clumsiness or dropping objects.

Emotional changes — A car accident is a traumatic event, so most people will naturally have an influx of emotions in the weeks and months following the crash. To distinguish these natural reactions from those emotional changes which are amplified by a traumatic brain injury, ask the client these questions:
•    Are you having crying spells?
•    Have you lost interest in people, relationships, sex?
•    Do you lack motivation to perform even simple tasks?
•    Do you have nightmares, flashbacks and/or changes in your sleeping patterns?
•    Has your appetite changed?
•    Are you experiencing unusual or irrational fears?

Cognitive changes — Perhaps the most telling, but illusive symptoms of brain injury is a change in the client’s cognitive functioning. These symptoms usually lead the attorney to send the client to a neuropsychologist, who can document the cognitive deficits suffered by the client. An attorney can try to uncover early changes however, by asking a few simple questions:
•    Are you having trouble remembering things? Do you go into rooms and forget why you went there? Do you have to write things down or keep a checklist for simple tasks?
•    Are you having trouble concentrating or staying focused on a single task?

In addition to these questions, the attorney can usually get a sense for memory difficulties by asking the client the name of any doctors she has seen already or giving the client a telephone or name to remember, and then asking the client to repeat what she was just said. If a client repeatedly asks you the same question or cannot recall your instructions a few seconds after you give them to her, a short-term memory dysfunction may be indicated.

A checklist of possible closed-head injury symptoms, such as the Philadelphia Head Injury Questionnaire, can be a good indicator of whether a truck accident caused a traumatic brain injury. But even if the responses are negative, the list should be returned to at regular intervals to see if brain injury is reactive to your client’s injuries.

—    Steve Gursten is a member of the American Association for Justice Traumatic Brian Injury Group and lectures on TBI throughout the country. He was recently invited to become the first Michigan traumatic brain injury lawyer to serve on the legal committee for the Sarah Jane Brain Project. In 2008, Steve received a trial verdict of $5.65 million for a TBI victim; the largest reported auto negligence verdict in Michigan for the year according to Michigan Lawyers Weekly.

Related information:

Steps Michigan TBI Victims Must Take After an Auto Accident

Documenting Traumatic Brain Injury

Michigan No-Fault Insurance Law

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, please refer to our law firm quick facts.

Bob will discuss opening statements and closing arguments in first-party and third-party car accident cases and truck accident cases.

— Robert M. Raitt is a Michigan Auto Law partner and past president of the Michigan Association for Justice. Previously, he was a Michigan Association for Justice officer and executive board member.

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, refer to our law firm quick facts.

Watch personal injury lawyer Robert Raitt discuss car accident victims’ rights and the Michigan auto accident law Kreiner v. Fischer:

And it can be very dangerous in certain situations.

The danger arises when an auto accident victim also has private short-term and/or long-term disability insurance of any kind. In other words, if you have coordinated/excess wage loss, and you qualify for coverage under any kind of private disability plan, your auto insurance company will only pay the difference between the amount you receive from your disability policy and the statutory maximum of 85 percent of your gross income as required as by the No-Fault Act — due to possible contractual set-offs (reductions in benefits) included in many disability policies.

Keep in mind another problem with many private disability insurance policies: They may contain auto exclusion clauses, have high deductibles, and/or require reimbursement of any duplicated payments by an auto insurance carrier. Therefore, it’s common for an auto insurer to wait for the disability plan to pay first… but the disability policy won’t pay because the personal injury resulted from an auto accident or for some other reason listed in the policy. Ultimately, the auto accident victim either never gets paid or the delay in payment will take an extremely long time to resolve. It can be a real mess.

What To Do With your PIP Policy

If you are certain you have no private disability policies, then coordinated/excess wage loss can be elected on your PIP benefits.

However, the moment you pick up any type of short term or long-term disability coverage, it is highly recommended that you change your auto insurance coverage to primary wage loss. With primary wage loss, your auto insurer pays wage loss first, without respect to other sources of income. Because many people forget to change their coverage or are just not aware of the consequences of having the wrong coverage, it’s a better choice to always elect primary wage loss coverage.

Unfortunately, it’s the people who can’t afford to wait for their wage loss benefits or can’t afford to absorb the high deductibles who are the most targeted for coordinated/excess wage loss coverage. It’s very simply, cheaper than primary coverage.

Please be aware that worker’s compensation, Social Security disability (SSD) and supplemental security income (SSI) are not private disability plans and are always a set-off against PIP wage loss by law, regardless of whether primary or coordinated/excess coverage was elected.

Lastly, if you have primary wage loss and also want to collect private disability benefits, you must get the terms of the disability policy first to determine if the there is any language that would required either a reimbursement or would prohibit you from double collection.

— This blog post was written by Jeffrey A. Bussell. Jeff joined Michigan Auto Law’s pre-suit division with extensive experience in no-fault insurance litigation. He works closely with auto accident victims in the early stages of their lawsuits, helping them garner the no-fault insurance benefits necessary for a full recovery.

Related information:

Out of State Car Accident and Michigan’s No-Fault Insurance Laws

Challenges Facing Auto Accident Lawyers When Dealing with Michigan No-Fault Law

PIP Benefits Denied

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Southfield, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Please call (800) 777-0028 if you have been in an auto accident and are confused about your no-fault insurance policy. For more information, refer to our law firm quick facts.