TOV Injury and Safety Blog

Multiple fractures in lower spine constitute "serious impairment:" AutoOwners must pay

Jake Vielstra suffered multiple fractures in his lower spine when the driver of the car he was in accidently rolled it several times.  She had only $20,000.00 in coverage, which her insurer promptly offered to pay Vielstra.  After complying with AutoOwner's settlement restrictions, Vielstra took that money and filed an Underinsured Motorist claim against AutoOwners (his own carrier).  AutoOwners declined to pay any settlement, maintaining that Vielstra did not suffer a "serious impairment of bodily function." 

Farm worker's appeal of jury award (and $15,000 for future pain) is rejected

Richard Latting, Jr., was struck by a tractor driven by David Clay on David Pennell's farm.  The jury allocated ten percent fault to the owner, sixty percent to the driver and thirty percent to Latting, and awarded damages totaling $33,000 for liened medical expenses, and $68,000 for Latting's personal damages.  Latting appealed the verdict on several grounds, and the owner appealed arguing the case should have been dismissed.

State Farm clobbered after refusing to pay for pain management

The Court of Appeals recently affirmed a $2.5 million dollar verdict in favor of Sheri Anderson against State Farm Mutual.  Anderson suffered from facial pain and headaches after striking the car window in a motor vehicle collision.  Already suffering from multiple sclerosis, Anderson received pain treatment from anesthesiologist Maurice Converse, an M.D. who graduated from Ohio State's medical school.  His treatment included facial injections of steroids, anesthetic and Sarapin.  State Farm covered the treatments for about three years before rejecting payment.  Converse continued to treat Anderson without payment, and she filed suit for Personal Injury Protection benefits. 

State Farm argued to the jury that the treatments were unnecessary, inappropriate, and valuable to Anderson because of her underlying MS, rather than the motor vehicle injuries.  It also argued that Anderson was malingering.  Both sides presented expert testimony to support their claims.  The jury rejected State Farm's defense and awarded Anderson and Converse the full amount owed, including punitive interest.

The unanimous Court of Appeals panel noted that State Farm was cherry-picking the evidence on appeal, and that the trial court had properly limited some of State Farm's evidence in response to State Farm's failure to properly comply with discovery requirements of the Court.  It concluded that the jury verdict was an appropriate outcome under the circumstances of the evidence presented.

Darvon to carry stronger warning

As the Food and Drug Administration has become more active under President Obama, new issues have arisen, almost weekly, regarding the use and mis-use of various pain medications.  Last week, a panel of the FDA  recommended that percocet and vicodin be managed differently, in order to guard against liver damage potentially resulting form over-use of the medications. 

Jury determines shoulder injury was not a serious impairment

In Regan v. Suchowolec, the Court of Appeals was asked to consider a jury's verdict of no cause action, denying Ms. Regan any recovery for her motor-vehicle-accident-shoulder injury.  She claimed that the trial court should have directed a verdict in her favor and not allowed the jury to decide the issue.  The Court of Appeals rejected her request, holding that her claims, particularly her description of pain and interference with life activities, were questions of fact and credibility and properly decided by a jury.

Dismissal of "serious impairment" claim upheld on appeal

The Saginaw case brought by Julie Garcia against the driver who injured her, Dale Doyle, was dismissed in the trial court.  The Court of Appeals upheld the dismissal, finding that Ms. Garcia did not satisfy the Taylor Supreme Court's Kreiner standard of "serious impairment".  Ms. Garcia suffered a fracture of her seventh cervical vertebra.

CT scans and MRIs may not be reliable indicators of the source of pain

On December 9, the New York Times published an article addressing the increasing controversy over abnormal findings on CT scans and MRIs.  The Times talked to the authors of two separate studies that found radiological abnormalities in just about as many healthy, pain-free individuals as were present in patients seeking treatment for pain.  The studies involved patients with knee pain and back pain.

Pain killers double the risk of heart attack and heart failure

Bloomberg reported on Veterans' Day that pain medications, including generic ibuprofen, have been linked to higher rates of heart attack and heart failure among patients with a history of cardiac problems.  The study involved more than 58,000 patients who had previously suffered a heart attack, and more than 100,000 patients diagnosed with various levels of "heart failure". 

Likely changes in the Kreiner "serious impairment" standard for auto injuries

The Michigan Lawyers Weekly re-stated the obvious this week, when it pointed out that Cliff Taylor's loss in the Michigan Supreme Court race likely dooms the current "life-altering" interpretation of "serious impairment of bodily function".  A person injured in a motor vehicle collision can only sue the at-fault if she or he suffers death, permanent serious disfigurement, or a serious impairment of bodily function. 

Justice Weaver, the Court's fifth Republican Justice, had dissented from Taylor's "textualist" re-writing of the no fault act, a re-writing that rendered the serious impairment threshold a greater impediment to victim's claims by imposing a requirement that the "serious" injury be "life-altering".  In the thirty-plus years after the no fault act was adopted in 1973, both the Legislature and the Supreme Court had rejected this kind of "catastrophic" threshold for bringing a lawsuit.  Since the new Justice, Diane Hathaway, had staunchly and publicly criticized the re-writing of the no fault threshold by Taylor, it appears all but certain that  she and Weaver will form part of a four-Justice majority, with Justices Kelly and Cavanaugh, espousing the philosophy of the Kreiner dissent and preserving the original statutory meaning.

No value in knee surgery for arthritis?

The New England Jounal of Medicine, one of the most prestigious journals in America, reported last week that surgery is apparently of no value in alleviating arthritis pain in the knee joint.  Patients who underwent physical therapy and took anti-inflammatories did just as well, after two years, as patients who had undergone surgery.  The results confirm a study performed in 2002 which reached the same conclusion, but was designed and conducted in a different manner.  Apparently removing debris from an arthritic knee joint contributes very little to a positive outcome.  A separate study in the same issue of the NEJoM pointed out that painful knee joints did not correlate well with the discovery of torn cartilage in the joint.  Most people with arthritis have a torn meniscus (the pie-shaped cartilage that keeps the femur and tibia from operating "bone-on-bone"), but many people with torn menisci are symptom-free.

Badly fractured wrist is not "serious" under Kreiner

Yet one more aberrant decision has come down, applying the Kreiner serious impairment test to protect an insurer from paying compensation.  In the instant case, Adams v. Hodge, the young woman suffered a badly fractured wrist.

The Court of Appeals struggles with Kreiner standard

  A recent decision in Anderson v. Alexander helps to illuminate the struggle involved in interpreting the Kreiner case, while also attempting to do justice to an injury victim.

Judge Saad strikes again: 16 year-old bitten by a pit bull gets no compensation for pain

Judge Saad, a Robert Bork wannabe on Michigan's Court of Appeals, has consistently proferred interpretations of the law that favor insurers and take rights from citizens and consumers.  In his most recent decision, he joined with another judge to hold that a young girl who was bitten by a pit bull in an unprovoked attack could not identify for the jury the breed of dog that bit her, and could not appeal the jury's decision that she should recieve no compensation for pain and suffering or mental anguish.

Study shows pain commonly lasts for a year post-trauma

  A recent study published in the Archives of Surgery showed that significant pain commonly remains more than one year after trauma.

Low back pain: Controversy over back surgery and Prodisc

The January 30 issue of the New York Times included a lengthy critique of the conflict of interest that has been uncovered with the artificial spinal disc "Prodisc".  The artificial disc sells for about $10,000.00 and has generated significant profits for its manufacturers and investors, even though Medicare and many private insurers will not pay for its use or the expensive surgery to install it.

The Times reported that it has recently come to light that the medical researcher/doctors who endorsed the Prodisc and who were involved in the study that purportedly demonstrated its effectiveness were also investors in the product.  Thus, there is substantial question whether they were neutral, objective researchers with regard to the effectiveness of the surgical installation or the analysis of the resulting data.

The controversy over fibromyalgia

   It has been decades since we have observed a medical controversy of the magnitude we see currently with fibromyalgia.  Knowledgeable and compassionate experts in orthopaedics and pain management seem to fall resolutely at both ends of the spectrum with regard to the propriety of this diagnosis.

  Fibromyalgia was defined in a 1990 medical paper as a condition, primarily affecting middle-aged women, characterized by chronic, widespread pain of unknown origin.  It frequently occurs concomitantly with other conditions such as depression and irritable bowel syndrome.  The lead author of that paper which "recognized" and defined fibromyalgia, Dr. Frederick Wolfe, director of the national databank for Rheumatic Diseases, has since changed his mind and concluded that appending this diagnosis on the pertinent symptoms is actually counter-productive for the patient.  Dr. Wolfe now believes that rather than a separate disease process, fibromyalgia instead represents a physical response to stress, depression and anxiety.  Whether a separate medical condition, or a negative reaction to other conditions, advocacy groups argue that between 2 and 4 percent of Americans demonstrate the symptoms.

The large drug companies have entered into the fray, now, however, with drugs approved for the treatment of this controversial disease.  Pfizer, for example, secured approval to sell Lyrica as a treatment for fibromyalgia, despite very very modest evidence of effectiveness in treatment.   Eli Lilly and Forest Laboratories have also sought approval from the FDA for drugs intended to treat fibromyalgia.

  Dr. Dan Clauw of the University of Michigan, who has consulted with Pfizer, thinks that the recognition of fibromyalgia as a separate disease construct will help to achieve better understanding of the condition and end the longstanding undertreatment of the disease symptoms.

  There is no test to diagnose fibromyalgia.  A survey performed by an advocacy association documented that 63 percent of patients suffered from back pain, 40 percent suffered from chronic fatigue syndrome, and 30 percent from tinnitus or ringing in the ears.  Many other symptoms, affecting fewer patients, were also identified.

  In clinical trials, Lyrica did not perform well and it caused significant side-effects.  Patients suffering from fibromyalgia, diabetic neuropathy or shingles described a 2-point drop on a ten-point pain scale, compared with a one-point drop for patients receiving a placebo.  Since many patients suffered weight gain (9 percent experienced a 7 percent weight gain in 12 weeks--a gain that appears to continue after the 12 weeks), edema, dizziness and sleepiness, FDA reviewers did not recommend approval of the drug.  They were especially concerned about weight gain with fibromyalgia, since in the 2007 survey, the average patient diagnosed with fibromyalgia stood 5 foot 4 and weighted 180 pounds. 

   Nevertheless, senior FDA officials in the Bush Administration overruled the reviewers and Lyrica was approved.  The company then ramped up its advertising, spending 79 million dollars in the next 19 months to hype the drug.  According to Dr. Wolfe, even the modest improvement in pain levels documented for Lyrica during the first 12 weeks are not sustained.   The drugs nearing approval by the other manufacturers have taken a different approach to the fibromyalgia problem:  they were developed as anti-depressants, originally, designed to increase levels of serotonin and norepinephrine.  The Lilly drug, Cymbalta, has demonstrated treatment efficacy similar to that documented with Lyrica.

Severe injuries, pain and depression

An April, 2007, study by the University of Michigan Health System documented some of the connections between pain and depression.  The study noted that people suffering from severe pain are at high risk to suffer severe depression, as well.  We have observed this same phenomenon over several decades of injury practice and we have documented it with many of our clients' treating physicians.  The U of M study goes a step further to quantify the problem. 

The researchers at U of M noted that depression is often caused by chronic pain, alone.  In addition, inability to participate in physical activity, inability to maintain fitness levels and general deconditioning all contribute to cause depression or to make it clinically more severe.  Jarring life transitions resulting from injury and financial concerns also can contribute.  None of this is rocket science or jarring, but it is good to see the problem documented and confirmed in a reliable way.

The existence of depression is a complicating factor in healing and coping, as well.  The U of M study documented that people reporting moderate to severe depression were 11 times more likely to report that they are experiencing difficulty sleeping.    They are also likely to experience injury to social relations and loss of social support, difficulty with alcohol or drug use, difficulty with maintaining even a part-time job, and difficulty with fitness, weight control and hygiene.

If you or a loved one has experienced a severe injury, please be alert to the symptoms of anxiety and depression.  If you observe them, discuss them with the care givers to assure that the medical problems experienced by the patient are not compounded by clinical depression.  Over the years, we have observed a number of our clients who were very severely injured--particularly men--but who refused prescription drugs for depression in the following months.  Eighteen months to two years later, many of them were willing to acknowledge that their overall recovery and well-being was delayed as a result, and that their pain control and emotional health did not gain momentum until they began taking anti-depressants and re-establishing healthy sleep patterns.