Lawyers’ Corner: Secondary Injuries in Spectrum Health Hosp v Farmers Ins Exch

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Life after a severe auto accident can be hard. Depending on the initial injury, even walking can become a challenge. But can secondary injuries resulting from a disability give rise to no-fault benefits? The Michigan Court of Appeals recently took up the issue.

Secondary injuries are an unfortunate consequence of many serious auto accidents. When a person’s balance or mobility are compromised, he or she may become all too susceptible to another fall. When that happens, can the person or their medical providers go back to the auto insurance provider for money? Will no-fault benefits stretch to cover those secondary injuries?

Fall Causes Secondary Injuries Years After Car Crash

Tamra Wheeler was seriously injured in a car crash in 1989. She had a number of surgeries and other treatments, but in the end, her doctor said her left leg was “like a post.” Her ankle was fused, which caused her legs to be different lengths. This hindered her ability to move and walk, especially on uneven surfaces. Most of the time she used a wheelchair. She was also on high levels of pain medication, which left her impaired.

On April 5, 2013, she took her wheelchair outside to talk to her husband. She got up out of her wheelchair and slipped and fell on the ice, fracturing her right ankle. A doctor at Spectrum Health Hospitals performed surgery a few days later. Spectrum then sought no-fault benefits from Farmers Insurance Exchange, which had insured Wheeler in 1989 and paid benefits for that accident.

Farmers denied Spectrum’s claim because it said the broken ankle was not caused by the 1989 accident, but by the intervening event of Wheeler slipping on the ice. Spectrum, Wheeler, and her doctor disagreed, saying that she fell because:

  1. She was taking pain medication related to the 1989 accident
  2. She was unable to compensate for the loss of footing using her left leg
  3. The different lengths of her legs severely affected her balance.

The district court judge in refused a motion for directed verdict and sent the case to trial. A jury agreed with the plaintiffs and awarded Spectrum medical fees and interest. On December 5, 2014, the judge entered an order for those awards, which said “[t]his Order does not resolve the last pending claim and does not close this case.” On January 13, 2015, a final order added interest and attorney fees to the award, closing the case.

A Timely Appeal

Before the Michigan Court of Appeals could address the issue of the secondary injury, in Spectrum Health Hospitals v Farmers Insurance Exchange, it first had to determine if the appeal was filed on time. The December 5 order did not include attorney fees and explicitly said it was not the final order in the case. So the court found that the appeal, filed on January 30, 2015, was within 21 days of the final order filed on January 13, 2015, making it a timely appeal.

When Secondary Injuries “Arise Out Of” Auto Accidents

The court based its decision on MCL 500.3105(1), which states:

“Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.”

The court relied on a Michigan Supreme Court decision, McPherson v McPherson, in applying this section to Wheeler’s secondary injuries. McPherson states:

“It is not any bodily injury that triggers an insurer’s liability under the no-fault act. Rather, it is only those injuries that are caused by the insured’s use of a motor vehicle.”

For a secondary injury to qualify there must be a causal connection between that injury and the use of a motor vehicle that “is more than incidental, fortuitous, or ‘but for’.” The court compared Wheeler’s situation to McPherson.

In the Supreme Court case, McPherson’s auto accident in 2007 resulted in a neurological condition. He suffered seizures. One such seizure caused him to crash his motorcycle in 2008. The Michigan Supreme Court found the 2008 secondary injuries “simply too remote and too attenuated from the earlier use of a motor vehicle to permit a finding that the causal connection between the 2008 injury and the 2007 accident is more than incidental, fortuitous, or ‘but for.’”

The court summarized that, in order for secondary injuries to be compensable, they must be related to the first injury in some direct way. That didn’t happen in Wheeler’s case. The court said:

“In this case, Dr. Maskill’s testimony shows that Wheeler’s ankle fracture on April 5, 2013, was caused by her fall, which was caused by her instability when walking, which was caused by the injuries she suffered from the 1989 accident.”

This was not a sufficient causal connection to allow no-fault recovery for her secondary injuries. There was not evidence to suggest the first injury caused the second injury. Instead, the first injury caused the second accident, which in turn caused the second injury. Wheeler’s 1989  leg injury did not directly cause her broken ankle in 2013. Instead, it caused the intervening slip and fall accident, which in turn caused the injury.

Representing Clients With Secondary Injuries

Wheeler should not automatically discourage attorneys from taking on no-fault cases for secondary injuries. While the plaintiffs in McPherson and Wheeler may not have qualified for benefits, circumstances do exist where the first injury directly causes a secondary injury. For example, in brain injury cases, loss of blood flow caused by inflammation (the first injury) can cause nerve cell death and result in disability (the secondary injury). Unlike in Wheeler, in these cases there is no intervening accident to cut off no-fault benefits. Therefore a secondary injury claim is warranted, and often necessary to get clients the ongoing medical treatment they need.

David Christensen is an auto accident attorney at Christensen Law in Southfield, Michigan. If your client has a difficult no-fault issue, contact Christensen Law today for a referral.