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Second degree burns over 11 percent of body is adequate to support ten days' wage loss: if jury agrees.

Cassandra Grays suffered the described burns over her arm, shoulder and chest, when Ismael Ellabib opened his over-heated radiator cap while she was standing near by.  She sued for PIP benefits and pain and suffering.  The Court dismissed her claim for non-economic damages because she did not meet the no fault threshold of a "serious impairment of bodily function" and also dismissed her PIP claim for medical expenses and lost wages. The Court of Appeals reversed the wage loss claim, over the startling objection of Judge Whitbeck.

The PIP insurer, Dairyland Insurance Company, sought summary disposition and attached to its motion Grays' medical records confirming the injury and treatment provided.  It also attached Grays' deposition testimony confirming that she missed ten days' work.  It argued that since she did not provide evidence that the doctor approved missing ten days' work, she was not entitled to any wage loss.

The Court majority noted that Grays testified that she could not work for ten days because of extreme pain.  It also noted that the nature and extent of the injury, and the cause, were confirmed by the physician's notes, which documented that her doctor saw Grays in his office on two of the ten missed days.  Therefore, the judges concluded the records, the photographs of the extensive burns and the woman's testimony were adequate to support a verdict for Grays, if the trier-of-fact chose to believe her.  On that basis, summary disposition for the insurer was inappropriate and reversed.

Judge Whitbeck, a Republican nominee from many years ago, is normally a fairly even-handed and fair-minded jurist, so it was a surprise to learn from his dissent that he would have upheld the summary dispostion of Grays' claim.  The Judge pointed to the fact that Grays never submitted work restrictions signed by the doctor or a wage verification form from her employer, Family Dollar. He concluded that the medical records, photographs and her testimony "shows nothing more than she sustained an injury and that she did not return to work immediately thereafter.  To infer that her claimed work loss was a direct consequence of the injury, absent some sort of evidentiary support is at best speculation."  The italicized words were the Judge's emphasis, the bold emphasis is ours.  The Judge continued:  "Neither party disputes that Grays was seriously burned or that she missed approximately 10 days of work...however, she has not demonstrated that the injury, as opposed to the accident, caused her to miss work." Despite acknowledging that "a statement from a physician is not necessary" to support a wage loss claim, Judge Whitbeck would rule that Grays' evidence did not create a reasonable inference that the nature of the injury led to her absence, "rather than a mere disinclination to return to work." 

Respectfully, we think this dissent represents a very distressing example of the non-functional state of our judiciary.  The "life of the law" is neither logic nor experience in Michigan, today.  Rather the "life of the law" is infused with a pernicious, partisan agenda of insurer or insured dominance that little accounts for careful examination of the "justice" of an individual case.  It is as though judges were keeping a "score card" of insured vs. insurer--and anxious to weight their votes heavily toward a favored outcome.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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