Practitioners handling limited tort cases generally believe that an injury has to be permanent in order to breach the “serious impairment of bodily function” threshold. However, this is not the case. Further, there is a misconception that pain alone, without confirmation by objective testing cannot as a matter of law constitute a serious injury or impairment.
While practically, a permanent injury or an injury confirmed by objective MRIs or EMGs has a higher likelihood to result in a jury determination that a Plaintiff sustained a serious impairment, the Pennsylvania Courts and Standard Civil Jury Instructions state specifically, an injury does not have to be permanent to breach the serious impairment threshold.
Although drafted long before the Pennsylvania Supreme Court’s seminal limited tort decision, Washington vs. Baxter, Jr. 553 Pa. 434 (1998), the Pennsylvania Standard Civil Jury charge effectively mirrors the standard set forth above in Washington. The Pennsylvania Model Jury Charge 602D, regarding “Auto Negligence: Serious Impairment” provides in relevant part that:
Under Pennsylvania law, the plaintiff may recover non-economic loss damages in this case if the plaintiff can show by the greater weight of the evidence the Plaintiff suffered serious impairment of body function. To decide this, one must decide, based upon the evidence:
(1) Whether the injuries sustained by the plaintiff in the accident impaired one or more body functions; and (2) Whether that impairment of a body function was serious.
In determining whether the impairment of a body function was serious, you should consider such factors the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment and any other relevant factors.
An impairment need not be permanent to be serious. (emphasis added)
The terms “serious,” “impairment,” and “body function” have no special or technical meaning in the law and should be considered by you in the ordinary sense of their common usage. Pa.S.C.J 602D. In a pre-Washington Superior Court decision, the Court in Leonelli v. McMullen, 700 A.2d. 525 (Pa. Super. 1997), reversed a trial court’s Order for Summary Judgment based on the limited tort threshold. The trial court granted summary judgment because: (1) Plaintiff went back to work after the accident; (2) Plaintiff’s self-imposed limitations were not doctor ordered; and (3) Plaintiff did not immediately seek treatment from a physician after her accident. In reversing, the Superior Court addressed reasoned:
1. While an individual’s ability to work may be a factor in determining the severity of a Plaintiff’s injuries, the fact that an individual is able to return to employment after a motor vehicle accident cannot be conclusive as to whether Plaintiff suffered serious injuries.
2. Plaintiff’s reluctance to seek additional medical treatment after she was evaluated and released from the emergency room could have been attributed to her limited financial resources. Therefore, the fact that there was a seven week lapse in treatment cannot be conclusive evidence that her injuries were not serious.
3. The trial court committed an error by finding as a matter of law that Plaintiff’s subjective complaints and self-imposed restrictions were not sufficient evidence to show that Plaintiff had suffered a serious impairment of body function.
Further, when arguing a serious impairment does not have to last indefinitely, practitioners should cite Dodson v. Elvey, 445 Pa. Super. 479, (1995). The Dodson Court held that in defining “serious injury”, permanence is not required. Additionally, the Court in Dodson recognized that the Plaintiff’s subjective complaints of pain may result in a serious impairment of body function. In Dodson, the Court focused not on whether the injuries were permanent, but on how the injuries affect the bodily function, the extent of the impairment, the treatment required to correct the impairment, and any other relevant factors.
In order to prove a serious impairment of a body function, counsel must develop a consistent record of plaintiff’s restrictions and cessations of activities of daily living, and the specific pain and limited strength and mobility that affect each endeavor. The injured victim should explain his/her restrictions and the reasons for them to all health providers, including the defense IME physician, all of whom should include this in their notes, reports and videotaped depositions. Similarly, the client should explain in his deposition and trial testimony by anecdotes and stories how the accident has materially adversely affected his life.
Additionally, in another pre-Washington decision which still offers valuable assistance in determining what constitutes a “serious injury”, the Court in Chanthavong v. Tran, 452 Pa. Super. 378, 682 A.2d. 334 (1996), “recognized that a soft tissue injury can constitute a ‘serious injury’ where it is objectively manifested and substantially impairs a bodily function.” The Chanhtavong decision did away with a defense argument that a soft tissue injury case cannot be a “serious” injury.