Michigan Court of Appeals; Docket # 342066; Unpublished
Judges Cameron, Markey, and Borrello; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Closed Head Injury Question of Fact [§3135(2)(a)(ii)]
General Ability/Normal Life Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(7)]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(7)]
TOPICAL INDEXING:
Not applicable
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion, summary disposition for defendant was AFFIRMED because (1) there was no factual dispute regarding the nature and extent of Plaintiff’s injuries, and Plaintiff’s injuries did not satisfy the tort threshold under McCormick; and (2) plaintiff failed to satisfy the requirements of the closed head injury exception in MCL 500.3135(2)(a).
B. Nature of Injury/Disability:
The plaintiff in this case underwent imaging scans done of his head, right shoulder, left knee, and left ankle. He was diagnosed with a right shoulder dislocation, and a CT scan of his head revealed “minimal hyperdensity within the sulcl [sic] of the right temporal lobe, which may represent a very subtle subarachnoid hemorrhage.” A subsequent CT scan of his head revealed “no acute parenshymal hemorrhage, acute ischemia, mass or midline shift.” The impression was “[s]mall bifrontal soft tissue hematomas,” but “[n]o acute intracranial injury.” Approximately 1½ years after the accident, plaintiff visited Dr. David A. Green, a neurologist at the Michigan Institute of Neurological Disorders (MIND), who diagnosed plaintiff with a closed-head injury and headaches. According to plaintiff, he was no longer able to “work, could not help around the house, could not garden or shovel snow, stopped going out with friends, and no longer played soccer since the accident.”
C. Medical Treatment:
Following the accident, the plaintiff was transported from the scene of the accident to the hospital, where he underwent imaging scans of his head, right shoulder, left knee, and left ankle. He was then transported to a military hospital, where he was treated for his multiple injuries and underwent more imaging scans. He followed up with his doctors within the first week of his discharge from the military hospital, and began seeing a neurologist approximately 1 ½ years after the accident.
D. Element #1 – Objective Manifestation:
In finding that summary disposition was properly granted below, the court first recognized that summary disposition is always appropriate when there is no genuine issue of material fact regarding the nature and extent of the plaintiff’s injuries. In this case, the court held that there was no genuine issue of material fact regarding the nature and extent of the plaintiff’s injuries, and that the plaintiff’s injuries did not satisfy elements one or three under McCormick. With regard to the objective manifestation element, the court the court noted that “[t]here is no dispute that plaintiff dislocated his right shoulder[,] [t]he trial court, however, did not err when it concluded that the right shoulder dislocation was not objectively manifested because the radiology report indicated no dislocation and there was no objective physical manifestation of impairment. The day after the accident, plaintiff’s shoulder was reset and, although he used a sling for approximately a week, there was no further medical intervention required. On appeal, plaintiff does not indicate any kind of impairment as it relates to his shoulder, and we conclude that there is simply no evidence in the record indicating an objectively manifested impairment . . . Plaintiff also claims the spasms in his neck and back constitute objectively manifested impairments because they are clearly a physical impairment that a person would observe. However, plaintiff has provided no medical documentation that supports this claim. While plaintiff has made subjective complaints of neck and back spasms, the medical records indicate that plaintiff has full range of motion, and the tests do not show any kind of impairment, let alone a serious one. Therefore, this argument fails. We conclude that the trial court properly granted summary disposition because there exists no objectively manifested impairment.”
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
In holding plaintiff’s injuries fail to satisfy the general ability element, the court reasoned that “plaintiff has not raised a genuine issue of fact as it concerns plaintiff’s shoulder, neck, and back injuries. Although plaintiff claims he fatigues easily, cannot perform household chores, has no desire to interact with friends and family, can no longer play soccer, and cannot work, he has not provided any proof or explanation as to how his injuries actually prevent him from performing these activities. There is no showing that the shoulder, neck, or back injuries have affected his ability to do any of these tasks, and the medical records all indicate normal functioning.”
G. Other Comments:
A central issue in this case was whether the plaintiff in this case satisfied the closed head injury exception in MCL 500.3135(2)(a). In holding that the plaintiff failed to satisfy this exception, the court first noted that “MCL 500.3135(2)(a)(ii) provides a threshold requirement in order to automatically raise a factual dispute as to the nature and extent of a closed-head injury, which states, [F]or a closed head injury, a question of fact for the jury is created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury.” The court then noted that in Churchman v Rickerson, 240 Mich App 223, 229(2000), the court “declined to accept the plaintiff’s argument that a simple diagnosis of a closed-head injury automatically meets the threshold of the no-fault statute.” The court then noted, “plaintiff presents only a diagnosis of a closed-head injury. There is no evidence in the record of an affidavit or other sworn testimony from a doctor that would support this diagnosis and the proposition that the closed-head injury was serious. . . Moreover, Dr. Green’s diagnosis does not include any indication as to the severity of the closed-head injury. Therefore, as in Churchman, plaintiff has not raised a factual dispute as to the closed-head injury sufficient to meet the requirement under MCL 500.3135(2)(a)(ii).” The court then recognized, however, that “the exception under MCL 500.3135(2)(a)(ii)” is not “the exclusive manner in which a plaintiff who has suffered a closed-head injury may establish a factual dispute precluding summary disposition. In the absence of an affidavit that satisfies the closed-head injury exception, a plaintiff may establish a factual question under the broader language set forth in subsection 3135(2)(a)(i) and (ii) . . . . In this case, the trial court failed to address the nature and extent of plaintiff’s closedhead injury under MCL 500.3135(2)(a)(i) and (ii). Under Churchman, remand is required so that the trial court may address this threshold question. Furthermore, the trial court also did not address Dr. Green’s diagnosis when it applied the McCormick three-prong test to plaintiff’s closed-head injury."
