Michigan Court of Appeals; Docket # 343495; Unpublished
Judges Gleicher, Ronayne Krause, and O’Brien; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
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In this unanimous per curiam unpublished opinion, summary disposition for defendant was REVERSED because the Plaintiff presented sufficient evidence to create a question of fact regarding whether his claimed injuries were objectively manifested, and whether they affected his general ability to lead his normal life.
B. Nature of Injury/Disability:
The court noted that the plaintiff in this case “summarized his injuries from the accident as an injury to his lower back, numbness in his legs due to nerve damage, diabetes, torn muscles, and arthritis in his spine.” The plaintiff claimed that his injuries affected his ability to engage in a variety of hobbies and physical activities. Defendants disagreed and argued that plaintiff’s pre-accident life was sedentary.
C. Medical Treatment:
Plaintiff denied treatment at the scene of the accident, but sought medical treatment for pain in his shoulder and foot the following day. Three months after the accident, the plaintiff began seeing a chiropractor, who referred plaintiff to a neurosurgeon. Plaintiff was then treated “‘mainly [for] aching pain on the left lower extremity and numbness on the top of the foot,’” and then discharged. Subsequently, the plaintiff was further treated by a second chiropractor approximately one year after the accident.
D. Element #1 – Objective Manifestation:
In holding Plaintiff presented sufficient evidence to create a question of fact regarding whether his claimed injuries were objectively manifested, the court reasoned:
In Patrick v Turkelson, 322 Mich App 595, 607; 913 NW2d 369 (2018), this Court explained, “Although mere subjective complaints of pain and suffering are insufficient to show impairment, evidence of a physical basis for that pain and suffering may be introduced to show that the impairment is objectively manifested.” Plaintiff here presented evidence of a physical basis for his pain: plaintiff provided (1) medical records documenting muscle spasms, swelling, and subluxations in plaintiff’s back that Dr. House testified could decrease range of motion and cause pain and (2) an x-ray taken by Dr. House that he testified showed that plaintiff had bulging discs, which Dr. House explained could cause pain in the spine and legs. Thus, plaintiff at least established a question of fact whether his impairment was objectively manifested.”
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
In holding that Plaintiff presented sufficient evidence to create a question of fact regarding whether his claimed injuries affected his general ability to lead his normal life, the court noted that “[a]t plaintiff’s deposition, he testified that before the accident, he bicycled a lot, and that after the accident he was ‘[n]ot really’ able to bike anymore. Plaintiff also testified that before the accident, one of his hobbies was radio control (RC) cars, but after the accident he is unable to use them because if he flipped one of the RC cars “a thousand feet away, having to walk to go pick it up . . . cause[d] pain in [his] hips and in [his] lower back.” Plaintiff further testified that before the accident, he enjoyed fishing, but after the accident, fishing “caused severe lower back pain.” Plaintiff’s testimony that he no longer has the ability to engage in the recreational hobbies that he engaged in before the accident is sufficient to create a question of fact whether his injuries affected his general ability to lead his normal life, i.e., the third McCormick prong. The trial court erred by ruling otherwise. In arguing that summary disposition was proper, defendants point to evidence suggesting that plaintiff’s life before the accident was sedentary and that he did not engage in the recreational activities that he testified to. While we agree with defendants that there is evidence that tends to cut against plaintiff’s testimony, at the summary disposition stage courts must view the evidence in the light most favorable to plaintiff and generally avoid weighing the credibility of witnesses. And when viewing the evidence in the light most favorable to plaintiff and accepting plaintiff’s testimony as true, plaintiff established a question of fact whether his injuries affected his general ability to lead his normal life.”
