Michigan Court of Appeals; Docket # 343292; Unpublished
Judges Murray, Jansen, and Riordan; per curiam
Official Michigan Reporter Citation: Not appliable; Link to Opinion; Link to Dissent
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(7)]
General Ability/Normal Life Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(7)]
Causation Issues
TOPICAL INDEXING:
Not Applicable
SUMMARY:
A. Disposition:
In this 2-1 per curiam unpublished opinion (with Judge Jansen dissenting), summary disposition for defendant was AFFIRMED because the plaintiff failed to present sufficient evidence to create a question of fact regarding whether she suffered an objectively manifested impairment and whether any such impairment affected her general ability to lead her normal life.
B. Nature of Injury/Disability:
The plaintiff in this case suffered from chronic back pain, degenerative changes of her lumbar spine, and postsurgical changes related to a decompressive laminectomy surgery in 2007. She also had degenerative changes in her right knee. The plaintiff, herself, attributed a bicep tear, multiple disc bulges and resultant nerve impingement, a compression fraction in her spine, and tendinitis in her right shoulder, to the accident.
C. Medical Treatment:
The plaintiff was transported to the hospital immediately after the accident, but was discharged with no new diagnoses after her CT scans and x-rays were negative for any fractures or bleeds. She met with her primary care physician one month later, who indicated that her back pain was chronic and predated the accident. She then began physical therapy, and submitted to four separate medical evaluations by physicians in separate fields with separate specialties—each of which concluded that her symptoms were not caused by the accident. After almost one year after the accident, she was diagnosed with a bicep tear and osteoarthritis on her right side.
D. Element #1 – Objective Manifestation:
In holding that the plaintiff did not suffer any objectively manifested impairments as a result of the accident, the court reasoned that “[f]our independent medical evaluations by physicians in separate fields and specialties concluded that plaintiff was not disabled and that her symptoms were not caused by the accident. Dr. Nathan Gross could not exclude the possibility that plaintiff suffered a strain to her cervical or lumbar spine during the accident, but concluded that the accident would not have led to worsening of plaintiff’s spinal conditions. Dr. Gross did not consider plaintiff disabled and concluded that the records did not establish shoulder pain in close proximity to the accident, and even in the absence of trauma, it would not be unusual for plaintiff to have some degree of rotator cuff pathology given her age and diabetes . . . The only evidence that might support plaintiff’s position is Dr. Gilreath’s 'Attending Physician’s Report' and 'Disability Certificate.' His diagnosis was traumatic injury to multiple areas, including plaintiff’s back and extremities and he checked 'YES' in response to the question 'ARE SYMPTOMS AND DIAGNOSIS A RESULT OF THE ACCIDENT?' He noted plaintiff’s past surgery, but indicated that she had increased pain since the accident. He marked plaintiff as disabled from the date of the accident to present, and signed a disability certificate which indicated that plaintiff was disabled from housework from the date of the accident to present. However, these documents were not signed4 until March 2018, and are contradicted by Dr. Gilreath’s prior, post-accident diagnosis of plaintiff’s back pain, which described the pain as chronic, as opposed to traumatic. Considering this evidence in a light most favorable to plaintiff, reasonable minds could not differ as to the conclusions to be drawn from the evidence. Dextrom v Wexford Cty, 287 Mich App 406, 416; 789 NW2d 211 (2010) ('A question of fact exists when reasonable minds could differ as to the conclusions to be drawn from the evidence.'). Plaintiff fails to show any objectively manifested impairment evidenced by actual symptoms or conditions that someone other than she would observe or perceive as impairing a body function. McCormick, 487 Mich at 196.”
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
In holding that the plaintiff’s claimed injuries did not affect her general ability to lead her normal life, the Court reasoned, “The outpatient rehabilitation medical records provided a long list of things that plaintiff had difficulty doing after the accident, as well as things she could no longer do. She had difficulty with the following tasks: cutting with a knife, putting on her clothes and jewelry, styling and washing her hair, applying makeup, cleaning herself after using the bathroom, making her bed, preparing meals, turning the key in the ignition, fastening her seatbelt as a driver, and carrying light grocery bags. Plaintiff could no longer do the following tasks: taking off winter boots, changing bed sheets, vacuuming, emptying the dishwasher and putting the dishes away, cleaning the kitchen, lifting pots and pans, driving long distances, fastening her seatbelt as a passenger, opening and closing the passenger side door, yardwork and gardening, taking out the garbage, opening new bottles or jars, and sewing. However, the evidence shows that these are the same things she had difficulty doing before the accident. Any additional restrictions plaintiff faces are those she has imposed on herself and 'do not establish the extent of any residual impairment.' McDanield, 268 Mich App at 282. Accordingly, reasonable minds could not differ as to the conclusion to be drawn from the evidence: plaintiff does not suffer from an accident-related impairment which imposed a change in her lifestyle.”
G. Other Comments:
Judge Jansen dissented from the majority on the basis that she believed a genuine issue of material fact existed “regarding whether plaintiff suffered a serious impairment of a body function.” In doing so, Judge Jansen first noted that under the case of Fisher v Blankenship, 286 Mich App 54, 63 (2009), “the aggravation or triggering of a preexisting condition can constitute a compensable injury.” Judge Jansen then noted that “[h]ere, there is conflicting record evidence regarding whether the accident caused plaintiff’s symptoms or exasperated her problems, thereby creating a question of fact, and making summary disposition inappropriate.” Id. at *1, citing Patrick v Turkelson, 322 Mich App 595, 605-06 (2018) for the proposition that “where evidence is conflicting, summary disposition is improper.”
