Michigan Court of Appeals; Docket # 341695; Unpublished
Judges Tukel, Shapiro, and Gadola; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Dissent
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(7)]
Important Body Function 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In this 2-1 per curiam unpublished opinion (with Judge Shapiro dissenting), summary disposition for defendant was AFFIRMED because the plaintiff failed to present sufficient evidence to create a question of fact regarding whether he suffered an objectively manifested impairment of an important body function that affected his general ability to lead his normal life.
B. Nature of Injury/Disability:
The plaintiff in this case suffered from preexisting conditions described by the court as “long-standing spondylolitic spondylolistheses (a crack or stress fracture in one of the vertebrae) and radiographic abnormality.” He further was involved in several prior accidents. The plaintiff alleged that as a result of the subject accident giving rise to this appeal, he sustained injuries that the court described as “severe and permanent injuries, including injuries to his neck and shoulders.”
C. Medical Treatment:
Plaintiff did not receive any medical attention immediately after the injury, nor reported any injury to the police.
D. Element #1 – Objective Manifestation:
In holding that the plaintiff did not provide sufficient evidence to create a question of fact regarding whether he suffered an objectively manifested impairment, the court reasoned: “In this case, plaintiff failed to demonstrate before the trial court that he had a serious impairment of body function. With respect to the first prong of the test, defendant argued before the trial court that plaintiff had not demonstrated an objectively manifested impairment. Defendants relied in part on the report of Dr. Kwartowitz that plaintiff’s medical records and imaging studies are identical before and after the November 2013 collision. Defendants also submitted work records suggesting that plaintiff was able to perform the same job immediately after the collision as he had before the collision, and continued with his hobbies of dancing and professional bongo performance. Plaintiff did not thereafter refute this evidence by presenting evidence that plaintiff has an impairment that is objectively manifested.”
E. Element #2 – Important Body Function:
In reaching its holding, the court recognized “[w]ith respect to the second prong of the test, whether the impairment is important to the injured person given the relationship of the function to that person’s life, a neck and shoulder impairment arguably would be important to anyone, and perhaps particularly so to someone working in the construction industry and engaging in dancing and professional musical performance. Plaintiff, however, has not demonstrated that this important body function is impaired.”
F. Element #3 – General Ability:
The Court held that plaintiff did not provide sufficient evidence to create a question of fact regarding whether his claimed impairments affected his general ability to lead his normal life. After the accident, he continued to work his regular schedule and performed the same hobbies that he enjoyed before the accident. “With regard to the third prong, whether the impairment of an important body function affected plaintiff’s general ability to lead a normal life, plaintiff failed to demonstrate that his general ability to lead his pre-accident normal life was affected. In fact, the evidence suggests that plaintiff’s life was not affected at all. Although plaintiff in his deposition testified regarding the things he could not do, the evidence demonstrates that after the accident, he continued to work his regular work schedule until April 2014, when he reported that while working he heard his neck and shoulder “crack” and that the pain was so severe that he had to be driven to the hospital. He resumed work immediately with a lifting restriction, and on May 20, 2014, returned to work with no restrictions. Plaintiff also continued his recreational activities of dancing and playing bongo drums, attending in March 2016 the Michigan Dance Challenge, and performing percussion at dance venues in 2016 and 2017.5 Because there appears to be no change in plaintiff’s general ability to lead his normal life, the trial court did not err in granting defendants summary disposition, concluding that there was no genuine issue of material fact that plaintiff had not suffered a serious impairment of body function.”
G. Other Comments:
Judge Shapiro dissented after concluding that the decision of the majority is “inconsistent with the record evidence and the bedrock principle that summary disposition under MCR 2.116(C)(10) was not to be granted when there is a question of material fact.” Judge Shapiro then concluded that, for multiple specific reasons, “plaintiff has demonstrated at least a question of fact that the tears to his left rotator cuff and left shoulder labrum have affected his general ability to lead his normal life.” Then, in a very passionate concluding statement, Judge Shapiro went on to admonish that “[t]he majority opinion is wrong on the facts and on the law. Its review of the record is incomplete and unreliable; it gives the non-movant the benefit of all inferences; and it assumes facts that do not exist and ignores facts that do. Summary disposition was improperly granted and this case should be remanded for trial.”
