Michigan Court of Appeals; Docket # 342479; Unpublished
Judges Tuckel, Servitto, and Riordan; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
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)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion, directed verdict for plaintiff was AFFIRMED because the plaintiff presented sufficient evidence to establish as a matter of law that he suffered objectively manifested shoulder injuries that affected his general ability to lead his normal life.
B. Nature of Injury/Disability:
The plaintiff in this case suffered what the court described as “a tear in his left rotator cuff that required surgery to repair and a fracture to the talus in his left ankle that ultimately required an ankle fusion.” The plaintiff’s injuries affected his ability to live an active lifestyle, which included he had before the accident, which included engaging in “water skiing, snow skiing, hiking, hunting, running and jogging, and physical activities related to his family farm.” His injuries further affected his ability to work as a supervisor in a “company specializing in the erection of windmills.”
C. Medical Treatment:
The Court did not describe the nature of the plaintiff’s post-accident treatment.
D. Element #1 – Objective Manifestation:
In holding that plaintiff’s claimed impairments were objectively manifested, the Court reasoned that “Plaintiff suffered an objectively manifested impairment from the time of the injury until his rotator cuff and labrum tears in his shoulder healed following the shoulder surgery because plaintiff was quite limited in what he could do while injured. Defendant argues that plaintiff’s impairment was not objectively manifested because his shoulder healed following the surgery. However, there is no temporal framework included in the definition of ‘objectively manifested body function.’ MCL 500.3135(5) simply provides that the objectively manifested impairment of a body function must affect one’s general ability to lead his or her normal life, which is a separate inquiry under the test. De novo review of the entire record indicates that no genuine issue of material fact exists regarding whether plaintiff suffered an objectively manifested impairment as a result of the April 2012 accident.”
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
In holding that plaintiff’s claimed impairments affected his general ability to lead his normal life, the court reasoned: “Here, there is no material factual dispute with respect to plaintiff’s lifestyle both away from work and at work before the accident. Plaintiff enjoyed an active lifestyle away from work before the injury, including water skiing, snow skiing, hiking, hunting, running and jogging, and physical activities related to his family farm. At work, plaintiff worked for a company specializing in the erection of windmills and his duties included climbing hundreds of stairs and climbing in and out of heavy equipment. He was a ‘hands on’ supervisor who sometimes filled in for absent workers. He also inspected the work of others, which required him to climb and walk on uneven ground, and was on his feet much of the day . . . There is also no material factual dispute with respect to plaintiff’s lifestyle both away from work and at work after the accident. Plaintiff had a period of time that he could not use both his shoulder and his ankle because of the injuries. Relative to his personal life, he no longer water skied, hiked, ran, jogged, or performed many of the activities he had previously done on his farm. Plaintiff had difficulty climbing stairs because of the limited range of motion of his fused ankle and instability. He could no longer safely operate his motorcycle and because of the difficulty getting in and out of his boat, he sold the boat. He is routinely in pain, ranging from a 3 to a 7 on a scale of 1 to 10, and by the end of a normal day, he is in so much pain that his doctor prescribed 2250 milligrams of Motrin daily. Plaintiff can walk only 10 minutes before experiencing pain. Relative to his work life, plaintiff missed approximately eight months of work as a result of his injuries, surgeries, rehabilitation, and convalescence. He can no longer climb the stairs leading to the turbines at the top of the windmills, can no longer climb on and off heavy equipment, cannot perform as a ‘hands on’ supervisor, and has limitations as to where he can walk on job sites due to his inability to walk on uneven ground. Plaintiff has to perform much of his oversight and inspections from within his vehicle because of the pain and physical limitations that resulted from the ankle injury sustained in the accident. On the basis of these facts, plaintiff has shown that the impairment affected his general ability to lead his normal life because it influenced some of his capacity to live in his normal, pre-incident manner of living.”
