Michigan Court of Appeals; Docket # 342911; Unpublished
Judges Ronayne Krause, Meter, and Gleicher; 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(5)**]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)**]
Important Body Function Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion involving a case where a no-cause verdict was rendered for Defendant following a jury trial, the Court of Appeals AFFIRMED the denial of plaintiff’s request for a directed verdict, because “questions remained regarding the extent and duration of plaintiff’s injuries and the impact, if any, those injuries continued to have on plaintiff’s life.”
B. Nature of Injury/Disability:
The plaintiff in this case suffered from a “labral tear and a bruised or injured AC joint,” requiring him to undergo “surgery and physical therapy.” Following the surgery, “plaintiff was restricted from lifting, pushing, or pulling objects, and lifting his arm too far above his shoulder for six weeks. He was prescribed physical therapy for approximately 6 to 10 weeks, but actually underwent physical therapy for approximately 12 months. He was also restricted from work until September 2015. Although plaintiff did not regularly attend physical therapy, which delayed his recovery, there was no dispute that it would have taken him approximately three months to recover, even had he attended physical therapy as prescribed.”
C. Medical Treatment:
The plaintiff in this case underwent surgery wherein Dr. Suleiman “cleaned up the inflammation at the AC joint, removed the bone chips, and repaired the shoulder with use of anchors.” After the surgery, plaintiff was “prescribed physical therapy for approximately 6 to 10 weeks, but actually underwent physical therapy for approximately 12 months.”
D. Element #1 – Objective Manifestation:
The Court concluded that while questions of fact existed regarding the impact that plaintiff’s injuries had on him, there was nevertheless “no question of fact that the plaintiff had an objectively manifested impairment. . . .” In doing so, the Court noted that “it is undisputed that, as a result of the accident, plaintiff suffered a shoulder injury that resulted in him undergoing surgery and physical therapy. Dr. Suleiman diagnosed plaintiff with a labral tear and a bruised or injured AC joint, and Dr. Suleiman performed surgery on plaintiff on December 9, 2014. He cleaned up the inflammation at the AC joint, removed the bone chips, and repaired the shoulder with the use of anchors. . . . Although Dr. Kohen did not believe that plaintiff had a SLAP tear, he testified that, as a result of the accident, plaintiff had a Grade 1 AC separation. Dr. Lennox testified that plaintiff had joint bruising and that a SLAP tear was possible.” The Court further noted that plaintiff’s shoulder injuries were “observable by MRI and actual symptoms that someone else would perceive as impairing body functions, such as being able to lift his arm and lifting weight.”
E. Element #2 – Important Body Function:
The Court further recognized that the plaintiff’s shoulder injuries involved an important body function, as a matter of law. In doing so, the Court concluded that “being unable to lift his arm and weight were of consequence to [plaintiff’s] ability to work and engage in athletic activities.”
F. Element #3 – General Ability:
In holding that questions of fact were properly submitted to the jury regarding whether he satisfied the general ability element under McCormick, the Court noted that “plaintiff claimed that he suffered residual and permanent impairments to his shoulder and sought compensation for those impairments. The residual-impairments issue was highly contested at trial. On the basis of plaintiff’s most recent MRI, Dr. Singh recommended additional physical therapy; Dr. Kohen, however, did not see any arthritic change or impingement on plaintiff’s most recent MRI. Moreover, plaintiff complained of continued pain and limitations, including at the time of trial, but was able to return to his pre-accident activities in September 2015 and was also observed carrying heavy items about that time. This Court has concluded that, when a factual issue exists regarding the nature and the extent of an injury, particularly regarding whether objectively manifested abnormalities continued to be impairments, a directed verdict is improper and the claim should be submitted to the jury.”
