Michigan Court of Appeals; Docket # 345668; Unpublished
Judges Redford, Cavanagh, and Servitto; 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)**]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion, the Court of Appeals AFFIRMED summary disposition for defendant on the issue of serious impairment of body function because the plaintiff failed to satisfy the general ability element of McCormick as a matter of law.
B. Nature of Injury/Disability:
The plaintiff in this case suffered a severe “spinal cord injury” in a prior accident that occurred approximately 13 years before the present accident. As a result of this prior spinal cord injury, plaintiff suffered from pre-existing conditions, which the Court described as “an extensive history of low-back and leg pain.” Before the present accident, the “plaintiff underwent six low-back surgeries and had been placed on disabled status by his employer.” To satisfy the tort threshold requirement under McCormick, plaintiff argued that the present accident, which occurred in 2014, aggravated his pre-existing back conditions. In so arguing, the plaintiff claimed that his spinal pain had been improving up until the time of the 2014 accident, and that it “had worsened” after that. In support of this contention, the plaintiff contended “that his preaccident lifestyle consisted of attending physical therapy, going on daily walks, doing light housework, and following sports on television and the internet,” and that after the second accident, “all of his normal activities became considerably more difficult because of ‘all-encompassing pain.’ For a period, he was no longer able to attend physical therapy or do light housework. He also had increased difficulty sleeping.”
C. Medical Treatment:
The Court did not further describe the nature of the plaintiff’s post-accident medical treatment, and only noted that “Plaintiff was transported to the emergency room by ambulance immediately following the 2014 accident. He was x-rayed, given pain medication, and released the same day. His attending physician’s summary concludes: No apparent significant injuries other than musculoskeletal strain.” Plaintiff then underwent a seventh back surgery in 2017.
D. Element #1 – Objective Manifestation:
The Court did not discuss this element.
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
In holding that the plaintiff failed to satisfy the general ability element as a matter of law, the Court found that “[P]laintiff’s evidence is too vague and conclusory to create a factual dispute regarding whether his general ability to lead his normal life was affected by his impairment, even when viewing that evidence in the light most favorable to him. Plaintiff’s daily routine was highly similar before and after the 2014 accident: he tended to his chronic low-back pain by going to medical appointments and physical therapy, he took short walks, he occasionally did light housework, and he followed sports on TV and the internet.” The Court then further explained, plaintiff’s “statement of his preaccident household duties is so unassured that it is practically indistinguishable from his characterization of his postaccident duties. . . Plaintiff did not even recall that walks were a part of his daily routine until defense counsel reminded him that he had mentioned walks earlier in his deposition. . . Plaintiff testified that following sports teams on television and the internet was rendered unenjoyable by all-consuming pain[, but] was unable to point to any facts in support of his assertion.” On this basis, the Court held that plaintiff failed to demonstrate that his “already sedentary” lifestyle was actually affected by the second accident. In further support for this conclusion, the Court further pointed out that “nine months before the accident, plaintiff reported to his spinal surgeon that his pain was an 8 to 9 out 10 [sic] in his back and a 6 to 8 in his leg. He reported the same pain levels at multiple postaccident appointments. His preaccident and postaccident answers to his spinal surgeon’s low-back pain disability questionnaire were identical, with the exception that he reported sleeping only ¼ of [his] normal amount after the accident as opposed to ½ of his normal amount before the accident. It is simply not possible to articulate in a fact-specific manner how plaintiff’s normal life, which was already defined by his impairment before the 2014 accident, changed after the accident.” The Court of Appeals, therefore, held that summary disposition was properly awarded to the defendant.
G. Other Comments:
In addition to finding that plaintiff failed to satisfy the general ability element of McCormick, the Court of Appeals further held as a matter of law that plaintiff failed to establish a proximate causal connection between his claimed impairment and the subject accident. In reaching this conclusion, the Court relied extensively on plaintiff’s well documented pre-existing back injuries. The Court also found it to be noteworthy that “plaintiff testified that he only had one surgery as a result of the accident[, but his] medical records tell a different story.” After discussing plaintiff’s pre-accident condition in more detail, the Court held “there is no evidence on this record of any traumatic injury traceable to the 2014 accident.”
