Michigan Court of Appeals; Docket # 346355; Unpublished
Judges Fort Hood, Beckering, and Boonstra; 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In this unanimous per curiam unpublished opinion, the Court of Appeals AFFIRMED the denial of summary disposition for defendant because conflicting evidence created a question of fact regarding whether plaintiff’s claimed injuries affected his general ability to lead his normal life.
B. Nature of Injury/Disability:
The plaintiff in this case was a motorcyclist, who was struck by a motor vehicle. He complained of back, neck, and shoulder pain. He was eventually diagnosed as suffering from “two bulging disks,” which the Court did not describe in more detail. Following the accident, the plaintiff claimed that “he had to fight through the pain and take sick leave from work in order to attend various doctors, chiropractors, occasional physical therapy” appointments. However, he was not placed on any work restrictions. Plaintiff testified that he struggled “to look up at work while doing tasks such as painting or working on ceiling tiles, and that doing so would aggravate his neck pain.” The Court further noted that following the accident, plaintiff was not able to complete a five-day motorcycle charity event, and that he had to stop riding on the third day of the event “because of his neck pain.” The Plaintiff testified that he was able to perform household chores; however, his wife testified to the contrary and claimed that he “was unable to do all of his household chores and activities at home after the accident.” Plaintiff’s medical records further indicated that his pain caused him difficulty while driving and caused him difficulty while sleeping.
C. Medical Treatment:
Following the accident, the plaintiff initially did not think that he was injured. However, later that day, he began to experience stiffening of the muscles in his back and neck. Approximately a month later, he “saw a chiropractor for the back and neck pain.” After seven or eight months of chiropractic care, his back pain caused by the accident resolved, but his neck pain persisted, radiating into his right shoulder, and sometimes down his right arm. Plaintiff, therefore, sought medical treatment with his primary physician, who referred him to a neurologist. The neurologist sent plaintiff to a pain clinic, where they administered epidural steroid injections in the base of his neck. The injections did not work. Plaintiff was sent to physical therapy from August 2016 to November 2016, but that did not relieve his neck pain. He was later diagnosed with two bulging disks in his neck in 2016, and in 2017, he was prescribed a TENS (transcutaneous electrical nerve stimulation) machine. His neck and shoulder pain later resolved after being involved in a second motorcycle accident, in which he suffered additional injuries requiring treatment.
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 presented sufficient evidence to create a question of fact on the general ability element, the Court found that “the record shows conflicting evidence regarding whether plaintiff’s impairment negatively affected his work, leisure, and family activities.” The Court then noted that “plaintiff presented medical records [that] supported [his] contention that following the 2015 accident, he experienced shoulder, neck, and back pain. The neck pain ranged from 3/10 at best and 9/10 at worst, and would be aggravated by flexion and movement. The records document that plaintiff’s neck pain caused by the bulging discs caused a limitation on functional activities such as sitting, household chores, and lifting, and that he was unable to work without pain. It also caused difficulty sleeping, turning his head, and driving.” Finally, the Court relied heavily on the testimony of plaintiff’s wife, noting that she testified during her deposition “that plaintiff was a really tough man who normally just ‘sucks it up’ and only complains if his pain is unbearable. In the six months after the accident, plaintiff complained of neck or back pain all the time, but it was usually the neck. She testified that he was unable to do all of his household chores and activities at home after the accident. She described him as a handyman and stated that he could not do ‘a lot of things’ anymore, even though he wanted to. She recalled a specific incident in the summer of 2016 in which they had to hire someone to put down a patio because he could not do it. Catherine testified that plaintiff used to take care of the lawn, and she would help. However, after the accident, Catherine had to take care of the lawn, and plaintiff would only help. Additionally, she testified that after the accident, plaintiff ‘didn’t get down on the floor as much as he used to with [their] grandchildren just because it bothered him. You know, everything hurt. He was not as patient with all of us as he used to be.’”
