Michigan Court of Appeals; Docket # 346056; Unpublished
Judges Borrello, O’Brien, and Cameron; 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In this unanimous per curiam unpublished opinion, the Court of Appeals REVERSED summary disposition for defendant because “a genuine issue of material fact exist[ed] concerning whether Hagerman’s general ability to lead his normal life was affected by the alleged accident-related injuries.”
B. Nature of Injury/Disability:
Following the subject accident in this case, the plaintiff reported neck pain and was later “diagnosed with a sprained ankle, a cervical strain, straightening of the cervical lordosis, cervicalgia, and a shoulder strain.” He further “reported that he suffered from migraines after the accident.” Plaintiff testified that “after the accident, he was unable to work for 30 days because of the pain he was experiencing in his neck.” He further testified that “he suffered pain in the morning while he was getting out of bed and getting dressed. [He] testified that he no longer played basketball or football or swam long distances. He was also unable to lie on his left side or watch movies in a movie theatre because of the pain and discomfort that he experienced. Hagerman testified that he could not walk his dogs as often or as far and that he struggled with performing certain chores.”
C. Medical Treatment:
Plaintiff was treated at the hospital following the accident, where he was diagnosed with the aforementioned ankle, shoulder, and spinal injuries. He later submitted to an independent medical examination wherein the physician noted that the plaintiff’s cervical sprain was related to the accident, and that his “prognosis was excellent.” The physician did not believe any additional “treatment was necessary or that temporary or permanent restrictions should be placed on Hagerman.”
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 summary disposition as improperly granted below, the court concluded that when the evidence in this case was properly viewed “in the light most favorable to Hagerman, . . . the trial court erred in concluding that [his] injuries did not affect his general ability to lead his normal life.” In so holding, the court reasoned, “Hagerman testified that he did not work for 30 days as a result of his accident-related injuries. Although [Defendant] accurately notes that Hagerman was not told by a doctor that he could not work for 30 days, we conclude that this is not dispositive. Hagerman testified that his doctor instructed him to take a week or two off of work. When Hagerman attempted to return to work, he was sent home due to the fact that he was limping and experiencing pain. The following day, Hagerman expressed that he did not believe that he would be able to work because of the pain he was experiencing. As a result, Hagerman was given a temporary leave of absence without pay. Hagerman testified that, when he returned to work, he was permitted to ‘skip’ a certain job because it caused pain to his shoulder.”
G. Other Comments:
After rendering its principle holding, the Court of Appeals went on to emphasize that central to the McCormick threshold is a recognition that there is no “temporal requirement” regarding how long an impairment must last. In this regard, the court noted, “Although Hagerman only missed 30 days of work, in McCormick, our Supreme Court explicitly stated that ‘the statute does not create an express temporal requirement as to how long an impairment must last in order to have an effect on ‘the person’s general ability to live his or her normal life.’ McCormick, 487 Mich at 203. Furthermore, Hagerman did not need to show that his general ability to lead his normal life had been ‘destroyed,’ and there ‘is no quantitive minimum as to the percentage of a person’s normal manner of living that must be affected. Indeed, a plaintiff can meet the third prong by showing impairment for a relatively short period of time. See e.g., Piccione v Gillette, 327 Mich App 16, 21-22 (2019).”
The court further made it clear that the absence of physician-imposed restrictions does not preclude a person from meeting the threshold under McCormick, and that any holding to the contrary is in conflict with published Court of Appeals decisions interpreting the McCormick threshold. Specifically, the Court of Appeals recognized in footnote 4 of its opinion that the defendant “cites various unpublished opinions of this Court in support of the propositions that ‘self-imposed’ limitations do not count as an impairment on the ability to lead a normal life, and that serious impairment may not be predicated on the inability to do activities that have not been attempted since the injury. However, to the extent that there is a conflict between Piccione and the unpublished opinions cited by Kakar, Piccione controls.”
