Michigan Court of Appeals; Docket # 348072; Unpublished
Judges Gadola, Stephens, and Shapiro; 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:
Coordination of Benefits Act (MCL 500.251, Et Seq.)
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion, the Court of Appeals AFFIRMED summary disposition for defendant because the plaintiff failed to establish that his claimed impairments affected his general ability to lead his normal life.
B. Nature of Injury/Disability:
Plaintiff claimed injuries to his low back, right hip, and shoulders. He alleged that the accident caused an “aggravation of pre-existing pathology in his low back and right leg,” which problems began “at least a year prior to the accident when he was 72 years old.” The Court noted that “all the limitations he described were present and repeatedly recorded in his pre accident medical records.” As to plaintiff’s shoulder, “[h]e testified that he cannot raise his elbows above his head and that when he lays on his shoulder while sleeping it becomes aggravated. Plaintiff described confronting ‘mild’ pain while dressing himself, and explained, ‘I can get over it because I know I have to get to work.’ Plaintiff described using his arms to wash his hair while showering as ‘painful,’ but not so much as to prevent him from doing it. Plaintiff further reported that he ‘basically can’t do any lifting now’ except for such ‘minimal things’ as lifting his briefcase as part of going to work. According to plaintiff, he could not reach ‘very high’ to put things away in a cabinet because of the condition of his shoulder, and so tended to keep thing [sic] ‘low rather than reaching up,’ and while shopping sometimes asked others to retrieve items from the shelves for him.”
C. Medical Treatment:
The Court did not discuss the plaintiff’s medical treatment in detail, but noted that he attended physical therapy both before and after the accident for similar issues relating to his back and leg. The Court also noted that plaintiff was first seen by an orthopedic surgeon for his right shoulder more than six months after the accident.
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 affirming summary disposition for defendant, the Court of Appeals held that “[e]ven assuming that plaintiff’s shoulder impairment was caused by the accident, his testimony did not create a question of material fact regarding the effect of the shoulder impairment on his general ability to lead his normal pre-accident life.” In so holding, the court noted that “after the accident, plaintiff quickly resumed living his normal life of working full-time as an accountant, watching television and reading in the evenings, and otherwise engaging in his daily living activities, albeit with some pain. As with plaintiff’s other impairments, there was no evidence that the shoulder impairment affected his ability to perform his work, and the impairments described do not rise to a level that it affects his ability to lead his normal life. . . . In sum, the physical therapy records, as well as the physical therapist’s testimony, show that plaintiff experienced very similar pre- and post-accident functional limitations relating to his back and leg impairments. Further, plaintiff’s present symptoms as testified to at his deposition were in nearly all respects the same as the symptoms he had before the accident. His shoulder problems, assuming they were caused by the accident, are not sufficient to meet the threshold requirements.”
