Michigan Court of Appeals; Docket # 350184; Unpublished
Judges Markey, K. F. Kelly, and Tukel; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)**]
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In this unanimous per curiam unpublished opinion, summary disposition for defendant was AFFIRMED because the plaintiff failed to present sufficient evidence to support a finding that his claimed impairments: (1) were objectively manifested; and (2) affected his general ability to lead his normal life.
B. Nature of Injury/Disability:
The plaintiff in this case was an over-the road trucker, who was injured while driving his truck. At the scene of the accident, plaintiff was bleeding in the back of his head. He claimed that he suffered “neck, shoulder, and back injuries, including disc protrusions at C3-C4 and L1-L2,” and that as a result his injuries, he “worked less hours, he did not pick up his children, and he did less housework.” After the accident, “plaintiff hired someone to mow his lawn, and his doctor instructed him ‘not to pick up something heavy.’” The court further noted that “Plaintiff had a gym membership and went ‘every now and then.’ A doctor did not recommend that plaintiff stop or reduce his driving, but plaintiff reduced his trips because he ‘cannot drive long.’” The court also noted that “Plaintiff wore a back brace that was given to him by his doctor,” and that the plaintiff further claimed that “his hands felt numb, and he experienced buzzing in his ears,” which affected his sleep.
C. Medical Treatment:
Immediately following the accident, plaintiff received treatment for his bleeding head at the scene of the accident. Three days later, he was seen by his primary care physician with complaints of neck, shoulder, and back pain. His physician “prescribed painkillers and advised plaintiff to go to the hospital for an x-ray, but he did not [do so] because of a lack of insurance.” The court further noted that it was recommended that plaintiff undergo surgery and injections. However, at the time of his deposition, he failed to undergo the “recommended surgery [and] injections and had not seen a doctor in over six months.”
D. Element #1 – Objective Manifestation:
In finding that the plaintiff failed to establish that his claimed impairments were objectively manifested, the court “conclude[d] that plaintiff arguably presented an objective manifestation of an important body function because the MRI revealed disc protrusions at C3-C4 and L1-L2, this evidence was insufficient to present a factual question for the jury. The McCormick Court noted that impairment relates to damages arising from an injury, and this showing generally must be established with medical documentation. In the present case, plaintiff demonstrated a disc protrusion in the MRIs, but did not establish through medical documentation that it caused him pain and required him to work less hours. Rather, plaintiff presented a subjective opinion of his injuries and did not present a medical opinion that work restrictions were necessary.”
E. Element #2 – Important Body Function:
The court did not discuss this element.
F. Element #3 – General Ability:
In concluding that the plaintiff failed to establish that his claimed impairments affected his general ability to lead his normal life, the court stated, “plaintiff reported that he worked less hours, he did not pick up his children, and he did less housework. Physically, he testified that his hands went numb and he heard buzzing in his ears when he went to sleep. However, plaintiff had not treated with any physician since it was recommended that he have surgery and there was no recent documentary evidence to support his claims; again, there were no work and physical restrictions placed on plaintiff by a physician to mirror his claim of impairment.”
G. Other Comments:
The Court further noted that Plaintiff attempted to improperly supplement his deposition testimony with a subsequent affidavit. In this regard, the court stated, “[t]o seemingly avoid the import of his deposition testimony, plaintiff submitted an affidavit that he experienced nightmares and sweating during sleep, he could no longer enjoy an ‘intimate’ relationship with his children because of his neck and back injuries, and he worked fewer hours, creating financial stress, and therefore, his physical conditions affected his general ability to lead a normal life. In his deposition, plaintiff was asked about his ability to sleep, and he merely cited a buzzing during sleep, not nightmares and sweating. Further, in his deposition, he merely cited an inability to pick up his children, not a lack of an intimate relationship. Irrespective of whether the difference between the deposition testimony and the affidavit can be deemed a contradiction as opposed to a supplementation, the trial court did not err in granting summary disposition because plaintiff failed to present objective evidence of an impairment that affected his general ability to lead a normal life. The affidavit did not contain particular facts and a foundation to support the threshold, . . . but contained conclusory statements that were devoid of detail.”
