Michigan Court of Appeals; Docket # 351140; Unpublished
Judges Letica, K. F. Kelly, and Redford; 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In this unanimous per curiam unpublished opinion, summary disposition for defendant was AFFIRMED because plaintiff failed to “demonstrate an objective impairment of a body function.”
B. Nature of Injury/Disability:
The plaintiff in this case had “an extensive history of physical and mental health issues.” She was further receiving social security disability benefits after a determination by the Social Security Administration that plaintiff “suffered from obesity, degenerative disc disease of her lumbar spine, facet joint arthropathy, a herniated disc of the lumbosacral spine, chronic post-traumatic stress disorder (PTSD), major depressive disorder, panic disorder with agoraphobia, bipolar disorder, and a personality disorder. Plaintiff has not worked since.” Prior to the accident, plaintiff also underwent two separate surgeries for a full replacement of her right and left knee. Approximately a year after the second knee replacement, plaintiff was struck by the defendant in a parking lot while she was a passenger in a motor vehicle. Plaintiff claimed that during the accident “her left leg hit the console and front dashboard of the car and her right wrist hit the dashboard as well.” Immediately after the accident, “plaintiff vomited out of the car’s window and felt pain, nausea, and fear.” Plaintiff also testified that she “experienced a panic attack” later that evening. The Court further noted that the plaintiff’s daughter observed a disturbance to her left knee incision, and plaintiff testified that her “left knee was newly red and swollen.” In addition to the foregoing, plaintiff further claimed that the accident caused her to suffer an aggravation of pre-existing neck and back injuries, which the Court did not further specify. Plaintiff also claimed that she suffered an aggravation of pre-existing mental health issues. Altogether, the Court summarized plaintiff’s claimed impairments as: “(1) re-injury to her left knee and left-knee replacement, associated swelling, loss of range of motion, and functional difficulties; (2) acute aggravation of pre-existing neck and back strain; (3) aggravation of sleep dysfunction and nightmares; (4) aggravation of PTSD and associated symptoms; and (5) MRI-confirmed small nonspecific 9 mm defined T1 hypointense/T2 hyperintense lesion with joint effusion. Here, plaintiff failed to present objective evidence that the subject accident caused any of these alleged impairments, either physical or mental, in order to establish tort liability.”
C. Medical Treatment:
Approximately five days after the accident, plaintiff underwent an examination of her left knee, which revealed that plaintiff “had a range of motion of 0 to 95 degrees and that [her] artificial knee was in good position and alignment with no evidence of periprosthetic fracture from [the] recent motor vehicle accident.” A subsequent examination in the weeks that followed concluded that “plaintiff was on schedule, doing well clinically, and could walk without the assistance of a walker.” Plaintiff further underwent physical therapy, which she was discharged from approximately two months after the accident. From there, “plaintiff received mental health treatment and treatment for her knee issues, [which] primarily focused on her right knee.” Approximately one year after the accident, plaintiff underwent an MRI which revealed various conditions, which the Court described as “[a] small nonspecific 9 mm well-defined T1 hypointense/T2 hyperintense lesion is seen anteriorly, in the distal metaphysis of the femur which is partially obscured by susceptibility artifact. It demonstrates no associated marrow edema and overall has the appearance of a nonaggressive bone lesion. . . . The visualized portions of the quadriceps/patellar tendons are grossly intact. . . . There is a small knee joint effusion, partially visualized. Clinical correlation is recommended for its etiology.”
D. Element #1 – Objective Manifestation:
In holding that plaintiff failed to present sufficient evidence to satisfy this element, the Court first concluded that plaintiff failed to present evidence that her claimed aggravation to her left knee injuries was objectively manifested. The Court then found that while plaintiff offered MRI evidence as discussed above, it was nevertheless “impossible to determine whether plaintiff’s conditions noted in [that] MRI were related to the accident.” The Court further noted that plaintiff’s medical records “never noted that the accident had any real impact on [her] recovery from her left knee replacement.” The Court then observed that “absent evidence demonstrating that the condition of plaintiff’s left knee deteriorated because of the accident, and not because of her chronic conditions, plaintiff cannot establish the causation necessary to recover on the basis of her left knee condition. . . . Therefore, plaintiff has failed to demonstrate any objectively manifested impairment of a body function.” The Court similarly concluded that plaintiff failed to offer sufficient evidence that she suffered an aggravation of her mental disorders. In so concluding, the Court stated “even assuming that plaintiff’s sleep disturbances were a physical symptom of mental distress caused by the accident, plaintiff has failed to demonstrate any objective aggravation of her mental conditions after the accident. Plaintiff has suffered from severe mental health issues, first documented in 1997, due to abuse she suffered as a child. These issues included nightmares, sleep disturbances, and other PTSD-related symptoms. These symptoms were severe enough for plaintiff to receive social security disability benefits, in part, because of these issues in 2001. Although plaintiff testified that defendant’s actions directly after the accident invaded her nightmares and increased hper PTSD symptoms, there is no clinical indication of this. Plaintiff’s examination in October 2017, two months after the accident, made no mention of the accident as an aggravating factor. Plaintiff informed her mental healthcare provider that the accident had occurred, but did not mention that it was invading her mental state, despite mentioning another recent incident that had upset her. Absent any clinical indication that the accident aggravated plaintiff’s already severe mental conditions, she cannot recover on this basis. Wilkinson, 463 Mich at 394-395. Therefore, plaintiff has failed to demonstrate an objectively manifested emotional or mental impairment.”
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
Although the Court found that summary disposition was properly granted below based on the plaintiff’s failure to satisfy the first McCormick element, objective manifestation, the Court noted in footnote 3 of its opinion that the record was further lacking any evidence to satisfy the general ability element under McCormick. In this regard, the Court stated in footnote 3, “upon our own independent examination of the record, we also agree with the trial court that plaintiff failed to meet McCormick’s third prong because there is no evidence that plaintiff’s ability to live her normal life, pre-accident, had been impacted.”
