Michigan Court of Appeals; Docket #354502; Unpublished
Judges Stephens, Sawyer, and Servitto; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
Aggravation of Preexisting Conditions [§3105(1)]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
Permanent Serious Disfigurement Definition [§3135(1)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Arturo Zavala’s first-party action against Defendant Trinity Cab Company (“Trinity”), but affirmed the trial court’s summary disposition order dismissing Plaintiff Valerie Zavala’s third-party action against Trinity. As to Arturo’s claim, the Court of Appeals held that a question of fact existed as to whether his aggravation of a pre-existing eye injury was “causally connected” to the subject incident such that he would be entitled to no-fault PIP benefits pursuant to MCL 500.3105(1). As to Valerie’s claim, the Court of Appeals held that she failed to present sufficient evidence to create a question of fact as to whether her knee injuries were objectively manifested for purposes of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010), and that her chipped tooth did not constitute a permanent serious disfigurement.
Valerie and Arturo Zavala were riding in the back of a Trinity taxi cab when the cab driver began driving erratically through a parking lot. Valerie allegedly “rolled forward twice,” injuring her knees and cracking a tooth. Arturo allegedly hit his head on the inside of the cab and claimed that this caused him to eventually go blind. Notably, Arturo had type 2 diabetes which affected his eyesight and led to his being diagnosed with “diabetic retinopathy” and “tractional detachment” in his left eye long before the subject incident. His right eye, meanwhile, was prosthetic, having been injured when he was young. In the Zavalas' subsequent first- and third-party actions against Trinity, Trinity moved for summary disposition, arguing, first, that Arturo failed to establish that his blindness was “causally connected” to the taxi incident for purposes of no-fault entitlement. In support of this argument, Trinity adduced the testimony of a retained medical examiner who denied that the incident caused the decline in Arturo’s eye health, as well as the testimony of Arturo’s own ophthalmologist, Dr. Xihui Lin, who testified that it would be partly speculative to say, with medical certainty, that the subject incident caused Arturo’s decline in eye health. Trinity argued, second, that Valerie failed to establish that she had suffered a serious impairment of body function or serious permanent disfigurement in the incident. The trial court agreed and granted Trinity’s motion in both regards.
The Court of Appeals reversed the trial court’s summary disposition order with respect to Arturo’s injuries, observing, preliminarily, that, in order to be entitled to no-fault PIP benefits for the deterioration of his eyesight, Arturo would have to establish that said deterioration was “causally connected” to the taxi incident for purposes of MCL 500.3105(1). In this regard, the Court of Appeals held that Dr. Lin’s testimony was sufficient to create a question of fact as to whether the deterioration in Arturo’s eyesight was caused by the subject incident. Even though Dr. Lin testified that he would be “partly” speculating if he stated, with medical certainty, that the decline in Arturo’s eyesight was the result of the subject incident, he testified that it would not be “pure” speculation, because Arturo’s new symptoms—namely floaters—were consistent with trauma, and Arturo had not suffered any other documented traumatic event in the approximately five years prior to the subject incident. Moreover, Dr. Lin noted that a 2012 injury had stabilized Arturo’s left eye condition, and that, as of his last pre-incident ophthalmology appointment, he was not suffering from floaters.
“Arturo was diagnosed with retinal detachment and lens dislocation of the left eye years prior to the 2017 accident. A 2012 surgery stabilized those conditions until at least May 2017, which is the last documented visit Arturo had with an ophthalmologist before the accident. Arturo visited the Kresge Eye Institute in November 2017, after the accident, with a complaint of floaters. Lin testified that floaters were early signs of a new retinal tear or hemorrhage. He stated that in Arturo’s case, a new retinal tear or hemorrhage could have been caused by any type of trauma. Lin gave multiple examples of such trauma including, worsening blood sugar, falling, getting into a fight, being hit in the head, and vigorous shaking of the head. The record indicates that Arturo’s condition was stable in May 2017 and had been stable for three to four years prior. Lin testified that something occurred around the time frame of the accident that disturbed that stability. He noted that diabetic changes and severe shaking or trauma could cause the destabilization of Arturo’s eye. There was no evidence in the record that Arturo’s diabetic condition changed, that he was involved in a fight, or fell down in the time period between the cab incident and the emergence of floaters. While neither Valerie nor Lin could testify as to the impact of the accident on Arturo, Arturo testified he hit his head in the cab, which he described as ‘bang on my eye’. Thus, there was only one documented traumatic event between the May 2017 and November 2017 eye appointments—the vehicle incident. Reasonable minds could disagree as to whether this event sufficed as trauma causing or contributing to a new retinal tear or hemorrhage. Lin testified that it would not be pure speculation to relate what happened to Arturo’s eye to the accident because Arturo ‘had new symptoms after it was documented that he had new floaters.’ While the doctor also testified that he would be partly speculating if he stated with a degree of medical certainty that Arturo’s new symptoms were related to the November 2017 incident, ‘medical certainty’ is not the required standard of causation.
We understand that Trinity’s expert, Dr. Sheldon Gonte, opined that Arturo’s left eye was destined for retinal detachment. However, he concurred with Lin that falling and sudden movements could worsen the retinal detachment. He offered other events such as natural disease progression, the diabetes retinopathy, the uveitis, or just being post-op from cataract surgery, as all possible causes of Arturo’s retina detachment and decreased vision. Again, there was no evidence of other trauma or diabetic instability, outside of the affirmative testimony that the cab incident was a significant traumatic event. Based on this evidence, a genuine issue of material fact exists regarding whether the vehicle accident aggravated Arturo’s preexisting conditions or caused his new injuries.”
The Court of Appeals affirmed the trial court’s summary disposition order with respect to Valerie’s injuries, however, holding, first, that Valerie’s knee injuries were not objectively manifested. In a visit to the hospital the day after the incident, she displayed a normal range of motion and no swelling, and the imaging performed on her knees revealed only degenerative conditions. She was released from the hospital with a diagnosis of a knee contusion, and although she testified that her primary care doctor told her that she would need surgery on her right knee to stop her pain, the Court of Appeals determined that “the record contains no admissible evidence that a physician determined that surgery was needed, [nor] was there an explanation as to why surgery was needed.”
“Valerie offered sworn testimony in support of her claim that she was unable to provide care for her son and that she had difficulty with activities of daily living. Thus, she met the burden of going forward as to her claim that her ability to lead her normal life was affected. There is no contest to the use of one’s knee as an important body function. However, the record is devoid of proof of any impairment that was objectively manifested. It is worthy to note that Valerie suffered from knee pain before the vehicle incident however, that is not dispositive of her claim. ‘[T]he aggravation or triggering of a preexisting condition can constitute a compensable injury.’ Fisher v Blankenship, 286 Mich App 54, 63; 777 NW2d 469 (2009). ‘Regardless of the preexisting condition, recovery is allowed if the trauma caused by the accident triggered symptoms from that condition.’ Wilkinson v Lee, 463 Mich 388, 395; 617 NW2d 305 (2000). Valerie testified that she went to Southshore Oakwood Hospital the day after the vehicle incident for pain and swelling in both her knees. The medical record from that visit notes the physical examination where she displayed a normal range of motion and no swelling. The imaging done at the hospital on that date demonstrated degenerative conditions. She was released with a diagnosis of knee contusion. There are no notations in her medical records of any objective manifestation or aggravation of her previous condition, much less aggravation occasioned by the cab incident. Valerie testified that her primary care physician told her she needed surgery on her right knee to stop the pain. However, the record contains no admissible evidence that a physician determined that surgery was needed. Neither was there an explanation as to why surgery was needed. Valerie’s subjective complaints of pain alone were insufficient to show a serious impairment.”
The Court of Appeals next rejected Valerie’s contention that her chipped tooth constituted a permanent serious disfigurement. Valerie relied on the case of Fisher v Blankenship, 286 Mich App 54 (2009) in support of her argument that the removal of teeth constitutes a permanent serious disfigurement as a matter of law, but the Court of Appeals held that Fisher created no such precedent. In Fisher, the plaintiff’s tooth injury required that he get all of his upper teeth removed which, absent a dental appliance, would have significantly, negatively altered his physical appearance to the casual observer. In this case, Valerie suffered only a single cracked tooth that her dentist bonded to the one next to it. More importantly, Valerie did not attach a picture of her tooth injury to her response brief to Trinity’s motion for summary disposition, a failure which the Court of Appeals deemed “fatal.”
“Fisher does not support the proposition that ‘[t]he removal of teeth has been found to represent a permanent, serious, disfigurement as a matter of law.’ Fisher, like many cases, was fact-dependent. In Fisher, the plaintiff suffered a cracked tooth in his accident. The treatment for that cracked tooth required removal of all of his upper teeth and the use of a dental appliance. Thus, the injury in Fisher resulted in a permanent injury and one which without the denture installation negatively altered the plaintiff’s physical appearance upon casual observation. Valerie, like the Fisher plaintiff, suffered a cracked tooth that was extracted. It was however, a singular tooth and her dentist bonded that tooth to the one next to it. No picture was appended to the plaintiffs’ responsive brief to the MCR 2.116(C)(10) motion upon which the court could determine if there was a colorable claim of disfigurement. The failure to produce evidence supporting their claim was fatal.”
