Michigan Court of Appeals; Docket No 302717; Unpublished
Judges M.J. Kelly, Wilder and Shapiro; 2-1 (with Wilder dissenting in part); Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion:
; Link to Dissent:
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(7)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
TOPICAL INDEXING:
Not Applicable
In this unpublished 2-1 per curiam Opinion, regarding Plaintiff’s threshold claims for noneconomic loss, the Court of Appeals reversed the trial court’s grant of summary disposition in defendant’s favor on the issue of whether plaintiff suffered a serious impairment of body function and remanded for trial on the merits because “the State of Michigan did not contest that [plaintiff’s] injury was objectively manifested and affected an important body function, [and] her evidence was sufficient to establish a threshold injury” under the McCormick standard.
The plaintiff in this case was a 65-year-old woman who alleged that she “injured her right wrist” in an accident involving a state trooper. X-rays taken after the accident did not reveal any injury to her wrist; however, additional X-rays taken after the laintiff continued to complain of wrist pain revealed “an undisplaced fracture of the scaphoid bone in her right wrist.” The fracture was initially treated without surgery and plaintiff was prescribed a bone stimulator to encourage healing. However, the plaintiff’s wrist did not heal, and she eventually underwent surgery to correct the fracture. The plaintiff also underwent physical therapy. Documentation from plaintiff’s physical therapy sessions “showed that she had significant limitations to her ability to lead her normal life prior to the surgery.” Although plaintiff continued to work part time at St Mary’s Hospital following the accident as she had prior to the accident, she was “placed on limitations from a physician” following her surgery. Plaintiff also testified that she “still had a limited range of motion and achiness in her wrist” following the surgery, which affected her ability to play golf and tennis. In determining that the plaintiff presented sufficient evidence from which a reasonable jury could conclude that she suffered a threshold injury, the Court of Appeals noted that the State of Michigan did not contest that plaintiff’s injury was “objectively manifested” and that it “affected an important body function.” Accordingly, the only issue that was considered for purposes of this appeal was whether plaintiff’s injuries affected her general ability to lead her normal life. In concluding that the plaintiff presented sufficient evidence to meet the threshold, the Court of Appeals focused heavily on the time period before the plaintiff underwent surgery, as well as the surgery itself. In this regard, the Court noted:
“Ross presented evidence that her wrist was broken and that, despite efforts to get the wrist to heal on its own through the use of a bone stimulator and orthotic devices, she ultimately had to have surgery to correct the fracture. Ross also presented documentation from her physical therapy sessions that showed that she had significant limitations to her ability to lead her normal life prior to the surgery. The notes show that she had had some improvement, but that she still had numerous deficits: she had pain (ranging from four to seven on a scale of one to ten), problems with her range of motion and limitations on her ability to perform hygiene functions (brushing her teeth, combing her hair, putting on clothing, fastening buttons and zippers), prepare meals, lift, and write. These notes plainly establish that Ross’ wrist injury altered her normal manner of living in the months preceding her surgery. Further, the surgery itself involved significant limitations; aside from having to have a screw surgically implanted to secure her bone, she had to wear a cast for some time and had additional limitations on the use of her wrist until May 2005. Taken together, this evidence was sufficient to establish a serious impairment of body function.”
The Court further found it relevant that the plaintiff also “testified that she still has deficiencies in her range of motion in addition to pain and that, as a result, she cannot play tennis or golf” — noting that “even under the prior test stated in Kreiner v Fischer, 471 Mich 109 (2004), a plaintiff can establish a threshold injury by showing that he or she can no longer golf as a result a reduced range of motion.”
Based on the foregoing evidence, the Court found that the trial court erred in dismissing plaintiff’s threshold claims, explaining that:
“Here, the trial court erred by disregarding this evidence and instead focusing on Ross’ abilities after her successful surgery. By doing so, the trial court effectively required Ross to prove that her impairments were permanent, which she did not have to do. Id. at 203. Even if Ross had had a full recovery after her surgery—which is a matter of dispute—she nevertheless established a threshold injury on the basis of the evidence that she was impaired for more than one year. The evidence that her surgery was successful and that she regained significant function in her wrist goes to the extent of her damages; it does not establish that she did not suffer a threshold injury.”
To this end, because the evidence showed that plaintiff’s impairment had an influence on “some of her capacity to live her normal life” and given the fact that Plaintiff also presented evidence of residual impairment, the Court concluded that the “there can be no doubt that [Plaintiff] has met the threshold test stated in McCormick.”
Judge Wilder respectfully dissented, stating that:
"As the majority correctly identifies, the only element at issue was whether plaintiff’s injury affected her general ability to lead her normal life. However, I would conclude that the trial court properly determined that plaintiff failed to meet her burden for this element. . . . Plaintiff’s life changed following the accident, but she did not demonstrate that the accident affected her general ability to lead her normal life. Plaintiff continued to work at the same job and perform the same duties that she did before the accident. . . . Plaintiff did testify that she used to play golf and tennis a handful of times per year, but was unable to do so after the accident. Thus, the evidence submitted shows that plaintiff was still able to do everything she did prior to the accident, with the exception of playing golf and tennis.
Given the record, I would find that the trial court correctly concluded that plaintiff’s inability to participate in these occasional and infrequent activities did not affect plaintiff’s general ability to lead her normal life. Neither the No-Fault Act nor McCormick requires a finding that any impairment must qualify as a serious impairment of body function as long as the plaintiff is no longer able to engage in any activity, regardless of how minor a part of plaintiff’s life the activity had been. Even Williams v Medukas, 266 Mich App 505; 702 NW2d 667 (2005), which the majority cites, does not support the majority’s view. In Williams, the plaintiff, who was an avid golfer, was not able to play golf after the accident, when before the accident he played golf two or three times each week. Id. at 509. The Court, while finding that the injury affected the plaintiff’s general ability to lead his normal life, noted that “[w]hile these limitations might not rise to the level of a serious impairment of body function for some people, in a person who regularly participates in sporting activities that require a full range of motion, these impairments may rise to the level of a serious impairment of a body function.” Id. (emphasis added). The facts here are distinguishable from Williams because the plaintiff testified she previously only played golf and tennis once a month during the summer months."
