Michigan Court of Appeals; Docket # 319630; Unpublished
Judges Donofrio, Riordan, and Gadola; Unanimous; 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)]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals held that plaintiff did not present any evidence that his condition was caused by the auto accident, and therefore plaintiff did not satisfy the objective manifestation element of MCL 500.3135.
Plaintiff in this case was involved in a minor accident that did not result in significant damage to his vehicle. Following the accident, plaintiff presented to the hospital complaining of "a headache and neck and lower back pain." A CT scan revealed that plaintiff suffered mild preexisting degenerative changes to his lower cervical spine, “[with] no evidence of acute fracture or subluxation.” The next day, plaintiff followed up with his primary care physician, complaining of headaches and pain in his neck and throat. His primary care physician diagnosed him "with whiplash and a neck sprain." Plaintiff was prescribed "Tylenol with codeine and Valium as a muscle relaxant.” Two days after the accident, plaintiff returned to his physician complaining of neck pain. He was diagnosed with "continuing pain from whiplash," and was given a Toradol injection, and told to continue taking his medications. Plaintiff’s medical records revealed he had a history of fatigue and weakness, difficulty breathing, headaches, and muscle and joint pain. Three days after the accident, plaintiff returned to the hospital complaining of nausea and dizziness. Doctors determined that plaintiff’s condition "was a result of sensitivity to codeine and Valium and changed his medications." A few weeks later, plaintiff had an MRI of his spine, which revealed “[m]ultilevel degenerative disc disease and facet joint arthropathy” and “mild to moderate disc bulge with focal left foraminal disc protrusion component at L4-L5.” Four days later, plaintiff had another spinal MRI, which revealed “mild degenerative changes” and “a bulging disc at C6-7.” Neither of the reports identified the motor vehicle accident as the cause of plaintiff’s conditions.
Approximately five months after the accident, plaintiff sought treatment for shoulder pain. A doctor concluded there was “[s]mall fluid within [plaintiff’s] proximal biceps tendon.” Thereafter, plaintiff complained of numbness in his right hand. Approximately one year after the accident, plaintiff underwent a nerve conduction study "that showed some nerve abnormalities along his right wrist." Plaintiff was then diagnosed with "cervical radiculopathy." At his deposition, plaintiff complained of pain in his "back, neck, knees, and shoulders, numbness in his legs, genitalia, and right arm, headaches, and memory loss."
The Court of Appeals found that plaintiff failed to present any evidence that his condition was caused by the accident, and held that plaintiff therefore did not satisfy the objective manifestation element. In so holding, the Court reasoned:
"[P]laintiff presented no evidence that he suffered an objective injury resulting from the vehicle accident. The only documented manifestations of plaintiff’s injuries directly attributable to the accident were subjective symptoms of neck and back pain, headaches, and a diagnosis of whiplash in November 2011. Although objective tests later revealed nerve abnormalities and a bulging spinal disc, plaintiff presented no evidence that the accident caused these conditions. Accordingly, plaintiff failed to advance evidence of an objective impairment caused by the accident sufficient to satisfy McCormick’s first prong."
To satisfy the general ability element, plaintiff "testified that his ability to work, engage in recreational activities, and do household chores was affected by his back pain, headaches, and nerve problems." However, the Court of Appeals rejected these contentions and held that plaintiff failed to satisfy the general ability element. In so holding, the Court reasoned:
"Plaintiff testified that he jogged and played pick-up soccer before the car accident; however, medical records indicate plaintiff’s pre-accident activity level was 'sedentary' and plaintiff provided no evidence that he participated in physical sports with any frequency. Plaintiff testified that he could no longer do household chores after the accident, and provided doctor slips disabling him from doing housework and driving. Yet, plaintiff testified that he continued to drive, traveled to Canada three or four times a week, fed himself, dressed himself, and did his own shopping. When asked whether he could do dishes, plaintiff stated, 'I mean, I can. I can do dishes, but I would have the pain. I’m not paralyzed.' Plaintiff did not testify that he could not do laundry, but only stated the he had pain if he did laundry."
The Court of Appeals similarly rejected plaintiff’s contentions that his claimed injuries affected his ability to work. In doing so, the Court noted the reason that plaintiff was not working following the accident was “because his 'business stopped completely' because 'there was another company . . . that was taking the work.’”
After finding that plaintiff failed to satisfy the general ability element, the Court of Appeals affirmed summary disposition for defendant on the issue of serious impairment of body function.
