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Spikes v Smith (COA – UNP; 11/24/2020; RB #4185)


Michigan Court of Appeals; Docket # 346524
Judges O’Brien, Redford, and Stephens
Official Michigan Reporter Citation; Not Applicable; Link to Opinion; Link to Dissent

General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]

Not Applicable

A. Disposition:
In this 2-1 per curiam unpublished opinion (with Judge Stephens dissenting), summary disposition for defendant was AFFIRMED because plaintiff failed to present sufficient evidence to support a finding that her claimed impairments affected her general ability to lead her normal life.

B. Nature of Injury/Disability:
The plaintiff in this case was riding on a Detroit bus when a garbage truck driven by Cescily Spikes drove into the bus, which caused the bus to leave the roadway and crash into a large sign. When the bus abruptly stopped, it caused plaintiff to “strike the bus seat in front of her with her chin, left shoulder, hands, and knees.” After the accident, “plaintiff exited the bus and walked to the ambulance without problem. . . plaintiff presented with no acute, traumatic injury requiring treatment. At the hospital, she sat in a chair without distress, ambulated without difficulty, displayed normal knee flexion, and upon examination appeared normal without evidence of any significant contusions requiring treatment. . . . [T]he treating physician diagnosed plaintiff with cervical strain and contusions of her knees. Plaintiff declined pain medication at the hospital but received a prescription for such medications. The record does not reflect that she ever filled the prescriptions. The record also does not reflect that the hospital physician ordered or recommended that plaintiff follow up with her primary care physician or any specialist. The hospital discharged plaintiff in stable condition. The record reflects that the accident served as the cause in fact of minor muscle strain, cervical strain, and knee contusions. After discharge, plaintiff walked to the bus stop and took a bus home.” The Court further noted that plaintiff suffered tendonitis of her shoulder.

C. Medical Treatment:
Following the accident, plaintiff was treated by emergency responders at the scene. She was then taken by ambulance to the hospital where she was examined by a physician and discharged home. Plaintiff then saw a chiropractor and unspecified medical doctors. An MRI taken of her shoulder revealed tendinitis, which resulted from the accident. An MRI was also taken of her cervical and lumbar spine post-accident, which revealed that plaintiff suffered from chronic degenerative disc disease.

D. Element #1 – Objective Manifestation:
The Court of Appeals did not discuss this element in great detail. In that regard, the Court concluded that while many of plaintiff’s claimed impairments were not causally linked to the 2016 accident at issue in this case, “plaintiff’s left shoulder condition, however, appears to have arisen from [that] accident.”

E. Element #2 – Important Body Function:
The Court did not discuss this element.

F. Element #3 – General Ability:
The plaintiff in this case claimed that her injuries affected her ability to “do household chores, walk long distances, take her bike from her basement to ride it,” and she claimed that “her pain . . . limited her ability to engage in her normal life activities.” The Court of Appeals, however, concluded that the record in this case failed to support that contention. In reaching this conclusion, the Court noted that plaintiff’s contentions were directly contradicted by her pre-accident medical records and by “uncontroverted surveillance reports and video and photographic evidence.” In this regard, the Court noted:

Defendants submitted evidence including plaintiff’s preaccident medical records, plaintiff’s 2014 SSD benefits application and appeal documents, and surveillance reports with supporting video and still photographs that were uncontroverted by plaintiff. The record reflects that during 2014 plaintiff described in her application for SSD benefits that she led a very restricted life because of her various maladies. She claimed that she could not do household chores, could not sit or recline for long periods, could not walk long distances, could not lift more than two pounds, and that she suffered from serious physical disabilities establishing her need and entitlement to disability benefits. For her appeal of the Social Security Administration’s denial of her original application, plaintiff reiterated similar self-described serious limitations sufficiently to obtain the grant of disabled status warranting receipt of SSD benefits. During her deposition, plaintiff described the same or similar limitations that she claimed affected her general ability to lead her normal life, but she attributed those limitations to the 2016 accident despite having experienced the same before the accident. Her SSD benefits application and her historic medical records contradicted her cause and origin theory of her maladies and contradicted her postaccident claim that the accident affected her general ability to lead her normal life. Plaintiff’s preaccident description of her life limitations compared with her postaccident description of the same indicates that the 2016 accident did not affect her preaccident normal life.

Further, the uncontroverted surveillance reports and video and photographic evidence demonstrated that plaintiff did not appear to suffer from impairments that affected her general ability to lead her normal life. Plaintiff walked extensive distances, crossed roads quickly to avoid traffic, entered and exited buses to transport her to appointments and to shopping. The evidence established that plaintiff carried packages, her purse, and an umbrella without difficulty while walking for extended periods. Plaintiff’s contentions to the contrary were unsupported by evidence.

G. Additional Comments:
Judge Stephens dissented from the majority and concluded that the evidence in this case created a question of fact.

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