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Rokosz v Labean, et al (UNP – COA 8/19/2021; RB # 4306)

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Michigan Court of Appeals; Docket #353043; Unpublished
Judges Markey, Shapiro, and Gadola; 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)**]
Causation Issues [§3135]

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In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Sheila Ann Rokosz third-party action against Defendants Derek Joseph Labean, Donald Labean, and Dawn Labean. The Court of Appeals held that Rokosz presented sufficient evidence to create a question of fact as to whether her injuries were caused by the subject collision and whether they constituted a serious impairment of body function pursuant to McCormick v Carrier, 487 Mich 180 (2010).

Rokosz was passing through an intersection when a vehicle driven by Derek Labean broadsided her, causing her vehicle to roll over multiple times before ultimately coming to rest, upside down, in a ditch. She was able to extricate herself from her upside down vehicle, but testified that multiple parts of her body, including her head, neck, and knee, were forcefully impacted during the crash and in her attempt to self-extricate. She then filed a third-party action against Labean and his parents, the owners of the vehicle, but after discovery, the Labeans moved for summary disposition, arguing that Rokosz failed to present sufficient evidence to create a question of fact as to whether her injuries were caused or exacerbated by the crash, and as to whether her injuries constituted a serious impairment of body function. Rokosz had a significant history of preexisting conditions in her knee and cervical spine, and as a result, the trial court granted the Labean’s motion for summary disposition. The trial court did not address the issue of causation, holding instead that the only objectively manifested impairment was to Rokosz’s vision, and that, because that that impairment did not affect her general ability to lead her normal life, the Labeans were entitled to judgment as a matter of law.

The Court of Appeals reversed the trial court’s summary disposition order, first addressing the issue of causation. As to Rokosz’s right knee, the Court noted that Rokosz had a total knee replacement approximately two years before the subject crash, but that she was recovering well and had virtually no problems between the date of the surgery and the date of the subject crash. It was later determined that Rokosz had a loose prosthesis in her knee, and thus, viewing the evidence in the light most favorable to Rokosz, the Court of Appeals held that a genuine issue of material fact existed as to whether she suffered a knee injury as a result of the collision. The Court noted that circumstantial evidence can be relied on to establish causation, and that the following circumstantial evidence weighed in favor of its holding: that Rokosz’s knee was doing well prior to the collision; her testimony that she struck her knee on the center console while self-extricating after the crash; and the fact that her knee pain suddenly reoccurred after the collision . Moreover, even the Labean’s retained expert’s opinion seemingly supported Rokosz’s argument regarding causation, as he averred that “ ‘it is extremely unusual for the locking mechanism on the prosthesis to fail,’ ” which the Court pointed out perhaps indicated that the injury was traumatically caused.

Viewing the evidence in a light most favorable to plaintiff, we conclude there is question of fact whether the knee difficulties she experienced following the accident and the loosening of the tibial component in her knee replacement were caused by the August 4, 2017 accident. The surgeon who performed plaintiff’s knee replacement in 2015 reported that plaintiff’s knee had been doing well prior to the accident. Plaintiff testified that she reinjured her knee when she unbuckled herself while upside down and her knee struck the console. The postaccident records indicate that she then developed, and consistently reported, knee pain. Circumstantial evidence may be relied on to establish causation. See e.g., Genna v Jackson, 286 Mich App 413, 417-418; 781 NW2d 124 (2009). Taken together, the lack of plaintiff’s knee complaints before the accident, her testimony that she hit her knee on the vehicle console, the physical therapy findings and the surgical findings allow for a reasonable inference that her knee complaints and subsequent surgery were caused, in whole or in part, by the accident. Defendants’ retained expert opined that the accident did not cause plaintiff’s “right knee polyethylene exchange,” however, he did not offer any support for that conclusion. Rather, he noted that “it is extremely unusual for the locking mechanism on the prosthesis to fail,” which would seem to support plaintiff’s claim that the failure was traumatically caused. In any event, the retained expert’s opinion merely creates a question of fact for trial.

As to Rokosz’s cervical spine injury, the Court of Appeals held that a question of fact also existed as to whether her preexisting cervical spine degeneration was exacerbated by the crash. Rokosz had preexisting degenerative disc disease and endplate spondylosis at C4-C5, but like her knee, she was not experiencing any neck pain or treating for any neck issues immediately prior to the crash. At the emergency room immediately after the crash, however, the ER doctor observed spasming in her cervical spine. Furthermore, the physician’s assistant, Karen McHenry, at here primary care physician’s office two weeks after the crash, also observed spasming and opined that Rokosz preexisting cervical disk disease “may have been aggravated a little bit [by the crash].” Therefore, viewing the evidence and circumstantial evidence in the light most favorable to Rokosz, the Court of Appeals held that a question of fact existed as to the relatedness between her cervical spine injury and the crash.

There is no dispute that plaintiff had disc degeneration at the C4-C5 level before the accident. However, we find no significant complaints of preaccident neck pain or limitations until after the accident. Accepting plaintiff’s testimony as true and after reviewing the preaccident medical records in the light most favorable to her, as we must at the summary-disposition stage, we conclude there is evidence to support her assertion that she was not suffering from significant neck symptoms before the accident. By the same token, we conclude there is evidence to support plaintiff’s claim that she consistently reported pain and sought treatment following the accident. In addition, both the ER doctor and her PCP noted the presence of spasm and suggested that the accident may have aggravated her cervical disk condition. Accordingly, there is a question of fact whether the motor vehicle accident caused plaintiff’s claimed neck impairment.

After making the threshold determination that there was, in fact, a dispute concerning the nature and extent of Rokosz’s injuries, the Court of Appeals next turned to the issue of serious impairment of body function. In this regard, the Court first held that Rokosz’s knee and neck injuries were objectively manifested. As to her knee injuries, the Court noted that, although the imaging of her knee was negative, “the doctor’s diret observations during surgery [to resituate the loose prosthesis] in which he actually saw the pathology is a sufficient, if not superior, form of objective evidence.” As to her neck injuries, the Court reaffirmed its prior holding in Franz v Woods, 145 Mich App 169 (1985) that muscle spasms are objective manifestations of an injury.

There was also an objective basis for plaintiff’s complaints of knee pain and limitations. While medical imaging did not provide an objective basis for the complaints, a scope in June 2018 revealed a possible loose prosthesis of the right knee, and in October 2018 plaintiff had surgery to replace a loose polyethylene tibial component of her right knee. Thus, even though imaging of plaintiff’s knee was negative, the doctor’s direct observations during surgery in which he actually saw the pathology is a sufficient, if not superior, form of objective evidence. And a loose tibial component necessitating surgery and replacement was clearly an impairment, i.e., plaintiff’s knee was weakened, diminished, or damaged. Id. at 607. Accordingly, the trial court erred by concluding that there were no objective findings supporting plaintiff’s reports of knee pain following the accident.

As to her neck and upper back, there was no medical imaging showing that plaintiff suffered a traumatic injury from the accident. However, it is well established that “the aggravation or triggering of a preexisting condition can constitute a compensable injury.” Fisher v Blankenship, 286 Mich App 54, 63; 777 NW2d 469 (2009). And the physical exams at the emergency room and later by her treating physicians were consistent with aggravation or increased symptoms from plaintiff’s preexisting cervical disk degeneration. At the emergency room the day of the accident, plaintiff was observed to have “bilateral paracervical spasming.” On a visit to her primary care physician on August 30, 2017, the PA found on exam that plaintiff had tightness over her upper back and upper cervical strain and spasming. We have held that muscle spasms are objective manifestations of an injury. Franz v Woods, 145 Mich App 169, 176; 377 NW2d 373 (1985). Further, Dr. Morkos observed limited range of motion of plaintiff’s cervical spine in all directions as well as a positive Spurling test. A limited range of motion is an objectively manifested impairment. See McCormick, 487 Mich at 218. Thus, there were physical findings to support plaintiff’s subjective complaints of pain.

The second prong of the McCormick analysis was not in dispute, and thus the Court turned next to the third prong, holding that Rokosz presented sufficient evidence to create a question of fact as to whether her impairments affected her general ability to lead her normal life. Rokosz testified that she had difficulty walking and getting dressed after the collision as a result of her injuries, and that she could not landscape or go to the gym as frequently or with as little difficulty as she could prior to the collision. Moreover, she testified that, after the crash, “her life became centered around medical treatment and appointments.” The Court held that, while these proofs were not “overwhelming,” they were sufficient to create a question of fact.

On the other hand, she has described changes to her life as a result of her knee and cervical spine injuries. Although the record contains a 2014 x-ray of her cervical spine, it does not explain why the study was performed and the medical records provided by the parties do not describe any cervical spine treatment before the accident.6 In her July 2019 deposition, plaintiff testified that she was “more active before the accident and without . . . pain. It takes effort, and I’ve learned to do things differently since the accident.” She described her preaccident life style. She explained that she retired in 2011, maintained her own home, gardened and regularly worked out at a gym three to four times per week. She testified that she did not have trouble walking following recovery from her 2015 surgery until the accident after which walking became difficult. She had to “redirect[] the way I carr[y] myself” and sometimes used a cane, until the revision of her knee replacement in 2019. She testified that getting dressed is more difficult because her right knee motion is limited. She also testified that her ability to garden is now limited to “deadheading” her flowers and “pull[ing] a couple of weeds. She testified that: “I still like to go out there, but I pay for it afterwards.” She could no longer mow the lawn with her push mower and so purchased a self-propelled lawn mower. She now mostly eats on paper plates to avoid having to do the dishes. And she now goes to the gym about once every two weeks rather than three of four times per week. She also testified that because of neck pain she has to limit her time reading.

Plaintiff also testified that following the accident her life became centered around medical treatment and appointments. She testified that she was not doing any physical therapy prior to the accident, and that she attended 109 physical therapy appointments postaccident from September 2017 through December 2018 and that she had to resume physical therapy in April 2019 due to pain because she could not receive another cervical nerve block until December 2019. In addition to the cervical spine treatment, she has undergone two surgical procedures on her right knee.

Plaintiff’s proofs regarding the disruptions and changes to her “normal life” are not overwhelming, but they are sufficient to create a question of fact. “The statute merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed.” McCormick, 487 Mich at 200. See also Piccione v Gillette, 327 Mich App 16; 932 NW2d 197 (2019) (“The statute only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has itself been affected.”) (quotation marks and citation omitted). Thus, we must consider “not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless affected.” McCormick, 487 Mich at 200. Given the records and her testimony, we conclude there is a question of fact whether plaintiff’s general ability to lead her normal life has been affected by the injuries incurred in the motor vehicle accident. At her deposition in July 2019, almost two years after the accident, plaintiff testified that the injuries still limited her function and activities. There is no temporal requirement for how long an impairment must last, but time is a relevant factor. See id. at 203. That plaintiff’s impairments had been ongoing for a substantial period of time supports the conclusion that reasonable minds could differ whether her impairments have affected her general ability to lead her normal life.

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