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Rugg v Divina, et al (UNP – COA 10/21/2021; RB # 4331)

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Michigan Court of Appeals; Docket #355628; Unpublished
Judges Shapiro, Borrello, and O’Brien; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(1)**]
Causation Issues [§3135]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Delphine Rugg’s third-party action against Defendants Delfin Divina and Divina Divina. Rugg alleged that she suffered two injuries as a result of the subject car crash: a torn rotator cuff and cervicalgia. As for her torn rotator cuff, the Court of Appeals held that Rugg failed to present sufficient evidence to create a question of fact as to whether that injury was caused by the subject crash, and as for her cervicalgia, the Court held that that injury did not affect her general ability to lead her normal life, and thus did not satisfy the third prong of the test set forth in McCormick v Carrier, 487 Mich 180 (2008) for serious impairment of body function.

The subject car crash occurred on May 20, 2017, with Rugg complaining of neck pain but denying emergency treatment at the scene. Three days later, she sought treatment from her primary care physician, who diagnosed her with a cervical strain and recommended physical therapy. Rugg opted instead for chiropractic treatment, and on her initial intake form at her chiropractor’s office, she indicated that she also injured her “ ‘upper right arm’ ” in a separate work-related incident prior to the crash. She indicated that she had been diagnosed with a possible rotator cuff injury as a result of that separate work-related incident, but this was not confirmed, as she had refused to undergo an MRI.

Approximately nine months after the crash, Rugg returned to her primary care physician and reported experiencing “ ‘shoulder/arm neck pain.’ ” Her primary care physician diagnosed her with cervicalgia, but did not offer a diagnosis as to her shoulder pain. She complained of shoulder pain to her primary care physician again a few months later, but did not actually undergo an MRI until almost two years after the crash. The MRI revealed that Rugg had a full-thickness rotator cuff tear, for which she was then seen by an orthopedic surgeon, who noted in his records: “ ‘Patient states she was injured back in 2017, work comp.’ ” After undergoing surgery to repair her rotator cuff, Rugg filed the underlying third-party action, alleging that her rotator cuff tear and cervicalgia were caused by the crash and constituted a serious impairment of body function, but the trial court granted summary disposition in favor of the Divinas.

The Court of Appeals affirmed the trial court’s summary disposition order, holding first that there was simply no evidence linking the torn rotator cuff to the subject crash, nor even a logical sequence of cause and effect. Rugg did not report significant shoulder pain until “mony months” after the crash, identified many different dates of onset of the injury at various points after the crash, and presented no medical testimony or medical records connecting the two events. Thus, the Court held that her “claim concerning causation of her rotator cuff injury does not rise above speculation.”

“To begin, no physician has opined that plaintiff’s torn rotator cuff was caused or worsened by the auto accident. We recognize that even in the absence of a physician’s finding of causation ‘a plaintiff’s evidence of causation is sufficient at the summary disposition stage to create a question of fact for the jury if it establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible theories . . . .’ Patrick, 322 Mich App at 617 (quotation marks and citation omitted). However, plaintiff has not provided evidence of ‘a logical sequence of cause and effect.’ Following the accident, plaintiff did not report significant shoulder pain for many months, during which she continued to work as a housekeeper, and she has not provided any testimony that offers a logical link between her shoulder injury and the accident. She also identified many different dates of onset of her shoulder injury. In the absence of medical testimony or medical records or some other evidence showing the connection between the accident and the shoulder injury, we conclude that the claim concerning causation of her rotator cuff injury does not rise above speculation. See id. at 617 (‘[C]ausation cannot be established by mere speculation . . . .[’]). Given that, and considering plaintiff’s failure to address the causation issue separate from the serious-impairment threshold, we find no error in the trial court’s decision to grant summary disposition of plaintiff’s complaint as it pertains to her shoulder injury. See MCR 2.116(G)(4) (‘When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party . . . must . . . set forth specific facts showing that there is a genuine issue for trial.’)."

According to the Court, Rugg’s only proven crash-related injury, therefore, was her cervicalgia, but that injury did not affect her general ability to lead her normal life. Rugg’s testified at her deposition that she largely did not participate in recreational activities, and that the only injury which prevented her from working was her torn rotator cuff, not her cervicalgia.

“Even though plaintiff testified that she was only claiming a shoulder injury as a result of the accident, she maintains on appeal that she also suffered cervicalgia or a neck strain from the auto accident. But, assuming that plaintiff’s cervicalgia was caused by the auto accident, the trial court did not err by determining that it was her shoulder injury that affected plaintiff’s ability to lead her normal life. Plaintiff testified that she was forced to stop her housekeeping business in December 2018, and she was unequivocal that her shoulder injury was the reason why she could no longer work . . . Thus, although a diminished capacity to work supports a finding that the third serious impairment prong is satisfied, see McCormick v Carrier, 487 Mich 180, 219; 795 NW2d 517 (2010), plaintiff was unable to work solely because of her shoulder injury and, for the reasons discussed, plaintiff fails to establish a material question of fact as to whether her shoulder injury was caused by the auto accident.

As to the effect on plaintiff’s recreational activities, she testified that she and her husband ‘weren’t big on recreation. . . . We didn’t do too much.’ Plaintiff used to swim before the accident and indicated that her pain would prevent her from doing so now, but she had not ‘tried it actually.’ Plaintiff had access to a pool at her condo before the accident, but she did not have access to a pool at her new home. Before the accident plaintiff would occasionally volunteer with her church for construction projections; after the accident, she tried to volunteer but could only do so for a half an hour. Even if these post-accident changes were caused by plaintiff’s overall injuries, we cannot conclude that limits on these occasional activities, standing alone, are significant enough to affect plaintiff’s general ability to live her normal life.”

 


Lansing car accident lawyer Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

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