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Zeliasko v Al-Dorough, et al (COA – UNP 6/16/2022; RB #4438)   


Michigan Court of Appeals; Docket #357397; Unpublished 
Judges Borrello, Jansen, and Murray; Per Curiam 
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Dissent

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)**]

Not Applicable

In this 2-1 (Murray, dissenting), unpublished, per curiam decision, the Court of Appeals vacated the trial court’s summary disposition order dismissing Plaintiff Emily Zeliasko’s auto negligence action against Defendant Abdulkareem Al-Dorough.  The Court of Appeals held that Zeliasko presented sufficient evidence to create a question of fact as to the first and third prongs of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010) and codified in MCL 500.3135(5): whether she sustained an objectively manifested impairment which affected her general ability to lead her normal life.

Emily Zeliasko was driving on the highway when she was rear-ended by a vehicle driven by Abdulkareem Al-Dorough.  Zeliasko was transported from the scene of the crash to the hospital, where she was eventually discharged with diagnoses of abrasions and a contusion of the chest wall.  Over the next several months, she experienced back and left shoulder pain, she was seen by various doctors—including several for post-traumatic stress disorder, with which she was diagnosed—she underwent 40 sessions of physical therapy, and she had an MRI performed—although the Court does not specify of which body part—which was ‘unremarkable.’  Approximately eight months after the crash, Zeliasko was examined by one Dr. Braden Boji, who diagnosed her with an ‘unstable left shoulder [j]oint with likely recurring episodes of subluxation’ and periscapular muscle spasms.

Zeliasko was a student at the time of the crash, and she worked at a veterinary clinic only during the summary and holiday breaks.  She was able to return to work the summer after the crash, but she testified that she could no longer lift up dogs or help with cleaning.  As for the other aspects of her daily life, she testified that she could no longer golf or ski to the same degree as she could prior to the crash; she testified that she struggled driving because of her post-traumatic stress disorder; she testified that she would experience back pain if she sat for too long; and  she testified that carrying her backpack caused her severe pain.  Based on her diagnoses and limitations, Zeliasko filed the underlying third-party auto negligence action against Al-Dorough, and Al-Dorough moved for summary disposition, arguing that Zeliasko had not suffered an objectively manifested impairment which affected her general ability to lead her normal life.  The trial court granted Al-Dorough’s motion, finding only that Zeliasko failed to establish that she suffered an objectively manifested impairment.

The Court of Appeals vacated the trial court’s summary disposition order, holding that Dr. Boji’s diagnoses of an unstable left shoulder joint and muscle spasms were sufficient to create a question of fact as to whether Zeliasko suffered an objectively manifested impairment.  The Court acknowledged that Zeliasko’s prior receipt of eight months of treatment with no such diagnoses perhaps weighed against such a finding, but noted that the strength of Dr. Boji’s diagnosis was for the trier of fact to determine.

“Such a physical basis exists in the records from an examination by Dr. Boji who noted that plaintiff had an ‘unstable left shoulder Joint [sic] with likely recurring episodes of subluxation,’ and that plaintiff had periscapular muscle spasms. At the motion for summary disposition, plaintiff argued that the doctor’s note that plaintiff’s left shoulder was tender was a physical basis for plaintiff’s subjective complaint of pain. The trial court acknowledged there was objective evidence of injuries suffered by plaintiff in the accident, but the trial court determined that the tenderness experienced by plaintiff did not rise to the level of a serious impairment of body function. The trial court emphasized that the relevant inquiry is whether there was objective manifestation of an impairment and that was missing in this case. The trial court did not refer, however, to the medical records from Dr. Boji that found that plaintiff had an unstable left shoulder joint and back spasms.” 

The Court of Appeals held, second, that Zeliasko also presented sufficient evidence to create a question of fact as to whether her impairments affected her general ability to lead her normal life.  Although Zeliasko only missed a few classes and no time from work—and, as of the date the Court issued its opinion, was employed full-time with the veterinary clinic—her testimony regarding the effect her injuries had on her ability to perform tasks at work precluded summary disposition.  The Court also rejected Al-Dorough’s argument that although Zeliasko’s life was affected “at last somewhat and for some time as a result of the accident,” the effect was “not serious enough nor lasted long enough.”  The Court noted that McCormick does not require “a finding of significant changes in pre- and post-accident life,” but merely “some difference.”  Moreover, even though Zeliasko had returned to work and school and some recreational activities a short while after the crash, the Court noted that there is no basis either in MCL 500.3135 or McCormick for Al-Dorough’s contention that “there is a certain minimum period or minimum amount of affect that must be met to satisfy the third prong [of the test for serious impairment of body function].”

“Viewing the evidence in the light most favorable to plaintiff, there is a genuine issue of material fact whether her back and shoulder impairment affected her ability to complete tasks at work. Although plaintiff was by all accounts still able to work, she testified that her work was affected. As our Supreme Court has stated, plaintiff’s ability to engage in these activities need not be destroyed, but merely affected. Id. at 202, and a reasonable trier of fact could find that plaintiff’s impairments affected her general ability to live her normal life.” 

Judge Murray dissented, arguing that Zeliasko failed to present sufficient evidence to create a question of fact as to whether her injuries affected her general ability to lead her normal life.  He noted that she graduated on time and with honors after the crash; that her injuries had no “measurable” impact on her employment and that she had never been placed on work restrictions by a doctor; and that her avocational activities were not sufficiently affected to satisfy the third prong of the McCormick analysis.

“Plaintiff’s evidence does not create a material factual dispute that her accident-related injuries affected her ability to live her normal life. McCormick, 487 Mich. at 202. At the time of her accident, plaintiff was a junior at Grand Valley State University. After the accident, it is undisputed that plaintiff only missed one full day of classes (the day after the accident), missed a few more after that, but ultimately graduated on time and with honors. Thus, there is no dispute that any injuries from the accident did not affect her ability to successfully complete college, as she had always intended. 

Nor did her injuries have a measurable impact on her employment. Prior to the accident plaintiff worked summer and holiday breaks from school at Blue Pearl Veterinary Partners. Plaintiff also worked at Blue Pearl the summer following the accident, and Blue Pearl currently employs plaintiff full-time. Plaintiff’s job duties include triaging outpatients, caring for inpatients, running diagnostic testing, obtaining medical histories, providing owners with estimates, running bloodwork, and running anesthesia. Plaintiff admitted that she has never been placed on restrictions regarding her work duties (nor any other restrictions, for that matter) and that she has only restricted herself from lifting dogs at work.1 Additionally, in the two years following the accident plaintiff missed only one day of work, and that was because of a panic attack, not any limiting nature of her injuries. 

Moreover, with respect to her daily activities, plaintiff admits that she never required attendant care services to assist her with personal care such as dressing or showering, or for performing errands. For only a short time following the accident she had difficulty doing some household chores such as making her bed, sweeping, and vacuuming, but again plaintiff could do these chores, it was just difficult sometimes to do so. And by the time of her deposition, at the latest, those difficulties had ended. 

Regarding plaintiff’s avocational activities, she claims she can no longer play golf, ski, go to the beach, or participate in agility drills with her dog. Again, however, plaintiff’s restrictions were self-imposed, as no medical professional has restricted her from these activities. Since the accident, plaintiff has golfed and skied, albeit with less vigor, and plaintiff conceded that the accident did not impact her ability to go to the beach and that she has not attempted to agility train her dog since the accident (and not because of her injuries). And plaintiff’s missed trip to Traverse City was solely attributable to her fear of driving, which is not an objectively manifested impairment and is not (as plaintiff’s counsel conceded at oral argument) properly considered in this analysis.” 

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