Author(s): L. Ladd Culbertson

COURT OF APPEALS FINDS PLAINTIFF, WHO IS ABLE TO WORK AND SUSTAINED A VERY MINOR IMPACT ON HER REGULAR ACTIVITIES, HAS A THRESHOLD INJURY

In Ransom v Utility Contracting Co, an unpublished 2-1 opinion of the Court of Appeals (Docket No. 276827), the Court reversed the trial court’s grant of summary disposition in this automobile negligence case. Perhaps most surprising about this opinion is that the plaintiff’s complaints in this case are no different in severity than those made by the Plaintiff in the landmark opinion in Kreiner v Fischer. Nevertheless, the Court of Appeals in this case determined that the plaintiff met the injury threshold as required by Kreiner and remanded the case back to Circuit Court for further proceedings.

In Ransom, plaintiff was involved in an accident with defendants in August 2004. After the accident, Plaintiff presented to the hospital for treatment of back and neck pain. There is no indication in the opinion that she complained of shoulder pain at that time. She underwent x-rays, but the x-rays were unremarkable. Even so, on discharge she was given pain medication and restricted from lifting more than 2-3 pounds. She continued to have pain in her neck and shoulder, at which point a physician diagnosed her with neck and shoulder strains. She later underwent an MRI on her shoulder, and that also returned unremarkable. Cervical MRIs did reveal some disc

bulging. She underwent steroid injections for her neck pain. At some point, even though previous MRIs revealed no shoulder injuries, the Plaintiff’s physicians discovered she had a partial left rotator cuff tear, for which she ultimately underwent surgery. Post-surgery, she underwent a course of physical therapy. Therapy did not alleviate her pain and two years post-accident, she filed suit.

In her complaint, she alleged that she sustained a left rotator cuff tear, a right shoulder impingement, cervical disc bulges, and wrist neuropathy as a result of the accident. The trial court dismissed her case, finding she did not sustain threshold injuries. After the trial Court dismissed her case, she appealed. The Court of Appeals reversed, finding that she “has met the threshold injury requirement as defined in the Michigan No Fault Act”.

The opinion hinged primarily on the plaintiff’s claimed limitations in her ability to work and engage in leisure activities. At the time of the accident, plaintiff was employed as a postal worker. She worked 30 hours per week delivering mail and she also worked part time cleaning at a health clinic. Post-accident, she had lifting restrictions in place and was instructed not to drive. Her employer, however, accommodated her restrictions and placed her on light duty. She continued to work, but instead of delivering mail, she performed other tasks, such as sorting mail. After her shoulder surgery, performed some time after the accident, her doctor took her off work. She was restricted from working at the post office for approximately 7 months. Interestingly, although she did not return to the post office, she continued to work at the health clinic. She did not perform all the tasks she once had, however, and no longer mopped, vacuumed, or cleaned the sinks, instead performing only light duty cleaning tasks.

With respect to hobbies, plaintiff testified that she enjoyed gardening, walking, and pilates. She admitted she could still enjoy those activities, even though sometimes she could not perform them as well, or as often, as she could before the accident. Similarly, she used to cook and clean her home before the accident. While she continued to do so post-accident, she believed she could not do these tasks as well as she could before.

In assessing the facts set forth above, the Court of Appeals held that an “objective comparison of plaintiff’s lifestyle before and after the accident suggests a significant change in her life”. The Court based this on the fact that she had a torn rotator cuff eventually requiring surgery, several months of therapy, months worth of prescription pain medication, and continuing pain and restrictions. The Court recognized that her ability to engage in leisure activities had “been impacted in only a minor way”, but stated that her ability to engage in the employment at the post office had been “severely impacted”. The Court did not elaborate on why it believed her work life had been severely impacted. The Court then speculated that her driving restrictions “likely impacts many facets of her life”. Finding that her injuries continue to impair her years after the accident, that she is restricted from engaging in her primary employment, that she is not allowed to drive, and “lacking any concrete evidence concerning plaintiff’s prognosis for eventual recovery”, the Court held that it could not find her general ability to lead her normal life had been unaffected.

The dissenting Judge noted the well-settled principle that a negative aspect on one aspect of a plaintiff’s life does not meet the threshold requirement. In this particular case, the dissent found that plaintiff, although restricted, continues to work and continues to engage in her hobbies and routine household tasks. Consequently, her life had not been sufficiently impacted and she was not entitled to recovery.

Perhaps most surprising about this opinion is that it flies in the face of recent Supreme Court orders, which peremptorily reversed the Court of Appeals in two similarly decided automobile negligence cases. In particular, the Supreme Court has issued orders in Jones v Olson, docket number 132385, and Minter v City of Grand Rapids, docket number 133988. In both cases, the Supreme Court reinstated the Circuit Court’s grant of summary disposition, finding that the Court of Appeals misapplied Kreiner. Should the defendants choose to appeal this case, it is certainly probable that the Supreme Court will, yet again, reverse the Court of Appeals and reinstate the judgment in favor of defendants.

In the meantime, this opinion is yet one more decision providing the fodder with which a plaintiff can sustain a motion for summary dismissal and lobby for settlement of relatively minor claims in cases where the plaintiff sustained only minor injuries, or did not present any injuries contemporaneously with their accident. While it seems clear that some Court of Appeals panels are intent upon carving out exceptions to Kreiner, the Supreme Court is not yet ready to do so.