                           STATE OF MICHIGAN

                            COURT OF APPEALS



GAYLE H. SIGAN,                                                      UNPUBLISHED
                                                                     June 2, 2015
               Plaintiff-Appellant,

v                                                                    No. 320570
                                                                     Marquette Circuit Court
JESSICA A. DEZIEL,                                                   LC No. 13-051139-NI

               Defendant-Appellee.


Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

        In this action under the Motor Vehicle Personal and Property Protection Act (also
referred to as the “no-fault” act), MCL 500.3101 et seq., plaintiff appeals as of right from an
order granting defendant’s motion for summary disposition and dismissing her claim for
economic damages. A previous order granted defendant’s motion for partial summary
disposition in which defendant asked the trial court to dismiss plaintiff’s claim for noneconomic
damages based on a determination that she had not suffered a threshold injury. Plaintiff argues
on appeal that the trial court erred by dismissing her claim for noneconomic damages because
there was a genuine issue of material fact as to whether she had sustained a serious impairment
of body function, and that the trial court further erred in concluding that she was not entitled to
economic damages. We affirm.

                                               I. FACTS

        Plaintiff and defendant were involved in an automobile collision on February 1, 2012, in
Marquette. According to plaintiff, she had come to a stop in the road when defendant, driving
behind plaintiff’s vehicle, hit the rear of the vehicle after failing to stop. The police were not
called to the scene, but plaintiff reported the incident to law enforcement officers five days later.
The trial court noted that photographs of plaintiff’s car following the accident showed that it did
not have any noticeable damage. Plaintiff eventually filed an action against defendant alleging
that she had suffered various injuries as a result of the accident, including a right ankle injury
requiring surgery; aggravation of preexisting conditions, including arthritis and fibromyalgia;
and “potential loss of future earning capacity.”




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                     II. SERIOUS IMPAIRMENT OF BODY FUNCTION

        Defendant argued that plaintiff was not entitled to recover noneconomic damages
because she had not suffered a serious impairment of body function as required under MCL
500.3135. The trial court concluded that plaintiff had several long-standing medical issues at
the time of the collision that affected her ability to stand, walk and lift, and noted that plaintiff
had reported being in near “continual pain” beginning in 2001 up to the time of the accident.
Plaintiff argued that although she had preexisting medical conditions, they were worsened by the
accident. In addition, plaintiff claimed that her ankle injury was caused by the accident and had
resulted in a serious impairment of body function entitling her to damages under the statute. We
agree with the trial court that plaintiff did not suffer a serious impairment of body function as a
result of the accident, and is not entitled to noneconomic damages.

        MCL 500.3135(1) provides that “[a] person remains subject to tort liability for
noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if
the injured person has suffered death, serious impairment of body function, or permanent serious
disfigurement.” The statute defines “serious impairment of body function” as “an objectively
manifested impairment of an important body function that affects the person’s general ability to
lead his or her normal life.” MCL 500.3135(5). Our Supreme Court has held that the statute sets
forth “three prongs that are necessary to establish a ‘serious impairment of body function’: (1)
an objectively manifested impairment (2) of an important body function that (3) affects the
person’s general ability to lead his or her normal life.” McCormick v Carrier, 487 Mich 180,
194-195; 795 NW2d 517 (2010). We find that plaintiff has established the first two prongs of
McCormick, but has failed to establish the third prong.

        Plaintiff presented sufficient evidence to show that she suffered “an objectively
manifested impairment” as a result of the accident. McCormick, supra, at 195. For purposes of
deciding defendant’s motion, the trial court accepted plaintiff’s testimony and that of her
podiatrist that her ankle injury was caused by trauma suffered during the accident. In
McCormick, the Court made clear that evidence of an injury did not establish the first prong
because “injury” and “impairment” were not synonymous. Id. at 197. The Court found that “an
injury is the actual damage or wound, [whereas] an impairment generally relates to the effect of
that damage. Accordingly, when considering an ‘impairment,’ the focus is not on the injuries
themselves, but how the injuries affected a particular body function.” Id. (citations and internal
quotation marks omitted). The Court also held that a patient’s testimony regarding her pain and
suffering was not sufficient to meet the threshold required by the statute, and that medical
testimony was required. Id. at 197-198.

         In the instant case, plaintiff testified that her ankle injury caused significant pain and
limited mobility. Plaintiff’s podiatrist testified that plaintiff’s ankle was injured by a traumatic
event, and that the injury required surgery and hampered plaintiff’s ability to walk during her
recovery. The statute does not require that an impairment be permanent in order to be
considered a serious impairment of body function. McCormick, supra, at 203. Accordingly, the
testimony of plaintiff and her medical provider was sufficient to meet the first prong of the
statute.



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        We also find that plaintiff established that her impairment affected an important body
function. MCL 500.3135(5); McCormick, supra, at 199. In McCormick, the Court stated that
this prong requires “an inherently subjective inquiry” and “must be decided on a case-by-case
basis.” Id. The ability to walk is generally considered to be an important body function, and this
ability was important to plaintiff specifically, as she testified that she walked frequently for
recreation prior to her injury. Although the extent of the effect of plaintiff’s ankle injury on her
walking habits is a matter of dispute between the parties, plaintiff established that her ankle
surgery impeded her ability to walk during her recovery, and that she had to use a walking boot
and a walker in order to walk. This evidence was sufficient to establish that plaintiff’s
impairment affected an important body function.

        The third prong of the statute requires a court to determine whether the impairment
“affects the person’s general ability to lead his or her normal life.” McCormick, supra, at 200
(internal quotation marks omitted). In McCormick, the Court stated that the common
understanding of this phrase means “to have an influence on some of the person’s capacity to
live in his or her normal manner of living.” Id. at 202. The Court stated further that
“[d]etermining the effect or influence that the impairment has had on a plaintiff’s ability to lead a
normal life necessarily requires a comparison of the plaintiff’s life before and after the incident,”
which is a “subjective, person- and fact-specific inquiry that must be decided on a case-by-case
basis.” Id. Moreover, an injured person’s ability to lead his or her normal life need not be
“destroyed,” but only “affected.” Id. We conclude that plaintiff did not establish this prong of
the statute because the evidence did not show that there was a measurable difference between her
normal life before and after the accident.

        Defense counsel presented a document in which plaintiff claimed to have been “totally
disabled” as a result of a previous accident around 1995. Defendant also presented a
questionnaire that plaintiff had filled out in 2001 in which she claimed that she was unable to
walk for more than four blocks because of pain in her legs, and that she needed to stop every one
to two minutes to rest because of her pain. In the same document, plaintiff also claimed to have
ceased all of her recreational activities because of her pain. In addition, plaintiff had stated that
although she was able to cook, wash dishes, and do laundry, these tasks took her “[f]orever” and
she had to take ten minute breaks while doing them. In a document plaintiff filled out in July
2002, she claimed to be unable to work due to back pain that radiates into her legs and neck and
to have suffered from the same since 1995. In a 2005 decision of an administrative law judge
(ALJ) concerning plaintiff’s request for supplemental security income payments, the ALJ noted
that plaintiff has arthritis in both knees and cannot kneel or stoop, has fibromyalgia, frequently
feels exhausted and sick and has very little energy, has hand pain which she attributes to carpal
tunnel syndrome and that plaintiff was unable to perform even a full range of sedentary work.

         Plaintiff testified that as a result of the automobile accident with defendant, she was not
participating in any recreational activities because she was “always sick” and had “isolated”
herself “because [she was] basically embarrassed of everything going on with me.” Plaintiff also
testified that she was unable to work as a result of her injuries from the accident. Regarding her
abilities following the accident, plaintiff testified that she could walk on a treadmill for up to
twenty minutes and perform some light household tasks, including some cleaning and light loads
of laundry, grocery shopping, and basic cooking.


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        We find that plaintiff’s description of her life following the accident is not significantly
different from her life in the years preceding the accident as demonstrated by the record. Her
domestic and recreational activities are virtually the same, and she indicated that she had
difficulty walking long before the accident occurred. Plaintiff was disabled and asserted that she
was unable to work before the accident, as well as after it. The trial court did not err in finding
that there was no appreciable difference in plaintiff’s “normal life” before and after the
automobile collision, and that plaintiff therefore was not entitled to recovery of noneconomic
damages.

                                  III. ECONOMIC DAMAGES

         Pursuant to MCL 500.3107(1)(b), personal protection benefits are payable for “[w]ork
loss consisting of loss of income from work an injured person would have performed during the
first 3 years after the date of the accident if he or she had not been injured.” Defendant argued
that plaintiff did not have a valid claim for work loss because she was unable to work at the time
of the accident and so had not lost wages as a result of her injuries, and the court granted the
motion on this basis.

         In Davis v State, 159 Mich App 734, 738; 407 NW2d 1 (1987), we held that under the
no-fault act, “work loss benefits are available to compensate injured persons for the income they
would have received but for their accidents. Accordingly, a party seeking work loss benefits
under § 3107(b) must show actual loss; a mere loss of earning capacity is not sufficient.” “ ‘Loss
of earning capacity’ is what an injured person could have earned but for the injury. ‘Work loss’
is loss of income from work an injured person would have performed if he had not been injured.”
Ouellette v Kenealy, 141 Mich App 562, 565; 367 NW2d 353 (1984), aff’d 424 Mich 83; 378
NW2d 470 (1985) (citations omitted). Under Davis and both Ouellette decisions, plaintiff was
not entitled to work loss benefits.

        Plaintiff testified that she had not worked since 2006, and was not currently able to work
or to seek work. Plaintiff claimed that at the time of the accident, she had been planning to look
for a full-time position as a social worker after completing her degree, which she received in
May 2013. Under the statute, however, plaintiff may not be compensated for the alleged
disruption of her future plans. Since plaintiff was not working at the time of the accident and her
claim for work loss was based on her prospective loss of earning capacity as a future social
worker, she is not entitled to work loss damages.

       Affirmed.

                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Deborah A. Servitto




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