Michigan Court of Appeals; Docket # 330165; Unpublished
Judges Boonstra, Cavanagh and K.F. Kelly; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(5)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving plaintiff’s third-party claim for damages based on the alleged aggravation of a pre-existing injury under MCL 500.3135(1), the Court of Appeals held the trial court properly applied McCormick v Carrier, 487 Mich 180 (2010), and, as a result, plaintiff failed to establish a causal link between the auto accident and the reoccurrence or worsening of her spine and neck condition.
On November 8, 2011, plaintiff’s vehicle was rear-ended by defendant’s vehicle. Three months prior, plaintiff saw Dr. Rama Rao to help manage her neck and lower back pain. Dr. Rao diagnosed plaintiff as having lumbar degenerative disk disease, lumbar spondylosis, cervical degenerative disk disease and cervical spondylosis, among other things. Five days before plaintiff’s auto accident, plaintiff visited Dr. Rao again complaining of “severe persistent cervical neck pain that radiates to shoulders associated with numbness” and “persistent severe low back pain.” Dr. Rao ordered a CT scan and prescribed injections and physical therapy. Three days after plaintiff’s accident, plaintiff underwent the CT scan of her cervical spine, which revealed no acute fractures or dislocations and found “only mild degenerative changes” in plaintiff’s spine. Plaintiff then saw Dr. Rao twice in November 2011 and twice in December 2011 for injections. The record showed no mention of the November 8, 2011 auto accident. Plaintiff’s primary care doctor, Dr. Stoker, took x-rays of plaintiff’s spine the day after the accident, which did not reveal any fractures or dislocations. Plaintiff also saw a chiropractor after the accident, who informed her that she had suffered whiplash and referred her to physical therapy. Plaintiff ultimately sought treatment at the Michigan Head & Spine Institute (MHSI). MHSI doctors diagnosed plaintiff with severe neck and lower back pain, disc spurs and herniations in various vertebrae, as well as nerve root irritations. On her initial MHSI patient information form, plaintiff reported that her pain started “11/8/11” as a result of the auto accident. Plaintiff saw Dr. Robert Farhat, an interventional pain management physiatrist, on her initial MHSI visit, who noted that plaintiff was “involved in a motor vehicle accident on 11/08/11,” that “[s]ince that time she has had severe neck pain, headaches, and upper extremity pain,” that she “did have issues prior to this incident with her low back” but that “the accident made her symptoms worse.” Plaintiff later saw Dr. Fernando Diaz, an MHSI neurosurgeon, who indicated that plaintiff developed “the onset of neck and back pain radiating” to both her upper and lower extremities, and that these were symptoms “[r]esulting from the accident.” Plaintiff then underwent two independent medical examinations, one by Dr. Robert Levine and one by Dr. Paul Drouillard. Dr. Levine indicated that plaintiff’s spondylosis was not related to the auto accident and that her cervical and lumbar conditions were “slowly progressive” and part of an “ongoing degenerative process.” Prior to seeing the results of plaintiff’s post-accident MRIs, Dr. Drouillard indicated that he saw “no evidence of a functional impairment or injury related to the event of November 8, 2011.” After viewing plaintiff’s MRI films, Dr. Drouillard did not change his opinion.
Plaintiff filed this action in 2014, claiming that defendant negligently operated her vehicle, causing her injury or aggravation of a pre-existing condition. Defendant moved for summary disposition, arguing that plaintiff had significant neck and back issues before the November 2011 accident. Defendant further alleged that Drs. Diaz and Farhat were not given plaintiff’s full, accurate medical history and, therefore, their opinions about the cause of plaintiff’s condition should not be given any weight. Plaintiff, however, asserted that the conflicting medical testimony created a question of fact for the jury. The trial court granted summary disposition for defendant.
On appeal, plaintiff maintained that because doctors who either treated or evaluated her after the accident offered differing opinions on the nature and extent of her injuries, a genuine issue of material fact existed about whether she suffered from an objectively manifested impairment because of the November 2011 accident. The Court of Appeals rejected plaintiff’s argument, holding the trial court properly granted summary disposition to defendant.
In so finding, the Court pointed out that §3135(1) establishes the following threshold injury requirement in third-party auto negligence cases:
“Specifically, a plaintiff must demonstrate that because of a defendant’s ownership, maintenance, or use of a motor vehicle, the plaintiff has suffered death, serious impairment of a body function, or permanent serious disfigurement.”
According to the Court, serious impairment of a body function means “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” The Court noted the McCormick test requires a plaintiff to show: 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.
In this regard, the Court said:
“The inquiry is whether plaintiff suffered an aggravation or a triggering of the symptoms associated with the preexisting condition because of the accident. … In this case, plaintiff’s preexisting neck and lower back pain was uncontested. The issue at summary disposition was whether plaintiff was injured by the accident, or whether her preexisting condition was exacerbated by the accident such that recovery was allowable under MCL 500.3135. Thus, although plaintiff presents the issue as relating to whether the serious impairment of a body function threshold of MCL 500.3135 was met, the real issue (as the trial court found) is one of causation.”
Looking at the record, the Court of Appeals said the trial court was correct in finding that plaintiff did not establish a genuine issue of material fact about whether the November 2011 accident caused or exacerbated her pre-existing injuries, sufficient to satisfy McCormick’s first prong. The Court concluded:
“[P]laintiff has not established a link between the accident and her post-accident condition, either as an injury caused by the accident or a preexisting condition that was exacerbated by the accident. The only medical providers who opined that plaintiff’s condition was caused or exacerbated by the accident were Dr. Diaz and Dr. Farhat of MHSI; however, they specifically stated that their opinion that plaintiff’s condition was not strictly degenerative was informed by their understanding that plaintiff was ‘completely asymptomatic’ (Dr. Diaz) or that her back symptoms had returned to their ‘previous baseline’ and her cervical spine was ‘not an issue’ (Dr. Farhat) before the accident. … [T]wo independent medical examiners, who had not only examined plaintiff but had additionally reviewed her medical records, concluded that plaintiff’s condition was a degenerative one that was not caused or exacerbated by the accident. Additionally, plaintiff’s back and neck treatment by Dr. Rao pre-dated and then essentially continued as normal directly after the accident. Therefore, plaintiff has failed to advance evidence of an objective impairment caused by the accident. Based on the foregoing, we hold that plaintiff has not established that a genuine issue of material fact exists regarding whether the accident caused or exacerbated plaintiff’s preexisting injuries sufficient to satisfy McCormick’s first prong. … Thus, the trial court did not err by granting summary disposition in favor of defendant.”
