Michigan Court of Appeals; Docket No. 339316
Judges Borrello, Sawyer, and Jansen; Unanimous per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
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)**]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals held that summary disposition was improperly granted below because: (1) competing medical evidence was sufficient to create a question of fact regarding whether Plaintiff Mandell Hollings (“Hollings”) suffered an objectively manifested impairment under McCormick, and (2) Hollings presented sufficient evidence to establish that his claimed impairments affected his general ability to lead his normal life.
Hollings was “nicked” by Defendant Scott O’Brien’s vehicle while Hollings was attempting to cross a residential street as a pedestrian. Plaintiff immediately complained of pain in his right side and stomach. He was taken by a friend to Detroit Receiving Hospital where emergency room doctors performed x-rays, and determined that plaintiff had “grade 1 retrolisthesis, which was defined as ‘the backward slippage of one vertebra onto the other vertebra immediately below, in his lumbar spine.’” Doctors further determined that plaintiff was suffering from a straightening of the cervical lordosis. Hollings was then discharged with instructions to follow up. Approximately one week later, he saw Dr. Marvin Bleiberg with complaints of “back pain, neck pain, shoulder pain, and knee pain.” Hollings represented that he could not perform any household activities, could not bend over, and could not sit or stand for any length of time. After a physical examination, Dr. Bleiberg determined plaintiff was suffering from “a limited range of motion in his neck and back, and further had sustained a cervical sprain/strain, lumbar strain/sprain, lumbosacral radiculitis, shoulder pain, hip pain, limb pain, myofascitis, acute pain due to trauma, muscle spasms, and insomnia.” An MRI was taken, which “confirmed that plaintiff was suffering from a straightening of the cervical lordosis, a lumbar annular disc bulge and small disc protrusion over L4-L5 and L5-S1.” An additional MRI of plaintiff’s knee was taken, which further revealed “a complex tear of the posterior horn over the medial meniscus in the right knee, and a posterior horn meniscal tear and mild chondromalacia of the patellofemoral joint in his left knee.” Hollings was prescribed “pain medication and topical ointment, injections, chiropractic care and physical therapy, medical transportation services, case management services, household replacement services, and a brace for plaintiff’s lumbar spine injuries.”
An independent medical examination (IME) was later performed by Dr. Neil Friedman, who examined plaintiff in person, and also reviewed plaintiff’s medical records from Dr. Bleiberg and his chiropractor. Dr. Friedman found that plaintiff was suffering from “minimal disc protrusion and mild diffuse degenerative changes in his spine, but found no abnormality appearing to be the result of any trauma.” Plaintiff then submitted to a second IME performed by Dr. Zydeck, who determined based on Hollings’ medical records and his MRI that “plaintiff was suffering from posterior disc bulges at L4-L5 and L5-S1, as well as disc protrusions at C4-C5 and C5-C6.” Dr. Zydeck further opined that “the posterior disc bulges at L4-L5 and L5-S1 were degenerative, but did not comment on the cause of the disc protrusions at C4-C5 and C5-C6.”
In finding that this evidence created a question of fact regarding whether Hollings satisfied the objective manifestation element under McCormick, the Court of Appeals reasoned that “Dr. Bleiberg first based his diagnoses only on a physical examination, but he maintained his original diagnoses after performing diagnostic imaging, namely an MRI and EMG. Additionally, plaintiff’s MRIs showed a complex tear of the posterior horn of the medial meniscus with extension toward the root in plaintiff’s right knee, and a posterior horn meniscal tear and mild chondromalacia of the patellofemoral joint in his left knee. Dr. Bleiberg believed that plaintiff’s injuries were sustained in the accident. On the other hand, Dr. Friedman and Dr. Zydeck, who performed IMEs on plaintiff, believed that his injuries were from degenerative conditions. When all three doctor’s opinions are viewed together, it is clear that a genuine issue of material fact concerning the nature and extent of plaintiff’s injuries exist. The trier of fact need not accept Dr. Bleiberg’s, Dr. Friedman’s, or Dr. Zydeck’s conclusions, however, because there ‘is a genuine question of fact concerning the nature and extent of [plaintiff’s] injuries, the threshold question of whether [plaintiff] suffered a ‘serious impairment of a body function’ may not be decided as a matter of law.’”
After finding that Hollings presented sufficient evidence to satisfy the objective manifestation element under McCormick, the Court further held that “when the record evidence is viewed in a light most favorable to plaintiff, it establishes that plaintiff's individual ‘capacity to live his pre-incident manner of living was affected, and the third prong of’ the McCormick test is satisfied.” In so holding, the Court noted that “[i]mmediately after the accident, plaintiff's wife assisted him with cooking, cleaning, doing laundry, grocery shopping, bathing, and applying his topical pain reliever. Plaintiff also had to hire a service to cut his grass and remove snow. However, as of June 2014, plaintiff's injuries had improved. Although plaintiff still complained of occasional back pain and knee stiffness, he could essentially perform all of his normal activities, unless he was in too much pain.” The Court then commented that “[a]dmittedly, plaintiff's lifestyle prior to the accident was somewhat limited due to disability. Plaintiff's testimony established that prior to the accident, he used to do yard work, play sports with his children, shop for groceries, and maintain his home. After the accident, plaintiff's wife had to do plaintiff's housework and grocery shopping for seven months. Plaintiff also had to pay someone to do his yard work for that time period. Plaintiff argues that although he has been able to resume normal activities, so long as he is not suffering from occasional recurring neck, back, or knee pain, for the seven months immediately following the accident, his objectively manifested injuries affected his ability to live his normal life.”
