Michigan Court of Appeals; Docket # 340717; Unpublished
Judges Tuckel, Shapiro, and Gadola; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(7)]
General Ability/Normal Life Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(7)]
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion, summary disposition for defendant was REVERSED because the plaintiff presented sufficient evidence to create a question of fact regarding whether his claimed impairments constituted an objectively manifested impairment, and regarding whether his claimed impairments affected his general ability to lead his normal life.
B. Nature of Injury/Disability:
Following the accident, the plaintiff was diagnosed with a “knee contusion and lower back discomfort.” An emergency room x-ray taken of plaintiff’s lumbar spine showed “mild stable retrolisthesis of L5 on S1.” Retrolisthesis is defined as “the backwards slippage of one vertebral body on another ....” An MRI of plaintiff’s lumbar spine taken approximately one month after the accident showed an “extruded herniated disc” at L4-5, with “probable right L4 nerve root impingement,” and a “right paracentral herniation” at L5-S1, with impingement of the “right S1 nerve root.” Plaintiff’s medical records show that he had chronic low back pain before this incident and that he had been involved in several other accidents. The court noted, however, that “Plaintiff testified that his back pain increased significantly following the [subject] accident. He testified that he was previously able to work a labor-intensive job. He did not return to work after the accident, believing that he could [no] longer perform the tasks required by his employment given the pain he was experiencing. His treating physicians issued disability certificates following the accident and thereafter.”
C. Medical Treatment:
The Court did not specify the nature of plaintiff’s post-accident course of treatment in detail, and only noted that “Plaintiff was prescribed physical therapy, chiropractic treatment, and medication after the accident. He also underwent two series of three epidural steroid injections. Dr. Martin Kornblum oversaw plaintiff’s first series of epidural injections, and given that plaintiff did not benefit from the treatment, Dr. Kornblum opined that plaintiff should consider lumbar fusion surgery.”
D. Element #1 – Objective Manifestation:
In holding that plaintiff presented sufficient evidence to create a question of fact regarding whether his claimed impairments were objectively manifested, the Court reasoned that “Plaintiff’s medical imaging” and a “reduced range of motion” would support a finding that plaintiff suffered objectively manifested impairments. However, “surveillance footage of plaintiff is evidence for the defense.” On that basis, the Court concluded that when “viewing the evidence as a whole, and in a light most favorable to plaintiff, there is a question of fact as to whether he suffered an objectively manifested impairment.”
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
In holding that the plaintiff presented sufficient evidence to create a question of fact regarding whether his claimed impairments affected his ability to lead his normal life, the court found it significant that “Plaintiff has testified that his back pain and limitation significantly worsened after the accident, which was consistently documented in his statements to medical providers. Based on their examinations and findings, plaintiff’s physicians directed him not to return to work and to undergo multiple treatment modalities including spinal steroid injections. . . . Plaintiff [also] testified that he has been unable to return to work following the accident, and his physicians issued certifications of work disability. Dr. Stephens, defendants’ expert, opined that plaintiff is capable of working a sedentary or clerical job, the implication being that plaintiff can no longer perform the labor-intensive work he had before the accident. Whether plaintiff can no longer work as a laborer is relevant to whether his impairment has affected his general ability to lead a normal life.” Given the foregoing, the court concluded that genuine issues of material fact regarding the nature and extent of Plaintiff’s injuries preclude summary disposition.
