Michigan Court of Appeals; Docket # 345328; Unpublished
Judges Kelly, Fort Hood, and Borrello; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
General Ability/Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**)]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)**]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion, the Court of Appeals REVERSED summary disposition for defendant because the plaintiff presented sufficient evidence to support a finding that a question of fact existed concerning the nature and extent of his injuries.
B. Nature of Injury/Disability:
A short time after the accident, plaintiff was seen at urgent care “complaining of back pain, blurred vision, headaches, and dizziness. The physician at the urgent care facility “observed that plaintiff had a limited range of motion in his spine, significant muscle spasms in his spine, and lumbar tenderness.” Other medical professionals “believed that plaintiff could have had a concussion or even a traumatic brain injury. MRI reports revealed several bulging and potentially herniated discs in plaintiff’s spine, and electromyography reports of plaintiff’s upper and lower extremities were suggestive of bilateral radiculopathy—or a pinched nerve. Although he did not do so, it was recommended that plaintiff have surgery for a herniated disc. Additionally, plaintiff was referred to physical therapy and a chiropractor, and work restrictions were imposed.” In contrast to the foregoing, independent medical exams found no “objective evidence of any injury or condition arising from the accident,” and opined that his injuries “preexisted the accident,” At least one IME reported that “plaintiff’s neck and back pain could be related to the accident.” During his deposition, plaintiff testified that his injuries significantly affected his sleep, which caused him to “frequently experience fatigue.” The plaintiff further alleged that his fatigue affected his motivation to fully participate in some of the activities he enjoyed before the accident, “including exercise and photography,” and reading for enjoyment.
C. Medical Treatment:
Plaintiff was treated at urgent care a short time after the accident. He later underwent MRIs that revealed “several bulging discs in plaintiff’s spine” for which he was referred for surgery that he did not undergo. He also had electromyography tests of his upper and lower extremities that were “suggestive of bilateral radiculopathy—or a pinched nerve.” Plaintiff was later sent to physical therapy and a chiropractor for treatment.
D. Element #1 – Objective Manifestation:
The Court of Appeals held that the existence of the foregoing conflicting medical evidence created a question of fact regarding whether the plaintiff’s claimed impairments were objectively manifested. In so holding, the court reasoned that “although some of the independent medical evaluators would disagree, for the purposes of this Court and summary disposition, plaintiff has provided at least some evidence that he suffered some level of brain and spine injury from the accident that has caused continuing headaches and pain, and, at the very least, has created a question of fact concerning the nature and extent of his injuries. This factual dispute is material to determining whether the serious impairment of body function threshold is met because the conflicting medical evidence is relevant to determining whether plaintiff suffered an objectively manifested impairment.”
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
In arriving at its holding, the court further concluded that plaintiff identified “numerous ways in which his injuries . . . impacted his life.” In particular, the court noted, “Plaintiff testified that, after the accident, his back pain prevented him from sleeping through the night and from falling into a deep sleep. As a result, plaintiff frequently experienced fatigue. This fatigue and a resulting lack of motivation caused plaintiff to no longer fully participate in some of the activities he enjoyed before the accident, including exercise and photography. Plaintiff also testified at his deposition that his ability to read and comprehend reading has been strained. Plaintiff experiences eye fatigue and no longer reads for enjoyment.”
