Michigan Court of Appeals; Docket # 348386; Unpublished
Judges Gleicher, M. J. Kelly, and Markey; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Dissent
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
SUMMARY:
A. Disposition:
In this 2-1 per curiam unpublished opinion, summary disposition for defendant was REVERSED because: (1) the plaintiff produced sufficient evidence to create a question of fact regarding whether his injuries were objectively manifested; and (2) the record demonstrated that Plaintiff’s injuries affected his general ability to lead his normal life.
B. Nature of Injury/Disability:
Plaintiff denied any injury at the scene of the accident. On his drive home, he started to have back pain. He was seen two days later at the Western Michigan University Health Center and was found to have “no obvious abnormality.” However, the provider noted that plaintiff’s pain was “suggestive o[f] disc inflammation, suspect exacerbation of same from [motor vehicle accident].” Two years after the accident, a physical medicine and rehabilitation specialist noted that he was “tender to palpation along the midline lumbar spine approximately L4 through S1 region, both midline and paraspinals,” and that his “lumbar range of motion was ‘mildly reduced in extension with reports of low back pain.’” The following year, a pain consultant diagnosed plaintiff with “[s]pondylosis w/o myelopathy or radiculopathy; lumbar region.” The plaintiff claimed that his injuries affected his ability to complete two semesters of school and engage in hobbies that he enjoyed before the accident. He further claimed that his low back pain “interfered with his sleep and created difficulty in getting dressed and out of bed or chairs.”
C. Medical Treatment:
Plaintiff denied any injury at the scene of the accident. On his drive home, he started to have back pain. He was seen two days later at the Western Michigan University Health Center where presented with the above discussed complaints of pain. After “no obvious abnormality” was found, he was prescribed Motrin. Approximately two weeks after the accident, the plaintiff went to his primary care physician with complaints of back pain. X-rays were ordered and no fracture or dislocation was found. He was prescribed “an analgesic and physical therapy, and restricted [plaintiff] from lifting anything over 20 pounds.” Plaintiff then attended 12 physical therapy appointments, but his lower back pain remained present. He then treated with a chiropractor. About two years after his accident, he consulted with a physical medicine and rehabilitation specialist. The next year, he treated at a pain clinic. The treatments at the pain clinic included six medial branch block injections in the lumbar area.
D. Element #1 – Objective Manifestation:
In finding that the plaintiff produced sufficient evidence to create a question of fact regarding whether his injuries were objectively manifested, the court noted that Plaintiff offered “two letters of record attesting that the accident caused Birchfield’s back pain.” The court then noted that “other evidence supports that Birchfield has sustained objectively manifested impairments due to his persistent back pain. Two different examiners found that Birchfield’s range of motion was limited by his pain, and one noted that he experienced observable muscle spasms.” On this basis, the court concluded that, “while not overwhelming,” the evidence in this case is “not so thin as to preclude a reasonable juror from concluding that Birchfield suffered an objectively manifested impairment as a result of the accident.”
The court further found that in granting summary disposition for the defendant below, the trial court incorrectly relied on the existence of prior back pain complained of by plaintiff before the accident. In so finding, the court admonished that “exacerbation by a subsequent injury may result in an impairment of body function. . . . The pertinent inquiry is whether the plaintiff did, in fact, suffer aggravation of a preexisting condition because of the accident. Here, the letters provided by Birchfield’s own physician support that the accident caused the back pain he experienced shortly after the December 2015 accident.”
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
In finding that the plaintiff satisfied the general ability element under McCormick, the court first recognized that “the legal threshold, however, only requires evidence that his injury affected his general ability to lead his normal life.” The court then held that “Birchfield has satisfied that threshold.” In so holding, the court noted that “Birchfield testified that his back pain made it impossible for him to complete two semesters of his electrical engineering program, which set his education back for one full year. Due to the now-chronic pain in his back, Birchfield claims that he is unable to participate in the hobbies he enjoyed before the injury, particularly concert attendance, racquetball and longboarding. The limitations of the activities Birchfield enjoyed ‘might not rise to the level of a serious impairment of body function for some people,’ but for Birchfield, who identified a limited range of hobbies and activities, the impairments ‘may rise to the level of a serious impairment of a body function.’ Williams v Medukas, 266 Mich App 505, 509(2005).”
G. Other Comments:
Judge Markey dissented and concluded that the plaintiff’s claim was supported only by subjective complaints of pain, stating that “the dispute did not encompass necessary evidence of a non-subjective, physical basis for plaintiff’s subjective complaints of pain linked to the accident. Therefore, while there may have been an impairment, it was not objectively manifested as a matter of law.”
