Michigan Court of Appeals; Docket # 348176; Unpublished
Judges Markey, K. F. Kelly, and Tukel; 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)**]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
A. Disposition:
In this unanimous per curiam unpublished opinion, summary disposition for defendant was REVERSED because the “plaintiff presented evidence, albeit slight in comparison to the countervailing evidence, that she suffered an objectively manifested impairment as a result of the 2017 accident.”
B. Nature of Injury/Disability:
Immediately following the accident, plaintiff was diagnosed with an “acute cervical strain.” Two weeks later, the plaintiff was subsequently diagnosed with “[l]ower back pain/radiculopathy,’ ‘cervical sprain strain/radiculopathy,’ and ‘[p]aresthesias.’” Prior to the subject accident, plaintiff was involved in an automobile accident and had been previously diagnosed with low back and cervical strains. However, she did not have any physical limitations as of the date of the 2017 accident at issue. MRI examinations of plaintiff’s cervical and lumbar spine were conducted approximately a month after the accident and “revealed ‘[s]table central disc protrusion at C5-6 which indents the central ventral thecal sac’ in connection with her cervical spine, and ‘[l]oss of lordosis,’ ‘[s]table broad-based disc bulge at L4-L5 which effaces the ventral thecal sac and abuts the intrathecal nerve roots with a stable annular fissure/tear,’ and a ‘[h]emangioma in the body of L5’ in connection with her lumbar spine. [However,] the MRI reports did not specify whether plaintiff’s disk conditions were caused or aggravated by accident-related trauma.” Plaintiff claimed that the 2017 accident had “‘a significant impact on [her] life, physically, emotionally, financially and with [her] family relations.’ According to plaintiff, although she resumed working full time in June or July 2018 as a receptionist at a dental office, because of her back pain, plaintiff often had to rise from her chair and walk around; plaintiff also used lumbar support to relieve the pressure in her lower back. Plaintiff further complained that her ability to engage in yoga or personal exercise was limited after the 2017 accident, and that she performed housework only on the weekends because of pain and other limitations from overexertion.”
C. Medical Treatment:
Plaintiff was taken by ambulance to the hospital with complaints of pain in her neck and lower back, a headache, and leg weakness. A CT scan of her head and cervical spine was taken and “revealed no acute fracture and a normal alignment of the cervical spine and facet joints.” She was diagnosed with an acute cervical strain and discharged the same day. Two weeks after the accident, plaintiff was seen by a physical medicine and rehabilitation physician, Dr. Arvinder Dhillon, because she was experiencing “a lot of pain” when she was “in bed.” Dr. Dhillon diagnosed plaintiff with “‘[l]ower back pain/radiculopathy,’ ‘cervical sprain strain/radiculopathy,’ and ‘[p]aresthesias.’” He also issued disability certificates, which restricted her from work, housework, driving, and recreational activity. He prescribed some attendant care for her, ordered MRIs of “plaintiff’s lumbar and cervical spine ‘because of her previous injuries and worsening of her symptoms with radicular components,’ prescribed pain medication, and referred her to physical therapy, which plaintiff engaged in for several months.” Plaintiff treated with Dr. Dhillon for several months, and he continued to disable her from work, housework, and recreational activity as late as January 14, 2018. About five months after the accident, plaintiff had an independent medical evaluation performed by Dr. Raymond Bauer, who opined that “plaintiff did not need any further treatment, disability, or replacement services.” However, in December 2017, plaintiff consulted with a spine surgeon, Dr. Teck Soo, complaining that she had an “exacerbation of her symptoms following the February 2017 accident.” Dr. Soo found plaintiff’s MRI to be “unremarkable.”
D. Element #1 – Objective Manifestation:
In holding that the plaintiff presented sufficient proof to establish that she suffered an objectively manifested impairment, the Court first reiterated that “the aggravation or triggering of a preexisting condition can constitute a compensable injury.’ Fisher v Blankenship, 286 Mich App 54, 63; 777 NW2d 469 (2009). ‘Regardless of the preexisting condition, recovery is allowed if the trauma caused by the accident triggered symptoms from that condition.’ Wilkinson v Lee, 463 Mich 388, 395; 617 NW2d 305 (2000). The exacerbation of a degenerative condition by subsequent injury can constitute impairment of body function. Washington v Van Buren County Road Comm, 155 Mich App 527, 529-530; 400 NW2d 668 (1986).” The Court then noted that “the medical report of Dr. Dhillon, who treated plaintiff for several months after the 2017 accident, provided sufficient evidence that her disabling post-accident condition was objectively manifested and resulted from that accident.” The court then recognized that his report acknowledged a “worsening of her symptoms with radicular components” following the 2017 accident,” and that in this case, “the evidence clearly shows that plaintiff was largely asymptomatic before the subject accident, but afterward she experienced severe and constant back pain, neck pain, and radicular symptoms. Dr. Dhillon noted a decreased range of motion in plaintiff’s back and neck, along with decreased muscle strength in her left lower leg and ‘hypoactive reflexes’ in her lower extremities. He diagnosed plaintiff with a cervical sprain/strain, a lower back sprain/strain with pain, and cervical and lumbar radiculopathy. Noting a ‘severe’ disability, for several months after the accident, Dr. Dhillon restricted plaintiff from working, housework, driving, and recreational activity, and also initially prescribed attendant care.”
E. Element #2 – Important Body Function:
The Court did not discuss this element.
F. Element #3 – General Ability:
The Court did not further discuss this element.
