Michigan Court of Appeals; Docket # 348176; Unpublished
Judges Jansen, K. F. Kelly, and Cameron; 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In this unanimous per curiam unpublished opinion, summary disposition for defendant was AFFIRMED because plaintiff “failed to produce evidence, which if believed by the finder of fact, could establish that [she] suffered a threshold injury as a result of the July 2016 accident.”
B. Nature of Injury/Disability:
Two days after the accident, plaintiff was diagnosed with post-concussive symptoms. Plaintiff also claimed that she suffered migraine headaches and neck and shoulder pain as a result of the accident. In this regard, the Court stated, “Plaintiff specifically argued that she . . . required injections and extensive and regular treatment for her headaches, and that she was off of work for over one year because of issues with memory, balance, headaches and related nausea. She further argued that she continues to have difficulty with problem solving, she cannot ride a bike because of the head movement, she cannot take her children to ride amusement rides at the fair because it makes her sick and triggers her headaches, and she can only walk–not trot or run–her horses because too much jostling triggers a headache.”
C. Medical Treatment:
Immediately after the accident, plaintiff went home to rest. However, after sleeping for several hours, she was difficult to wake and was complaining of head pain. She was taken to Mid-Michigan Medical Center and had CT scans performed of her head and cervical spine, along with x-ray imaging of her hip and lumbar spine. All results were found to be normal, so she was discharged that same night. “Two days later, plaintiff went to the McLaren Bay Region Emergency Department complaining of headache, nausea, and vomiting following a motor vehicle accident. Plaintiff reported that her symptoms were exacerbated by light and noise, and that she had previously suffered from migraine headaches. Plaintiff was diagnosed as having ‘[p]ostconcussive symptoms following MVA’ and was discharged. . . . Plaintiff followed up with her primary care physicians at Tuscola Physicians, and was referred for an MRI and to physical therapy for continuing pain in her right shoulder and in her neck, and to a neurologist for her continuing chronic headaches. Plaintiff did undergo an MRI on her cervical spine, but that MRI did not reveal any injury. Plaintiff began treating with Auburn Physical Therapy in September 2016. Roughly one month into physical therapy, plaintiff reported that she ‘no longer has constant headaches and has actually been able to go a few days without.’ Indeed, plaintiff reported ‘a 50% improvement since starting PT.’ By November 2016, plaintiff reported a 90% improvement, indicated that her pain varies from day to day and from activity to activity, and reported that her headaches ‘are less but she does still have them.’ Plaintiff was discharged from physical therapy in November 2016, having achieved most of her goals and having ‘reached maximum benefit with skilled services[.]’ . . . Plaintiff began treating with Dr. Khalil M. A. Nasrallah, M.D., at McLaren Bay Regional Neurosciences in May 2017 because of continued migraine headaches. Plaintiff reported nausea, headaches, dizziness, lapse of memory, falls, and excessive worrying as a result of a concussion received in a motor vehicle accident. Dr. Nasrallah began treating plaintiff’s migraine headaches with Botox injections after failing to control her headaches with several migraine prophylactic medications. In addition to Botox treatments, plaintiff was prescribed Tylenol 3 for breakthrough headaches. Plaintiff reported an 80% improvement, and indicated that her headaches do not last as long as before. However, after a year and a half of receiving Botox injections, plaintiff reported their effectiveness was decreasing. Dr. Nasrallah discussed increasing plaintiff’s dosage, and possibly trying a new, recently FDA-approved self-injection medication at home.”
D. Element #1 – Objective Manifestation:
In holding that summary disposition was properly granted below, the court concluded that plaintiff’s claimed impairments were solely related to pre-existing conditions. In this regard, the court stated that while plaintiff claims “her headaches, neck pain, and right shoulder pain constitute an objectively manifested impairment, and that this impairment has affected her ability to lead her normal life. . . ., [w]e cannot agree.” The court then noted that “[P]laintiff sought treatment for upper extremity pain–specifically pain in her right shoulder and thoracic spine–as early as 2013. In February of 2016, before the accident, plaintiff was referred to physical therapy for right shoulder pain by her primary care physicians. Additionally, medical records show that plaintiff admitted to suffering from migraine headaches before the accident.” On this basis, the court admonished that “the critical flaw in plaintiff’s argument is that she was not asymptomatic before the accident. Indeed, she suffered from the exact same complaints, and was even referred to physical therapy for shoulder pain months before the accident. In response to defendants’ motion for summary disposition, plaintiff failed to present any evidence that the accident exacerbated or worsened any of her preexisting physical symptoms, or that she would not have undergone the same physical therapy or neurological treatment but for the accident. None of plaintiff’s diagnostic imaging done after the accident showed the existence of physical injury, and moreover none of her treating physicians averred that her subjective complaints of pain were the manifestation of any injury incurred in or exacerbated by the accident. Even when viewing the evidence in a light most favorable to plaintiff as the nonmoving party, we conclude that plaintiff has failed to produce evidence, which if believed by the finder of fact, could establish that plaintiff suffered a threshold injury as a result of the July 2016 accident.”
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.
