Michigan Court of Appeals; Docket # 352650
Judges Meter, Shapiro, and Riordan
Official Michigan Reporter Citation; Not Applicable; Link to Opinion
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
A. Disposition:
In this unanimous per curiam unpublished opinion, summary disposition for defendant was AFFIRMED by the Court of Appeals because the plaintiff failed to present sufficient evidence to establish that she suffered an objectively manifested impairment.
B. Nature of Injury/Disability:
The plaintiff in this case was injured when her vehicle was rear-ended by defendant’s vehicle. Following the accident, plaintiff claimed that her back and head were aching, and she was subsequently taken to the emergency room for treatment. She ultimately claimed injuries to her head, neck, back, right shoulder, and right leg.
C. Medical Treatment:
Immediately following the accident, plaintiff was taken to the emergency room with complaints of back and head soreness and aching. Unspecified x-rays were taken and found to be “normal.” After the accident, plaintiff was prescribed physical therapy for her right shoulder, neck, and back pain. With regard to plaintiff’s head, about a month after the accident, plaintiff underwent a CT scan on May 17, 2017, which was found to be normal. A couple of months later, an MRI of her cervical spine showed “some straightening of the ‘normal cervical lordosis,’ which ‘could indicate muscle spasm.’” She also had x-rays taken of her lumbar and thoracic spine, which were found to be normal. An MRI later taken of plaintiff’s lumbar spine showed “no disc herniation, foraminal narrowing or spinal stenosis.” Plaintiff was then referred to Michigan Orthopaedic Institute for treatment, where Dr. Lawrence Kurz, M.D. found “no tenderness, spasm or masses” on her cervical, thoracic and lumbar spine. She was also found to have a normal range of motion. Plaintiff then underwent a MRI of her cervical spine that revealed “some straightening of the ‘normal cervical lordosis,’” which was also noted in a pre-accident MRI the year prior. An x-ray taken of plaintiff’s hip was “negative for any acute process.” Plaintiff also underwent an MRI of her right shoulder, which revealed that “there may be a small partial-thickness tear along the articular tendon,” but was otherwise unremarkable. The MRI was later reviewed by an orthopedic surgeon, Nicholas Dutchenshen, M.D., who found no shoulder tear. With regard to plaintiff’s hip, the Court found it significant that when plaintiff was seen in the emergency room approximately four months after the accident for hip pain, the examining physician noted that plaintiff was “malingering regarding her hip and shoulder symptoms,” stating that she “would unnaturally contort in an attempt to over emphasize areas of discomfort then return to normal again as soon as she was distracted.” This type of behavior was also noted by yet another orthopedic surgeon regarding her shoulder, in which the doctor indicated that “[t]he patient is concerned that her shoulder ‘drops.’ When standing, the shoulder girdle on the right volitionally is held in a lower position. Of note, when seated, the shoulders are held symmetrically. The patient is very adamant about correcting this problem. Ultimately, I feel that this is volitional—whether intentional or not.” Plaintiff was subsequently treated by another orthopedic surgeon over a month later and was given a cortisone injection in her shoulder for the pain. The Court ultimately noted that “all of her claimed injuries resolved in November 2017,” approximately seven months after the accident.
D. Element #1 – Objective Manifestation:
In finding that the plaintiff did not suffer an objectively manifested impairment, the Court focused heavily on the absence of supporting radiological evidence and the fact that two physicians had observed malingering pain and engaging in symptom magnification. In this regard, the Court concluded, “In sum, plaintiff fails to show that there is a physical basis for her subjective complaints of pain. No medical imaging or testing supported her claimed shoulder impairment, and two physicians observed malingering or symptom magnification relating to her right shoulder. At an initial visit plaintiff’s primary physician noted his impression of a ‘shoulder injury,’ but no objective basis for that initial nonspecific diagnosis was ever discovered in subsequent imaging or examinations by multiple physicians. For these reasons, we conclude that plaintiff failed to meet the ‘serious impairment’ threshold as a matter of law.”
E. Element #2 – Important Body Function:
The court did not discuss this element.
F. Element #3 – General Ability:
The Court of Appeals noted that the trial court also concluded that the plaintiff also failed to “adequately” demonstrate that her claimed impairments affected her general ability to lead her normal life. However, the Court of Appeals did not review this finding on appeal given its holding that the plaintiff failed to satisfy the objective manifestation element as a matter of law. In this regard, the Court stated in footnote 6 of its opinion, “Because we conclude that plaintiff did not establish an objectively manifested impairment caused by the accident, and therefore did not suffer a serious impairment of bodily function, we need not address plaintiff’s argument that her claimed impairments affected her general ability to lead her normal life.”
