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Harmon v Ewing, et al  (COA – UNP 6/10/2021; RB #4278)

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Michigan Court of Appeals; Docket #350847;  Unpublished
Judges Stephens, Sawyer, and Beckering;  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)**]

TOPICAL INDEXING: 
Not Applicable


SUMMARY:
In this 2-1 unpublished per curiam decision (Stephens, dissenting), the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Jasmine Harmon’s third-party action against Defendants Tomas James Ewing, Thomas E. Mason, and Julia Lynn Everett. The Court of Appeals held that Harmon failed to present sufficient evidence to create a question of fact as to whether she suffered a serious impairment of body function as a result of the crash—specifically, whether she suffered an objectively manifested impairment.

Harmon was injured in a multiple motor vehicle collision caused by Defendants Ewing, Mason, and Everitt, but did not lose consciousness and was able to exit the vehicle and walk around immediately thereafter. She denied emergency medical treatment and did not inform the responding police officer that she was injured or hurt. She later testified, however, that she felt pain in her right arm, chest, neck, upper back, and right ribs as a result of the impact.

Harmon received treatment at Oakwood Annapolis Hospital, Detroit Receiving Hospital, and her primary care physician over the next two weeks, but multiple physical examinations, x-rays, ultrasounds, and a CT scan revealed no acute processes or injuries. Her records from Detroit Receiving Hospital showed a diagnosis of “acute left rib contusion,” and her records from her primary care physician show that she was prescribed pain medication for her symptoms.

Harmon moved to Atlanta, Georgia shortly thereafter and began treating with a chiropractor, Dr. Leana Kart. Harmon received treatment in February of 2016, and again in September 2016. Approximately one year after the crash, Dr. Kart signed a disability certificate for an approximately two-week period from November 2016 to December 2016. On the certificate, Dr. Kart indicated that the reason for Harmon’s disability was “ ‘low back and neck pain due to spinal trauma.’ ” She later diagnosed Harmon with a cervical sprain strain, muscle spasms, shoulder segmental dysfunction, lumbar sprain strain, and sacroiliac joint sprain strain, and opined that her “ ‘objective findings and [Harmon’s] subjective complaints are directly related to the accident.’ ”

One month later, Harmon underwent her first of three independent medical examinations, with the examiner confirming Dr. Kart’s diagnoses, but opining that the chiropractic intervention was unnecessary. In June 2017, Harmon underwent more x-rays, all of which were normal. She then filed the underlying third-party negligence action against all three aforementioned defendants, and submitted to two more defense medical examinations, with both examiners concluding that there was no objective basis for Harmon’s subjective complaints. Each defendant then moved for summary disposition, which the trial court granted, finding that Harmon failed to satisfy the first and third prongs of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010): whether she suffered an objectively manifested impairment, and whether that impairment affected her general ability to lead her normal life.

The Court of Appeals affirmed the trial court’s summary disposition order, but only analyzed the first prong of the McCormick test. The Court held that the “defendants established through hospital records, records of plaintiff’s x-ray results, and reports from three physicians who examined plaintiff that there were no objective findings . . . to support plaintiff’s subjective complaints . . . ” In so holding, the Court disregarded Harmon’s official diagnoses from Dr. Kart, reasoning that those diagnoses were “based on subjective data” which “is not sufficient under McCormick to establish a triable question of fact.” Notably, the Court did not expand on this reasoning.

"Unlike the McCormick plaintiff, the present plaintiff has presented no evidence of any identifiable, specific injury related to the accident. The McCormick plaintiff could point to his broken ankle as the physical basis for various observable conditions affecting his ability to walk, crouch, climb, and lift weight. However, the present plaintiff presents no such objective evidence of an underlying physical injury from which could arise conditions or symptoms perceivable by others. To the extent plaintiff presents her chiropractor’s diagnosis of a sprain/strain, this diagnosis is based on plaintiff’s recitation of her history of back pain and on a clinical examination that relied on plaintiff’s subjective assessment of the type and severity of her pain. Even if the Court assumes for the sake of argument that plaintiff’s limited range of motion is an impairment, plaintiff has presented no evidence that it was objectively manifested. The only evidence she has presented of any alleged impairment is her own subjective complaints of pain and self-imposed limitations."

Justice Stephens, dissenting, noted that an injured plaintiff need not necessarily present x-rays or MRIs confirming an acute injury in order to satisfy the first prong of the McCormick test. Rather, “ ‘objective’ means that the evidence in support of an injury need only be admissible evidence,” and, in Justice Stephens’s opinion, the diagnosis of a rib injury from Detroit Receiving Hospital and the diagnoses of Dr. Kart—which were objectively based on several orthopedic tests or maneuvers which are accepted within the chiropractic community—constituted sufficient evidence to create a question of fact as to whether Harmon suffered an objectively manifested impairment.


Lansing car accident lawyer Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

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