Michigan Court of Appeals; Docket #353882; Unpublished
Judges Gleicher, Borrello, and Swartzle; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impariment (McCormick Era: 2010 – Present) [§3135(5)**]
Causation Issues [§3135]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Fransisco Salinas’s third-party action against Defendants Joanne Hayes and Michigan Millers Mutual Insurance Company (“MMMIC”), and remanded for further proceedings. The Court of Appeals held that Salinas presented sufficient evidence to create a question of fact as to whether the subject motor vehicle collision caused him to suffer an objectively manifested impairment, and that the trial court erred in weighing the evidence and disregarding Salinas’s experts’ testimonies in favor of MMMIC’s experts’ testimonies on a motion for summary disposition.
Salinas was injured when the motor vehicle he was driving, which was owned by his employer, was rear-ended by a vehicle driven by Hayes. Salinas complained of back pain at the scene of the collision, but refused emergency medical treatment. Approximately one week later, he sought treatment for head, neck, and shoulder pain at Oakwood Hospital and Medical Center, where x-rays revealed “degenerative disc findings” in his cervical spine. Approximately one week after his appointment at Oakwood, Salinas exacerbated his back and shoulder injuries after attempting to return to work, and at subsequent appointments at Concentra, he was diagnosed with strains of the cervical, lumbar, and thoracic spinal regions. These strains were confirmed at a subsequent appointment with Dr. Walid Osta, and then an MRI performed by Dr. Michael Paley shortly thereafter revealed “mild levoscoliosis, straightening of the lumbar lordotic curve that could indicate muscular spasm, anterior spondylolisthesis, and foraminal stenosis.” Dr. Paley performed another MRI approximately three weeks later that revealed “bulging disk and hypertriphic bony changes resulting in foraminal stenosis” as well as “straightening of the cervical lordotic curve that could be consistent with either ‘patient positioning’ or 'cervical muscular spasm.’ ” Then, approximately four months later, Salinas was seen by Drs. Jack Belen and Stephen Mendelson at Mendelson Kornblum Orthopedic and Spine Specialists, where he was diagnosed with a partial-thickness tear of his right rotator cuff. Ultimately, Salinas underwent an arthroscopic surgery to repair his shoulder, and Dr. Mendelson opined in an affidavit that Salinas’s shoulder injury “was a new injury or the aggravation of previous injuries, which was the result of the [subject] motor vehicle accident.”
After Salinas’s shoulder surgery, MMMIC ordered that he undergo three medical evaluations with three separate providers. The first did not review Salinas’s shoulder imaging, but disagreed with Salinas’s treaters at Mendelson Kornblum nonetheless, and opined that Salinas suffered “no objective condition” from the subject crash, and that all his problems stemmed from “preexisting degenerative arthritis.” The second examiner agreed, noting that the type of injuries Salinas sustained were inconsistent with those which might be expected as a result of a rear-end collision and opined that Salinas’s injuries were entirely degenerative. The third examiner testified consistent with the previous two, opining that there was no evidence of a significant traumatic injury and that there was no indication that Salinas’s shoulder surgery was a result of the subject collision.
Ultimately, Salinas filed the underlying third-party lawsuit against Hayes and MMMIC, and MMMIC moved for summary disposition, arguing that Salinas failed to demonstrate a serious impairment of body function. In support of its argument, MMMIC adduced the fact that Salinas attempted to return to work after the collision before aggravating his alleged injuries, and that three separate medical examiners opined that his injuries were entirely degenerative and not traumatic. The trial court granted MMMIC’s motion for summary disposition, ruling that Salinas failed to present sufficient evidence that he sustained an objectively manifested impairment—the first prong of the threshold test set forth in McCormick v Carrier, 487 Mich 180 (2010)—because his medical records did not establish a “physical basis” for his subjective complaints of pain. The trial court further ruled that Dr. Mendelson was “not qualified to onion on causation in this instance,” but, as the Court of Appeals noted in its summary of the procedural history of this case, provided no explanation as for why it reached that conclusion.
The Court of Appeals reversed the trial court’s summary disposition order in favor of Hayes and MMMIC, finding that Salinas unquestionably did present sufficient evidence to create a question of fact as to whether he suffered a serious impairment of body function in the subject collision. Specifically, the Court held that the trial court was not permitted to resolve conclusionary disputes between medical providers in ruling on a motion for summary disposition—“conflicting evidence merely establishes a question of fact making summary disposition improper; the trial court is not permitted to weigh the evidence.” Here, the Court of Appeals held that the trial court ignored “extensive medical record evidence documenting [Salinas’s] various injuries to his cervical, thoracic, and lumbar spine, as well as his shoulders,” and that, even though MMMIC’s medical examiners disagreed with Salinas’s treaters’ findings, the trial court was not permitted to favor MMMIC’s experts over Salinas’s on a motion for summary disposition. Salinas’s medical records were replete with diagnoses of conditions that were “observable or perceivable by [his] doctors,” i.e. objectively manifested.
"In this case, although we glean from the trial court’s ruling that its decision was founded on its conclusion that plaintiff had failed to create a genuine issue of material fact regarding the first McCormick prong, it is unclear from the trial court’s explanation how it reached that conclusion. It appears that the trial court’s conclusion rested entirely on its beliefs that (1) there was no evidence of a physical basis for plaintiff’s complaints of pain and (2) there was no evidence that plaintiff’s shoulder impairment for which he was treated by Mendelson was caused by the motor vehicle accident. The record reveals evidence, which if believed, would contradict these determinations by the trial court, thereby creating unresolved questions of fact.
With respect to the trial court’s first reason, a serious impairment must be objectively manifested, meaning that it is ‘observable or perceivable from actual symptoms or conditions by someone other than the injured person.’ MCL 500.3135; see also McCormick, 487 Mich at 196. The trial court in this case seemingly ignored the extensive medical record evidence documenting plaintiff’s various injuries to his cervical, thoracic, and lumbar spine, as well as his shoulders. The record contains evidence that plaintiff’s treating physicians conducted physical examinations and imaging studies and that plaintiff was diagnosed with various conditions of the cervical, thoracic, and lumbar spine that included strains and straightening consistent with potential muscular spasms, as well as a partial-thickness tear in his right rotator cuff. Plaintiff’s shoulder issues prevented him from reaching high shelves, doing his usual work, and lifting more than 10 pounds. Thus, the record contains evidence supporting a conclusion that plaintiff suffered an objectively manifested impairment because there was evidence that plaintiff’s claimed impairments to his neck, back, and shoulders were based on conditions that were observable or perceivable by plaintiff’s doctors. MCL 500.3135; McCormick, 487 Mich at 196; see also id. (stating that the adjective 'objective' is ‘defined specifically in the medical context as ‘[i]ndicating a symptom or condition perceived as a sign of disease by someone other than the person afflicted’ ’) (citation omitted; alteration in original).
Although MMMIC’s medical experts apparently disagreed with various diagnoses and conclusions reached by plaintiff’s doctors, conflicting evidence merely establishes a question of fact making summary disposition improper; the trial court is not permitted to weigh the evidence, make credibility determinations, or make findings of fact when deciding a summary disposition motion. Patrick v Turkelson, 322 Mich App 595, 605-606; 913 NW2d 369 (2018). The trial court’s stated reasoning that plaintiff had not presented 'sufficient' evidence to meet the first prong reflects the trial court’s improper weighing of the evidence presented by the parties to justify its conclusion. Id."
The Court of Appeals further held that Salinas presented sufficient evidence to create a question of fact as to whether his injuries were caused by the accident. The Court first noted that “the trial court did not meaningfully attempt to address causation under the applicable legal standards. Instead, as previously stated, the trial court asserted that Mendelson was ‘not qualified to opine on causation in this instance’ without giving any further explanation . . . ” The Court then highlighted the fact that Salinas complained of back pain at the scene of the collision, that he had no history of back or right shoulder pain before the collision, and that he went to Oakwood with complaints of back, neck, and shoulder pain almost a full week before the work injury where he allegedly exacerbated his injuries. Furthermore, Dr. Mendelson executed an affidavit based on his actual treatment of Salinas and his review of Salinas’s medical records from both before and after the collision and opined that Salinas’s injuries were, in fact, caused by the collision.
"The evidence described above, viewed in a light most favorable to plaintiff as the nonmoving party, demonstrates a 'logical sequence of cause and effect' between the motor vehicle accident and plaintiff’s subsequent shoulder issues such that there was a genuine issue of material fact regarding but-for causation. Patrick, 322 Mich App at 617. Moreover, the evidence was not limited to a simple contention that plaintiff did not have shoulder pain before the accident but experienced shoulder pain after the accident; there was evidence that both plaintiff and Mendelson linked the shoulder issues to the accident. See id. at 619-620 (considering record evidence consisting of both the plaintiff’s statements and medical evidence do determine whether there was a genuine issue of material fact regarding cause in fact). Thus, plaintiff presented evidence of more than a mere temporal relationship. West v Gen Motors Corp, 469 Mich 177, 186 & n 12; 665 NW2d 468 (2003) (stating that a temporal relationship by itself does not establish a causal connection). '[T]he plaintiff is not required to produce evidence that positively eliminates every other potential cause.' Skinner, 445 Mich at 159.
Defendants’ alternate theories that plaintiff merely suffered from preexisting degenerative conditions or that the shoveling incident was actually the sole cause of new or aggravated injury also have record support, but these conflicting theories merely illustrate the genuine questions of fact regarding causation that should properly be resolved by a jury. 'Causation is an issue that is typically reserved for the trier of fact unless there is no dispute of material fact.' Patrick, 322 Mich App at 616. Plaintiff could still potentially recover for impairments that constitute aggravations of preexisting conditions. Wilkinson v Lee, 463 Mich 388, 395; 617 NW2d 305, 308 (2000) ('Regardless of the preexisting condition, recovery is allowed if the trauma caused by the accident triggered symptoms from that condition.'). Additionally, as previously noted, there is no requirement that a person’s general ability to lead his or her normal life has been destroyed or that the impairment last for a specific length of time in order to establish a threshold injury. McCormick, 487 Mich at 202-203. Defendants’ arguments ignore the conflicting evidence in the record regarding the cause of plaintiff’s alleged impairments. Moreover, the trial court did not even consider whether there was a genuine issue of material fact regarding causation with respect to plaintiff’s other alleged neck and back impairments."
