Michigan Court of Appeals; Docket # 353606; Unpublished
Judges Riordan, Markey, and Swartzle; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Entitlement to No-Fault PIP Benefits: Bodily Injury Requirement [§3105(1)]
Entitlement to No-Fault PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
Causation Issues [§3135]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – Present [§3135(7)]
Serious Impairment of Body Function Definition (McCormick Era: 2010 – Present [§3135(5)**]
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In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Jeanine D. Smith’s first-party action against Defendant City of Detroit, as well as Smith’s third-party action against Defendants Elliott Baum and Natalie Baum. Regarding Smith’s first-party action against the City of Detroit, the Court of Appeals held that Smith presented sufficient evidence to create a question of fact as to whether she suffered an accidental bodily injury in the subject crash for purposes of no-fault PIP benefit entitlement under MCL 500.3105(1). Regarding Smith’s third-party action against the Baums, the Court of Appeals held that Smith presented sufficient evidence to create a question of fact as to whether the subject crash caused her to suffer a serious impairment of body function.
Jeanine Smith was injured in a bus versus motor vehicle crash on May 5, 2017 while traveling on the subject bus, owned by the City of Detroit. The crash was caused by Natalie Baum failing to maintain her lane integrity while driving a vehicle owned by her father, Elliott Baum. A city service inspector issued a report after the crash in which he asserted that no one on the bus was injured as a result the crash, and no EMS was dispatched to the scene. Smith provided a written statement to police after the crash, however, in which she asserted that the crash caused her body to shift, resulting in instantaneous back pain. Three days after the crash, Smith went to the emergency room and had x-rays taken of her back, revealing “no acute traumatic abnormalities,” and was discharged after being diagnosed with a “[l]umbosacral strain.” An MRI was performed one month after the crash, on June 6, 2017, the radiologist’s impression of which provided that it was an “essentially unremarkable examination of the lumbar spine and sacrum.” On September 15, 2017, Smith underwent an EMG which revealed “[n]o electrodiagnostic evidence for a lumbar radiculopathy” and “[n]o electrodiagnostic evidence for a Lower Limb Neuropathy.” Then, on November 8, 2017, Smith underwent an MRI of her cervical spine and an MRI of her lumbar spine. The MRI of her cervical spine revealed a herniated disc at C4-5, disc bulges compressing the thecal sac at C5-C6 and C6-C7, and a “sprain to the right transverse and alar ligament with subtle increase in the right paraodontoid space” at C1-C2. The MRI of her lumbar spine revealed disc bulges compressing the thecal sac at L4-L5 and L5-S1.
Defendants had all these various MRIs reviewed by a neuroradiologist, Dr. Michael Zydeck, who repeatedly concluded that there was no evidence of acute post-traumatic injury in Smith’s spine. Smith also underwent an IME by Dr. Steven Arbit, in which he opined that “ ‘[Smith] most likely had a sprain/strain as a result of the accident in question,” but that she did not need further treatment. Smith’s primary care physician, Dr. Anthony Spearman, saw Smith almost two months after the collision and “noted that Smith had lower back pain, muscle spasms in her back, generalized muscle weakness, unsteadiness, and other abnormalities in her gait.” After another MRI of Smith’s thoracic spine in January of 2018, on which radiologists observed herniated discs/protrusions compressing the thecal sacs at T6-T7, T7-T8, and T8-T9, Dr. Zydeck again opined, after review of the images, that there was no evidence of any acute post-traumatic injury. The Baums also obtained a letter from neuroradiologist Dr. Adeel Khalid, in which he concurred with Dr. Zydeck’s conclusion, writing that the MRIs showed only normal degenerative changes that could not be linked to the crash, as well as a report from a biomechanical engineer who argued that the physical dynamics of the crash would not have caused the spine injuries Smith alleged were caused by the crash.
Smith, for her part, presented an affidavit from Dr. Marvin Bleiberg, a specialist in physical medicine, rehabilitation, and pain. Dr. Bleiberg treated Smith from August 2017 to April 2018 and testified that his physical examinations of Smith revealed “involuntary muscle spasms in the paravertebral muscles and posterior thoracic and lumbar muscles.” He further testified that Smith lost her normal lordotic curve as a result of rotoscoliosis and developed a list to her right, all of which he attributed to the crash. Furthermore, he reviewed the November 8, 2017 MRI and the January 10, 2018 MRI, and “opined that these MRIs reflected or demonstrated objective manifestations of injuries arising out of the accident and were totally consistent with his diagnoses and Smith’s subjective complaints of pain.” Additionally, he “opined that Smith ‘is and has been totally disabled since the bus accident,’ and that her ‘important body functions have been impaired by [the] bus accident,’ ” necessitating attendant care, household services, transportation, and case management.
Despite Dr. Bleiberg’s affidavit, the trial court summarily dismissed Smith’s first- and third-party actions against the City of Detroit and Baum. The trial court relied only and entirely on the June 6, 2017 MRI, and did not address or acknowledge any of the other medical records or evidence submitted by Smith.
The Court of Appeals reversed the trial court’s summary disposition order, holding first that Smith presented “more than sufficient evidence” to create a question of fact as to whether she suffered an accidental bodily injury entitling her to no-fault PIP benefits from the City of Detroit. The Court noted that an injured person need not demonstrate an “objectively manifested” impairment in order to qualify for PIP benefits under MCL 500.3105, and that the standard for proving an accidental bodily injury for purposes of PIP benefit entitlement under MCL 500.3105 is much lower than establishing a threshold injury for purposes of tort liability under MCL 500.3135. The evidence in this case—Smith’s deposition testimony, in and of itself; Dr. Bleiberg’s affidavit; even Dr. Arbit’s IME, in which he opined that Smith suffered a sprain or strain as a result of the crash—were more than sufficient to create a question of fact as to whether Smith suffered an “accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle.”
"With respect to the claim against the city seeking no-fault PIP benefits, there was more than sufficient evidence to create a genuine issue of material fact regarding whether Smith suffered an injury arising out of or caused by the accident involving the bus. Neither the no-fault act nor the caselaw construing the no-fault act requires that the evidence of injury be objectively or medically identifiable or that the injury be objectively manifested. Smith’s deposition testimony, in and of itself, supplied evidence that she sustained injuries as a result of the accident. And assessments regarding her credibility and the weight of her testimony are matters for a jury, not this Court or the trial court. Pioneer State, 301 Mich App at 377. Additionally, the ER report indicated that Smith suffered a ‘lumbosacral strain,’ and in her statement to the police, Smith claimed that she felt pain when the accident occurred. In Dr. Arbit’s IME report, he observed that it was his opinion that Smith ‘most likely had a sprain/strain as a result of the accident in question.’ Undoubtedly, a short-lived, nonserious injury can arise out of or be caused by a motor-vehicle accident. Whether the extent of Smith’s injuries justifies her alleged needs and prescribed services and care is a separate question. Furthermore, Dr. Bleiberg’s affidavit clearly provided evidence that Smith suffered an injury arising out of the accident. His credibility is also for the jury to assess. Id.
The city’s cursory 1½ - page argument on appeal does not sway us. The city argues that Smith’s ‘medical history shows that she had the same medical conditions before the accident that she complains of now.’ This argument fails to appreciate that when a person has suffered multiple back injuries they are not all the same simply because the back is generally involved in each injury. When the report of the 2015 MRI of the cervical spine is compared to the report of the November 8, 2017 MRI of the cervical spine, the latter references a diffuse disc bulge at C6-7 not mentioned in the former and the latter also refers to disc bulges at the C4-5 and C5-6 levels that, while mentioned in both MRI reports, are compressing the thecal sac, which compression is not identified in the 2015 MRI report. The November 8, 2017 MRI report of the cervical spine also indicated that there was a ‘sprain to the right transverse and alar ligament,’ which was not noted in the 2015 MRI. When these MRIs are considered in conjunction with Dr. Bleiberg’s affidavit, there is evidence contradicting the city’s contention that ‘the same medical conditions’ are at issue.12 The city itself does not pose an argument challenging Dr. Bleiberg’s affidavit but instead references and adopts the Baums’ appellate argument regarding Dr. Bleiberg, which we reject for the reasons stated below. In sum, we hold that the trial court erred by summarily dismissing Smith’s claim against the city for PIP benefits."
The Court of Appeals further held that the trial court erred in dismissing Smith’s third-party action against the Baums, because Smith presented sufficient evidence to create a question of fact as to whether the crash caused her to suffer a serious impairment of body function. Central to the Court’s holding were the conflicting conclusions by the various radiologists and neuroradiologists who reviewed Smith’s November 2017 and January 2018 MRIs, an August 2017 bone scan which “spoke of the possibility of a ‘posttraumatic etiology,’ ” and Dr. Bleiberg’s affidavit, which the Court deemed to have been based on sufficient facts and data and personal knowledge. The Court rejected the Baum’s argument that Dr. Bleiberg was not familiar with all of the various medical tests performed on Smith after the crash and that he did not review enough of Smith’s records, because any such shortcomings in Dr. Bleiberg’s analysis went to the weight of the evidence, not its admissibility. In other words, the veracity of Dr. Bleiberg’s opinions was a matter for the jury to determine.
"In this case, Dr. Bleiberg’s affidavit reflects that he physically examined Smith in office visits from August 2017 to April 2018, which revealed involuntary muscle spasms in the paravertebral muscles and posterior thoracic and lumbar muscles, along with a loss of Smith’s normal lordotic curve with rotoscoliosis. Dr. Bleiberg also relied on the November 2017 and January 2018 MRIs. We note that the June 2017 MRI was only of the lumbar spine, while the later MRIs were of the lumbar, cervical, and thoracic spine. We further point out that the interpretations or impressions of the November 2017 MRIs and the January 2018 MRI varied as between the radiologist who reviewed the MRIs in the normal course and the two neuroradiologists upon whom defendants relied. The neuroradiologists painted a rosy picture that eliminated the accident as causing any abnormalities, while the radiologist found multiple ‘disc bulge[s] compressing the thecal sac,’ and a ‘sprain to the right transverse and alar ligament,’ which were not noted by the neuroradiologists. Additionally, the August 2017 bone scan spoke of the possibility of a ‘posttraumatic etiology.’
The ‘impairments’ in this case are pain and lack of mobility, and the substance of Dr. Bleiberg’s affidavit constituted evidence that the impairments were objectively manifested, as revealed by physical examination of Smith and review of the MRIs, and that the accident was the cause of the impairments. Dr. Bleiberg’s opinions were based on sufficient facts and data and personal knowledge.
The Baums complain that there is no indication that Dr. Bleiberg was familiar with or reviewed all of the various medical tests performed on Smith and other records regarding her care and treatment, all of which are referred to in this opinion. These asserted shortcomings in Dr. Bleiberg’s opinions go to the weight of the evidence and not its admissibility. See Bouverette v Westinghouse Electric Corp, 245 Mich App 391, 401; 628 NW2d 86 (2001) (noting that ‘an opposing party’s disagreement with an expert’s opinion or interpretation of facts . . . are matters of the weight to be accorded to the testimony, not its admissibility’). The alleged shortcomings also pertain to Dr. Bleiberg’s credibility, which we cannot consider for purposes of summary disposition. Pioneer State, 301 Mich App at 377.
The Baums contend that there was no evidence that ‘Dr. Bleiberg had any of the records, including the lumbar, cervical and thoracic spine MRI findings[.]’ Dr. Bleiberg averred that he obtained and personally reviewed the MRIs of the lumbar, cervical, and thoracic spine performed in November 2017 and January 2018. Viewing the evidence in a light most favorable to Smith, we must accept his averments as true for purposes of the (C)(10) motion. Pioneer State, 301 Mich App at 377. The Baums appear to also maintain that Dr. Bleiberg’s affidavit is problematic because he did not first see Smith until about four months after the accident. Again, this argument goes to the weight of the evidence and credibility. Id.
Finally, the Baums call into question Dr. Bleiberg’s affidavit because his interpretation of the MRIs is inconsistent with the interpretation of the two neuroradiologists, Dr. Zydeck and Dr. Khalid, whose expertise at reading MRIs far surpasses Dr. Bleiberg’s abilities. Once again, this is a matter of weight and credibility, which cannot be entertained in the context of summary disposition. Id. In sum, viewing the evidence in a light most favorable to Smith, we hold that the trial court erred in granting summary disposition in favor of the Baums."
