Michigan Court of Appeals; Docket #355730; Unpublished
Judges Cavanagh, Shapiro, and Gadola; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Concurrence
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
Causation Issues [§3135]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision (Shapiro, concurring), the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Galina Garvish’s third-party action against Defendant Don Andre Brown. The Court of Appeals held that Garvish failed to present sufficient evidence to create a question of fact as to whether she sustained a serious impairment of body function under McCormick v Carrier, 487 Mich 180 (2010). Specifically, the Court of Appeals held that Garvish failed to satisfy the first prong of the McCormick test, and failed to establish that any impairments she did have were caused by the subject motor vehicle collision.
Galina Garvish allegedly sustained injuries on October 12, 2016, when her vehicle was rear-ended by a vehicle driven by Don Andre Brown. Garvish had also been involved in a motor vehicle collision on January 18, 2016, after which she complained of pain in her back, neck, left shoulder, and right knee. Garvish underwent considerable testing after the January collision but before the October collision, and the opinions of the numerous doctors who treated or examined her varied. Garvish’s family doctor, Dr. Jeffry Soffa, treated Garvish after the January collision and diagnosed her with a “sprain/strain injury to her cervical, thoracic, and lumbar spine.” Garvish’s neurosurgeon, Dr. Clifford Houseman, reviewed an MRI of Garvish’s lumbar spine taken on March 18, 2016 and diagnosed Garvish with a “traumatic rupture of lumbar intervertebral disc, traumatic spondylopathy of lumbosacral region, and lumbosacral disc herniation.” Garvish then underwent an MRI of her cervical spine in May of 2016 which showed a “ ‘small broad-based right central disc protrusion at C5-C6 without significant canal or foraminal stenosis.’ ” After that MRI, Garvish submitted to an insurance medical examination with an orthopedic surgeon, Dr. Ryan Beekman, who opined that Garvish had not suffered any injury at all in the January collision. Then, in September of 2016, just before the subject collision, Garvish returned to Dr. Houseman, who deemed Garvish totally disabled as a result of her injuries.
Five days after the subject collision, Garvish returned to Dr. Soffa, who diagnosed Garvish with an aggravation of the “preexisting sprain/strain injury to her cervical, thoracic, and lumbosacral spine” that she sustained in the January collision. On December 20, 2016, Garvish returned to Dr. Houseman, who referred her for MRIs of her lumbar spine and cervical spine. On January 16, 2017, Garvish underwent said MRIs, which a radiologist compared to the MRIs taken of the same regions on March 18, 2016 and May 27, 2016, concluding that there was “ ‘essentially no change from the most recent study,” even though the report from the latter cervical spine MRI was markedly different than the report from the former. The latter report read, in pertinent part: “ ‘Small central/right paracentral/right foraminal disc herniation with right foraminal encroachment at C5-C6 and broad-based disc bulging lateralizing to the left with mild left foraminal encroachment and mild central spinal canal stenosis at C6-C7. Disc bulging with foraminal encroachment at C3-C4 and C4-C5.’ ”
Garvish then underwent two additional IMEs, another by Dr. Beekman and one by a physiatrist, Dr. Joseph Femminineo. Dr. Beekman opined that, “ ‘at most [Garvish] sustained a soft tissue sprain/strain to the cervical and lumbar spine,’ ” and Dr. Femminineo opined that “ ‘there was [not] much structural difference between the study done both before and after the accident in October of 2016.’ ”
In Garvish’s subsequent third-party action against Brown, Brown moved for summary disposition, arguing that Garvish failed to present sufficient evidence to create a question of fact as to whether Garvish suffered a serious impairment of body function. The trial court agreed and granted Brown’s motion.
The Court of Appeals affirmed the trial court’s summary disposition order, noting, preliminarily, that “[b]ecause defendant Brown submitted documentary evidence [the two IMEs and the radiologist’s comparison of the May 2016 and January 2017 MRIs] supporting his claim that plaintiff did not suffer a threshold injury that was caused by the October accident, the burden then shifted to plaintiff to establish that a genuine dispute of fact existed in that regard.” The Court went on to hold that the evidence Garvish submitted was not sufficient to create a question of fact as to whether she suffered a threshold injury. Specifically, the Court held that it could not consider the differences between the May 2016 and January 2017 MRI reports because courts of law “ ‘ clearly lack the specified training and ability to compare MRI reports,” and must, therefore, rely on the comparisons of actual experts—e.g. the radiologist who compared the two studies and determined that there was essentially no change. The Court next disregarded an EMG from April 2017, which showed nerve damage in Garvish’s neck and back, because “there was no testimony that any such nerve damage arose from the October accident rather than the previous January or another motor vehicle accident.” Lastly, the Court disregarded Dr. Soffa’s diagnosis of an aggravation of Garvish’s pre-existing cervical, thoracic, and lumbosacral sprain/strain, because those injuries did not show up in objective testing. In summation, the Court concluded that "[Garvish] failed to present any medical evidence connecting her claimed impairments to the October accident, which is particularly necessary in this case considering [Garvish’s] extensive medical history and involvement in other motor vehicle accidents."
“Because defendant Brown submitted documentary evidence supporting his claim that plaintiff did not suffer a threshold injury that was caused by the October accident, the burden then shifted to plaintiff to establish that a genuine dispute of fact existed in that regard. See Quinto, 451 Mich at 362-363. In opposition to Brown’s motion for summary disposition, plaintiff argued that she presented sufficient evidence of both new injuries and aggravation of preexisting injuries. With respect to whether plaintiff suffered new injuries, plaintiff directed the trial court to the May 27, 2016 and the January 16, 2017 MRI reports of her cervical spine. But, again, the radiologist compared those reports and concluded there was ‘essentially no change.’ Plaintiff also opined that an April 2017 EMG was evidence of a new condition because it showed nerve damage and pain in her back and neck. But there was no testimony that any such nerve damage arose from the October accident rather than the previous January or another motor vehicle accident. With regard to whether she suffered a worsening of her preexisting conditions, plaintiff pointed to her medical records noting her various diagnoses and treatments. But her family medical physician, Dr. Soffa, persistently concluded that plaintiff sustained a sprain/strain injury to her cervical, thoracic, and lumbosacral spine—which existed before the October accident. Despite the MRIs and other diagnostic testing results, Dr. Soffa’s impression did not change. In other words, Dr. Soffa did not indicate at any time that the October accident caused any condition that showed up in diagnostic testing—perhaps because, as Dr. Beekman opined, plaintiff primarily had degenerative cervical and lumbar spine disease which was not caused by a motor vehicle accident. Moreover, plaintiff was issued a disability statement indicating that she was totally disabled by Dr. Houseman in September 2016, just before the October accident.
As noted, the existence of an objectively manifested impairment is generally proven through medical testimony. McCormick, 487 Mich at 197-198. That is, what impairments were caused—or preexisting conditions aggravated—by the October accident presents a medical question that is beyond the scope of lay knowledge. See, e.g., Howard v Feld, 100 Mich App 271, 273; 298 NW2d 722 (1980). In this case, defendant Brown claimed that plaintiff did not suffer a threshold injury caused by the October accident and presented medical evidence in support of his argument. Therefore, it was incumbent on plaintiff to refute that claim with medical evidence like an affidavit or deposition testimony that specifically attributes a definitive objectively manifested impairment to the October accident. While plaintiff relies on MRI reports, as the trial court noted, the court ‘clearly lacks the specified training and ability to compare MRI reports and must therefore rely on the expert opinion in the current record.’ The physicians who rendered any opinion of record regarding plaintiff’s MRI reports attributed plaintiff’s impairments to her degenerative conditions and not to the October accident. In short, plaintiff failed to present any medical evidence connecting her claimed impairments to the October accident, which is particularly necessary in this case considering plaintiff’s extensive medical history and involvement in other motor vehicle accidents. On the record before us, we agree with the trial court that plaintiff failed to establish that a genuine issue of material fact exists regarding whether she suffered a serious impairment of body function that was caused by the October accident. Accordingly, the trial court did not err in granting defendant Brown’s motion for summary disposition on this basis. In light of this conclusion, we need not address plaintiff’s argument that the alleged injuries affected her ability to lead her normal life.”
