Michigan Court of Appeals; Docket #357097; Unpublished
Judges Borrello, Shapiro, and Hood; Per Curiam
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)**]
Causation Issues [§3135]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals vacated the trial court’s summary disposition order dismissing Plaintiff Shelisa Harris's auto negligence against Defendant Edwin Edward Pawlitz, and remanded to the trial court for further proceedings consistent with its opinion. The Court of Appeals held that a question of fact existed as to whether Harris’s injuries satisfied the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010)—specifically, whether Harris suffered an objectively manifested impairment as a result of the subject motor vehicle collision, which affected her general ability to lead her normal life.
Shelisa Harris was driving her vehicle when Edwin Pawlitz mistimed a left turn from an oncoming traffic lane and crashed into her vehicle. Harris declined medical treatment at the scene, but began experiencing a “ ‘hollowness’ ” sensation in her head later that night. The next day, Harris presented to the emergency department, where she complained of a headache and midline thoracic pain and indicated to her doctors that she had a history of “ ‘chronic migraines and several concussion.’ ” A review of Harris’s systems was “ ‘[p]ositive for photophobia and visual disturbance,’ ” an x-ray of Harris’s thoracic spine revealed no “ ‘compression deformity [or] significant degenerative changes,’ ” and a CT of Harris’s head showed no “ ‘acute intracranial abnormality.’ ” Ultimately, she was discharged with a diagnosis of a concussion.
Harris’s testified that her concussion symptoms stopped after approximately one month and that her only symptoms during that period were nose bleeds. However, she continued to receive treatment for neck and back pain, and approximately two months after the crash, an MRI of her cervical spine revealed a disc bulge at C3-4, a herniated disc at C5-6, and straightening of the cervical lordotic curve perhaps attributable to cervical muscular spasm. Approximately five months after the crash, Harris underwent an MRI of her thoracic spine, which revealed central disc protrusions. Harris proceeded to receive chiropractic treatment on her neck and back and claimed that her injuries had a marked effect on her general ability to lead her normal life. Specifically, Harris testified that she could no longer perform work around the house like she could prior to the crash and that she needed even more help than usual performing household chores from her daughter.
Approximately 10 months after the crash, Harris underwent an insurance medical examinations, performed by orthopedic surgeon Jeffrey Devitt, Jr, MD. Dr. Devitt observed the protrusions and herniations in Harris’s thoracic and cervical spine MRIs, and noted that Harris “ ‘was having neck and thoracic pain somewhat acutely.’ ” He recommended that there be an independent radiology review of all Harris’s neck and back imaging after the crash to resolve any apparent contradictions, and he opined that the most likely diagnosis for Harris’s neck pain was “ ‘cervical sprain/strain.’ ” Two months later, Harris filed a third-party auto negligence action against Pawlitz with respect to the subject collision, and Pawlitz moved for summary disposition, arguing that Harris 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, Pawlitz argued that Harris’s injuries were entirely pre-existing or degenerative and that, given the fact that Harris admitted to having no social life and receiving help from her daughter with household chores prior to the crash, her injuries had no effect on her general ability to lead her normal life. The trial court agreed and granted Pawlitz’s motion.
The Court of Appeals reversed the trial court’s summary disposition order, holding that the trial court improperly weighed the evidence in favor of Pawlitz. As for the first prong of the McCormick test for serious impairment of body function, the Court held that the cervical and thoracic spine MRIs revealed objectively manifested impairments, e.g., disc protrusions and herniations.
“An ‘objectively manifested’ impairment is ‘an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function.’ McCormick, 487 Mich at 196. As discussed above, there was evidence that certain medical treatment providers found plaintiff to have bulging, herniated, and protruding discs in her neck and upper back (where she reported pain) after the accident. There was also evidence that plaintiff showed signs of degenerative conditions in her cervical spine and that she had been treated for lower back pain in 2013 and neck stiffness in 2016. A subsequent medical record from 2016 when plaintiff was treated for a headache indicates that she was negative for back and neck pain at that time.
Accordingly, there was evidence from which a reasonable trier of fact could conclude that plaintiff suffered an objectively manifested impairment that was observable or perceivable by someone other than plaintiff in the cervical and thoracic spine MRIs. Id. Yet, the trial court disregarded this evidence and chose instead to credit only the evidence indicating that plaintiff had degenerative conditions. There was conflicting evidence about the nature of plaintiff’s neck and upper back impairments, which is clearly a material fact in this case. To be “material,” the disputed fact need not be ‘outcome determinative’ but it ‘should be significant or essential to the issue or matter at hand.’ McCormick, 487 Mich at 194 (quotation marks and citation omitted). By resolving this material factual dispute on summary disposition through resort to weighing the evidence and making findings of fact, the trial court erred. Patrick, 322 Mich App at 605.”
The Court then turned to the issue of causation, holding that Harris presented sufficient inferential evidence to create a question of fact as to whether her injuries were caused by the subject collision. Specifically, the Court noted that Harris had no degenerative conditions in her thoracic spine, that there was evidence Harris’s thoracic spine pain started after the collision, and that there was evidence Harris’s neck and back injuries were “acute” post-crash.
“Here, there was evidence showing that plaintiff had bulged, herniated, and protruding discs after the accident, along with the evidence that plaintiff had not been experiencing back or neck pain recently. Additionally, there was evidence that plaintiff’s thoracic spine pain started the day after the accident, that she had no degenerative conditions in her thoracic spine, and that her neck and thoracic spine issues were acute following the accident. Devitt noted the evidence of both degenerative conditions and bulged, herniated, and protruding discs, and Devitt opined that further radiology review was recommended to resolve the question of the extent to which plaintiff’s conditions were potentially attributable to degenerative or accident-related causes.
A trier of fact could reasonably infer from the above evidence that plaintiff suffered either new back and neck impairments or an aggravation of preexisting conditions as a result of the accident. . . .”
Lastly, the Court turned to the third prong of the McCormick test, holding that Harris presented sufficient evidence to create a question of fact as to whether the crash affected her general ability to lead her normal life. Specifically, the Court noted that, although Harris received help with household chores from her daughter before the crash, she required more assistance after the crash. Moreover, the Court noted that Harris presented evidence she could not bend, squat, sit for too long, or perform many household chores to the degree that she could prior to the crash.
“Regarding the third McCormick prong, the trial court concluded that plaintiff could not satisfy this prong because her ‘restrictions are self-imposed and she has failed to show that her general ability to lead her normal life has been affected for the reasons argued by Pawlitz . . . .’ Although the trial court discussed plaintiff’s evidence that she could not bend, squat, sit too long, or perform all of the work around the house that she previously did, as well as the evidence that plaintiff required more help from her daughter with housework than she had needed before the accident, the trial court nonetheless credited Pawlitz’s assertion that the social and work aspects of plaintiff’s life had not changed. The trial court focused on evidence that plaintiff’s daughter had also helped plaintiff with housework before the accident, while ignoring evidence that the degree of help provided by plaintiff’s daughter had increased after the accident. Hence, the trial court’s decision on the third McCormick prong was also based on improper weighing of the credibility and strength of conflicting evidence contrary to the proper legal standards to be applied in deciding a motion for summary disposition. Patrick, 322 Mich App at 605.”
