Michigan Court of Appeals; Docket No. 295594; Unpublished
Judges Markey, Zahra, and Donofrio; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable, Link to Opinion
On July 25, 2011, the Michigan Supreme Court DENIED application for leave to appeal; Link to Order
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(7)]
Serious Impairment of Body Function Definition (Kreiner Era: 1996-2010) [§3135(7)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
General Ability / Normal Life Element of Serious Impairment (Kreiner Era: 1996-2010) [§3135(7)]
TOPICAL INDEXING:
Not Applicable
In this unpublished unanimous per curiam Opinion regarding plaintiff’s threshold claims for non-economic loss, the Court of Appeals reversed the trial court’s grant of summary disposition in defendant’s favor on the issue of serious impairment and remanded for further proceedings, because the trial court applied the Kreiner v Fischer standard in determining plaintiff’s threshold claims, which the Supreme Court overruled in McCormick v Carrier and “established a new standard for evaluating third-party claims under MCL 500.3135(1) and (7).”
The Plaintiff in this case sustained injuries in two separate accidents. The first accident occurred in 2004 and allegedly resulted in injuries to plaintiff’s back. Following the 2004 accident, plaintiff treated with a pediatric orthopedic physician, who administered a follow-up examination in November of 2006 wherein he reported that “Plaintiff still has some pain with hypertension, especially with the left leg elevated,” further “assessing Plaintiff with lower back pain” and sending her to eight weeks of “physical therapy for truncal stability for the back pain. . . .” Shortly thereafter, plaintiff was then involved in the second accident in January of 2007. Following the second accident, she was not hospitalized, and the police report did not indicate that she was injured or otherwise complained of pain at the scene. However, the Court noted that plaintiff’s doctors reported that plaintiff’s pain had worsened following the second accident. In this regard the Court explained that:
“On January 15, 2007, plaintiff attended a physical therapy session and there is no evidence that she mentioned any aggravation of her condition. However, on January 22, 2007, plaintiff saw Dr. Reinhardt who diagnosed plaintiff with “low back pain” and a “[n]ew onset of back pain secondary to motor vehicle accident.” Dr. Reinhardt reported that “she does have what feels like spasmodic changes in the paraspinal muscles on her left side.” In addition to continued physical therapy and “heat packs” plaintiff was prescribed ibuprofen. Dr. Reinhardt sent plaintiff for an MRI examination which revealed a herniated disk. In a letter to plaintiff’s automobile insurance company, Dr. Reinhardt wrote that, “I do feel that the accident in January 2007 exacerbated her pain, because it seemed as if her back pain was getting better with therapy, and then she had a new injury which incited this new pain which caused her to require additional treatment by another physician.” Plaintiff also saw Kevin Fitzgerald, M.D., of Michigan Pain Consultants, who opined that “in January [2007 plaintiff’s] pain got progressively worse.” Last, Lisa B. Green, M.D., examined plaintiff on February 8, 2008, and indicated that plaintiff “may . . . have had a disk herniation at [the time of the accident]. There is no way of proving that there was a disk herniation at that time, but I think this is likely the case given this significant worsening of pain.”
Based on the foregoing, plaintiff brought suit against defendants alleging that their negligence caused her “severe low back pain, and L5-S1 disc bulge; requiring epidural injections and physical therapy.” Defendants later moved for summary disposition on plaintiff’s threshold claims, conceding “for purposes of their motion . . . that Plaintiff’s injuries were objectively manifested and affected an important body function,” and argued only that “Plaintiff’s new impairment did not affect her general ability to lead her normal life.” Applying the Kreiner standard, the trial court granted defendant’s motion, and this appeal then followed.
On appeal, the Court of Appeals noted that given defendant’s concessions, the only relevant issue here was whether “Plaintiff’s alleged back injuries can establish that she suffered a serious impairment of body function.” The Court then recognized that since the trial court’s ruling, the Supreme Court overruled the Kreiner standard, which the trial court applied in making its determination regarding plaintiff’s threshold claims, and “established a new standard for evaluating third-party claims under MCL 500.3135(1) and (7)” in deciding McCormick. Therefore, the Court was “compelled to reverse the trial court’s decision in this regard and remand for further proceedings consistent with McCormick’s directives.”
