Michigan Court of Appeals; Docket No. 189692; Unpublished
Judges Hoekstra, Murphy, and Smolenski; 2-1 (with Judge Murphy, Concurring in Part and Dissenting); Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (DiFranco Era – 1987-1995) [§3135(1)]
Determining Serious Impairment of Body Function as a Matter of Law (DiFranco Era – 1987-1995) [§3135(1)]
Causation Issues [§3135]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unpublished per curiam Opinion, Judge Murphy, concurring in part and dissenting in part, the Court of Appeals held that plaintiff had presented sufficient evidence to create a question of fact precluding summary disposition on the threshold issue under §3135(1) concerning aggravation of pre-existing injuries relating to her back, neck, shoulder, arm and hand. With regard to plaintiff’s claim of aggravation of pre¬existing carpal tunnel syndrome, the majority affirmed summary disposition because plaintiff failed to present expert testimony on this issue.
Plaintiff was involved in two successive accidents, one in October 1993, and the other in January 1994. In the first accident, plaintiff sustained injuries to her back, neck, right shoulder, right arm and right hand resulting in headaches, pain in her back, neck, arm and hand, traumatic carpal tunnel syndrome and shoulder impingement. This first case was settled. Subsequently, following her second accident in January 1994, plaintiff claimed additional injuries to her back, neck, right shoulder and right wrist, as well as traumatic bursitis and carpal tunnel syndrome. Plaintiff’s theory was that the second collision caused an aggravation of her pre-existing conditions.
At trial, summary disposition was granted by the court on the basis that plaintiff had not substantiated the aggravation of her pre-existing condition and its causation by the second collision with expert medical testimony.
In reversing the trial court in part and affirming in part, the Court of Appeals held that in DiFranco v Pickard, All Mich 32 (1986), the Supreme Court held that the serious impairment of body function threshold requires the plaintiff to prove that his non-economic losses arose out of a medically identifiable injury which seriously impaired a body function. Viewing the evidence in a light most favorable to the plaintiff, the Court of Appeals held that a question of fact was created concerning whether following the second collision plaintiff suffered non-economic loss that met the threshold, specifically an aggravation of the pain she had previously been experiencing in her back, neck, shoulder and wrist. Further, the court held that expert medical testimony presented by plaintiff did create a question of fact concerning whether there was a physical basis for plaintiff's complaints of aggravated pain and suffering in her back, neck and shoulder.
Finally, on the issue of cause in fact, the Court of Appeals noted that the physical basis for plaintiff’s subjective complaints of increased pain and suffering in her back, neck and shoulder is muscle strain or dysfunction. The court stated that it did not "believe that the issue of whether an automobile collision can in fact cause the aggravation of muscle strain or dysfunction necessarily involves medical questions beyond the scope of lay knowledge." However, the court noted that it did not need to decide this, because there was sufficient medical evidence from plaintiff’s physicians supporting her claim that the trauma of the second collision was an aggravating event.
The Court of Appeals further held that the fact that the plaintiffs physician testified that the second collision "could" aggravate plaintiffs shoulder and neck problems was sufficient, even though he did not affirmatively state that it "did" aggravate those problems. The fact that plaintiffs physician testified in terms of "could" rather than "did" goes only to the weight to be accorded to the doctor's testimony.
With regard to plaintiffs claim that the second collision caused an aggravation of her pre-existing carpal tunnel syndrome, the court held that this involved medical questions beyond the scope of lay knowledge, and because plaintiff failed to present expert testimony to support her claim of aggravation of her carpal tunnel syndrome, summary disposition was affirmed.
Judge Murphy in his partial concurrence and dissent felt that there was a question of fact concerning all of plaintiffs injury claims, and therefore, would have reversed the trial court's grant of directed verdict in favor of defendant as it relates to all claims.
