United States District Court, Eastern District of Michigan; Case No. 13-13845
Judge Cleland; Unpublished
Official Michigan Reporter Citation: Not Applicable; Opinion not Available 
STATUTORY INDEX:
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)]
TOPICAL INDEX:
Not Applicable
CASE SUMMARY:
In this federal Opinion, Judge Cleland denied summary disposition for defendant on the issue of whether the plaintiff suffered a serious impairment of body of function, because the plaintiff presented sufficient evidence to create a question of fact regarding whether the plaintiff’s injuries were objectively manifested, and regarding whether the plaintiff’s claimed injuries affected her general ability to lead her normal life.
Prior to the subject accident, plaintiff “had substantial medical problems.” O’Chel at *2. In particular, she was diagnosed with breast cancer and underwent a left modified radical mastectomy and chemotherapy. Shortly thereafter, she began experiencing pain in her right shoulder and complained of bone and joint aches, but otherwise appeared to be healing well. Two days following her accident, she sought medical treatment complaining of neck and lower back pain. Initial x-rays did not reveal any spinal injuries, and she otherwise did not show any signs of neurological deficit. Plaintiff continued experiencing pain and underwent physical therapy, where it was noted that plaintiff had “decreased cervical extension right side-bending and right rotation, decreased left side-bending in the lumbar spine, decreased motion in both shoulders, decreased rotator cuff strength, and decreased core strength with right side lower back pain.” Id. Plaintiff’s physical therapy resulted in minimal improvement, and she further underwent an examination by an orthopedist, who noted that plaintiff had “very limited motion with decreased flexion, extension, side bending, and rotation.” Id. (internal quotations removed). The plaintiff then was placed on work restrictions and underwent an MRI scan of her lumbar spine, which revealed a “broad-based disc bulge and small central annular tear at L3-L4, as well as a central protrusion . . . with a small central annular tear.” Id. (internal quotations removed). Approximately two weeks later, an additional MRI was taken of plaintiff’s neck, which revealed “a slight broad based disc bulge at C6-C7.” Id. The plaintiff continued to complain of pain, and it was noted during a subsequent follow-up appointment that she was experiencing “tenderness in the cervical and lumbar spine, and had limited mobility in both areas.” Id. at *2 - *3. Additional physical therapy “confirmed that O’Chel’s spinal mobility was quite limited.” Id. at *3.
The Court first held the foregoing evidence was sufficient evidence of an objectively manifested impairment despite plaintiff’s pre-existing medical conditions. In so holding, the Court found it pertinent that “MRI's revealed bulging discs, and annular tears in O'Chel's lumbar region, as well as a slight broad-based disc bulge in her neck. Further physical therapy has demonstrated that O'Chel continues to experience neck and back stiffness, and limited range of motion and pain throughout her spine. Although Kitchen doubts the sincerity of O'Chel's self-reported pain, there exists objective medical evidence that could support a finding that O'Chel's back is, in fact, injured.” Id.
Regarding the important bodily function element, the court merely stated that it “finds it to be an unremarkable assertion that the ability to move one's spine and neck is an ’important body function.’”
Finally, the Court held that, despite the plaintiff’s pre-accident medical condition, she produced sufficient evidence to create a question of fact on whether she satisfied the general ability element. In so holding, the Court reasoned that “O'Chel testified that she is unable to stand and experiences discomfort sitting for long periods of time, which has affected her work duties as she is no longer able to apply numbing agent to her patients . . . Further, she testified that she is no longer able to garden, walk her dogs, ride her bike, hike in the woods, or participate in any of the summer activities she previously enjoyed . . . Her medical records also reflect that she experiences trouble sleeping, and has difficulty with basic dressing and grooming due to her back and neck pain . . . Taken in the light most favorable to O'Chel, a reasonable jury could conclude that her general ability to lead her normal life has been affected by the accident.” Id. at *5.
