Michigan Court of Appeals; Docket No. 317701; Unpublished
Judges Riordan, Beckering, and Boonstra; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
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In this unanimous unpublished per curiam Opinion, the Court of Appeals held that the plaintiff presented sufficient evidence to create a question of fact regarding whether the plaintiff’s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.
The plaintiff in this case was rear-ended while riding as a passenger in a vehicle. She was treated at Beaumont Hospital shortly after the accident, where she was diagnosed with “abdominal wall contusions, cervicalgia, and unspecified injuries.” Plaintiff’s x-rays at the time were described as “normal.” Approximately three days after the accident, Plaintiff sought chiropractic treatment from a Dr. Mufarreh. She presented with “complaints including upper back pain, lower back pain, and pain in her left shoulder and arm.” An examination “revealed decreased cervical and lumbar range of motion and he diagnosed plaintiff with a muscle spasm.” Dr. Mufarreh disabled Plaintiff for approximately 20 months from housework and from caring for her personal needs such as dressing or any activity that involved lifting or twisting. Approximately six months after the accident, plaintiff began treating with several orthopedic surgeons: Dr. Mendelson, Dr. Kornblum, and Dr. Oddo. An MRI of plaintiff’s lumbar-sacral spine revealed “[d]isc bulges at the L3-4, L4-5 and L5-S1 levels, impinging upon the thecal sac and causing mild-to-moderate bilateral neurofoaminal narrowing.” An MRI of the thoracic spine revealed “a disc bulge at the ‘T10-11 level, indenting upon the ventral thecal sac.’” Plaintiff was further diagnosed with “[l]eft shoulder rotator cuff tendonitis”; “[c]ervical and lumbar pain”; and “[c]hronic pain due to trauma, sacroilitis, low back pain, and neck pain.” She was prescribed continued physical therapy, cortisone injections, and a TENS unit. After continued treatment, plaintiff’s condition improved, and her doctors observed that she had “full range of motion of the neck” and “full range of motion of the shoulders with some pain in the left shoulder.” Her doctors further reported “negative impingement,” and noted that “plaintiff did not display ‘weakness’ or ‘atrophy.’” However, plaintiff continued to report back, neck, and shoulder pain. The Court of Appeals held that the plaintiff presented sufficient evidence to create a genuine issue of material fact regarding “whether she suffered an objectively manifested impairment and a physical basis for her complaints of pain." In so holding, the court reasoned, “On the one hand, defendants note, as did the trial court, that plaintiff’s x-ray results at Beaumont Hospital immediately after the accident were ‘normal.’ Nevertheless . . . The medical records noted above, particularly reports from Dr. Mendelson and Dr. Oddo, who reported that plaintiff was unable to move her left arm past a certain angle because of pain, create a genuine issue of material fact regarding an objectively manifested impairment that was observable by others. Dr. Mufarreh’s chiropractic examination report also showed that plaintiff had a decreased range of motion in her neck and back on or about March 30, 2010, four days after the accident. In addition, Dr. Mufarreh provided disability slips for plaintiff after determining that she was unable to perform certain activities.”
The Court of Appeals further held that Plaintiff presented sufficient evidence to support a finding that she satisfied the general ability element and reversed the trial court’s grant of summary disposition for defendant. In so holding, the court reasoned, “[i]n finding that defendants were entitled to summary disposition, the trial court noted that Dr. Mufarreh’s March 30, 2010 examination report indicated that plaintiff ‘reads’ for recreation and that plaintiff’s lifestyle was ‘unremarkable.’ In doing so, the trial court appears to have ignored plaintiff’s deposition testimony, which indicated that, before the accident, plaintiff played tennis with her daughter about once per week, ran on a track near her house about twice per week, and practiced yoga and Pilates twice per week, and that she was unable to engage in these activities after the accident. In addition, there was record evidence that plaintiff did not work for approximately three months after the accident because of the pain she was experiencing." The court further noted that the trial court improperly focused on improvements in plaintiff's medical condition, stating that “the trial court’s written opinion also emphasized that, ‘more than a year after the accident, plaintiff’s orthopedic spine surgeon noted that her cervical and lumbar spine were normal with no impingement, weakness, or atrophy.’ However, plaintiff presented evidence, including disability certificates and her own deposition testimony, of her inability to work for a period of time, as well as an inability to exercise or perform certain household chores.” The court then reiterated that “MCL 500.3135 ‘does not create an express temporal requirement as to how long an impairment must last in order to have an effect on ‘the person’s general ability to live his or her normal life.’” (Quoting McCormick, 487 Mich at 203.) The court therefore concluded that “the fact that a surgeon noted that plaintiff’s cervical and lumbar spine were normal more than a year after the accident is not dispositive as there is no requirement as to how long an important body function must be impaired.”
