Michigan Court of Appeals; Docket #353807; Unpublished
Judges Cameron, Borrello, and Redford; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
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)**]
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Darryl Lee Montepetit’s third-party action against Defendant Chaz Allen Hopkins. The Court of Appeals held that Montpetit presented sufficient evidence to create a question of fact as to whether he satisfied the first and third prongs of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010)—specifically whether his alleged aggravation of his pre-existing neck and back injuries for which he received Social Security Disability before the subject collision constituted an objectively manifested impairment which further affected his general ability to lead his normal life pursuant to the test set forth in McCormick.
Montpetit was injured in a motor vehicle crash caused by the negligence of Hopkins, whereby Montpetit claimed to have aggravated significant pre-existing neck and back injuries which he sustained in a 2010 motorcycle crash. As a result of the 2010 crash, Montpetit was placed on Social Security Disability and resulted in his having difficulty standing for long periods of time, bending, and lifting. Furthermore, at the time of the 2018 crash, Montpetit was still experiencing neck and back pain and taking prescription medication for those symptoms.
Montpetit claimed that the force of impact from Hopkins’s vehicle in the 2018 crash caused his whole body to twist to the right, and he complained at the scene of the collision of pain in his chest, head, neck, back, and hip. He declined emergency treatment, but went to the hospital the following day, where a CT scan was conducted of his cervical spine and x-rays were taken of his thoracic and lumbar spine, “reveal[ing] postsurgical changes and possible muscular spasm in the cervical spine, mild degenerative changes in the lower thoracic spine, and palpable muscle spasm and mild degenerative changes in the lumbar spine with similar appearance to [his] 2017 examination.” Notably, his records from this visit to the hospital contained a note from one of his providers which provided, “ ‘Patient’s pain appears to be acute exacerbations of his chronic pain secondary to MVA.’ ” Over the next month, Montpetit underwent physical therapy and reported experiencing pain that severely limited his ability to partake in activities and his sleep routine, and his treating physician, Dr. Paul LeClair, wrote a letter after treating Montpetit in which he stated that he was “ ‘treating [Montpetit] for aggravation of some of his pre-motor vehicle accident conditions, in addition to the herniated discs at C2-3, and L4 . . . [which] were cause by the above-referenced accident, and were not present prior to the accident.’ ” Additionally, Dr. LeClair noted the following: “ ‘[Montpetit’s] accident related treatment has included treatment and pain injections to the most affected areas, in addition to his left his which is also directly related to referenced accident.’ ”
Plaintiff filed the underlying action shortly thereafter, maintaining that he continued to experience residual pain from the 2018 crash which limited his ability to walk, bend, hike, fish, and perform household chores, some of which he was able to do in the interim between the 2010 crash and the 2018 crash. The trial court ultimately granted summary disposition in Hopkins’s favor, however, finding that, given Hopkins’s significant pre-existing injuries, he failed to present sufficient evidence to create a question of fact as to whether he suffered an objectively manifested impairment distinct from those he suffered in the 2010 crash, and that, given the fact that he was on Social Security Disability at the time of the 2018 crash, his injuries did not affect his general ability to lead his normal life.
The Court of Appeals then reversed the trial court’s summary disposition order, holding—with respect to the first prong of the McCormick test for serious impairment of body function—that Montpetit presented sufficient evidence in the form of his medical records and Dr. LeClair’s letter to create a question of fact as to whether he suffered an objectively manifest impairment. The Court noted that “a plaintiff’s recovery may be based on the aggravation of preexisting conditions,” and in this case, Montpetit presented sufficient evidence “that the aggravation of [his] conditions that constituted his impairment was observable in MRI images that showed disc extrusions and bulges that were separate and distinct from the changes attributable to his prior neck surgery that were also shown in the MRI images.”
In this case, at the time of the 2018 accident at issue, plaintiff suffered from preexisting neck and back pain as a result of a 2010 motorcycle accident and plaintiff was on social security disability as a result of his preexisting conditions. However, the record also contains evidence in the form of medical records for plaintiff, a letter from one of plaintiff’s treating physicians, and plaintiff’s own testimony that plaintiff’s preexisting conditions were further aggravated by the 2018 accident. The record of plaintiff’s hospital visit from the day after the accident attributed plaintiff’s neck and back pain to an exacerbation of his preexisting chronic conditions. There was evidence that plaintiff then pursued a course of physical therapy without success in alleviating his increased impairment before being subjected to MRI scans.
A plaintiff’s recovery may be based on the aggravation of preexisting conditions. See Wilkinson v Lee, 463 Mich 388, 395-396; 617 NW2d 305 (2000) (“Regardless of the preexisting condition, recovery is allowed if the trauma caused by the accident triggered symptoms from that condition.”). Furthermore, there was evidence that the aggravation of plaintiff’s conditions that constituted his impairment was observable in MRI images that showed disc extrusions and bulges that were separate and distinct from the changes attributable to his prior neck surgery that were also shown in the MRI images. A jury could reasonably conclude from such evidence that the impairment was observable or perceivable from actual symptoms or conditions by someone other than plaintiff. MCL 500.3135(5)(a); McCormick, 487 Mich at 196.
As for the third prong of the McCormick test—that Montpetit demonstrates that his injuries affected his general ability to lead his normal life—the Court of Appeals held that Montpetit presented sufficient evidence, in the form of testimony regarding the various recreational activities he could no longer perform or that he struggled to perform as a result of his injuries. In other words, the fact that he was on Social Security Disability at the time of the subject crash was not dispositive on the issue of whether the aggravation of his pre-existing injuries affected his general ability to lead his normal life in new and distinct ways.
While the evidence that plaintiff was already on social security disability at the time of the 2018 accident, could not work, and was on prescription pain medication for his symptoms may suggest that his conditions were not aggravated by the 2018 accident, we do not weigh the strength of the evidence or resolve evidentiary conflicts on summary disposition. Patrick, 322 Mich App at 605-606. It is apparent from the trial court’s ruling that its decision was based on its view of the relative strength and credibility of the parties’ evidence, and the trial court erred by justifying its summary disposition ruling with impermissible findings of fact. Id. Viewing the evidence in the light most favorable to plaintiff as the nonmoving party, a genuine question of material fact exists whether plaintiff suffered an objectively manifested impairment. MCL 500.3135(5)(a); McCormick, 487 Mich at 195-196.
In this case, the trial court seemingly concluded that because plaintiff had preexisting disabilities, his normal manner of living could not be further affected by the 2018 accident. However, the trial court ignored the record evidence that plaintiff could not go for as long of hikes or fish as frequently as he had between 2010 and 2018 because it was difficult to get in and out of the boat. Viewing the evidence in the light most favorable to plaintiff, there is a genuine question of material fact regarding whether plaintiff’s impairment affected his general ability to lead his normal life. MCL 500.3135(5)(c); McCormick, 487 Mich at 195. Notably, ‘there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.’ Id. at 203. The trial court therefore erred with respect to the third prong as well.