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Whitaker v Rigel, et al (COA – UNP 6/17/2021; RB # 4285)

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 Michigan Court of Appeals; Docket # 354842: Unpublished
Judges Gleicher, Cavanagh, and Letica; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Causation Issues [§3135]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Laurie Whitaker’s third-party action against Defendants Taylor Rose Rigel and Rodney Wayne Rigel. The Court of Appeals held that Whitaker failed to present sufficient evidence to create a genuine issue of material fact as to whether her back injuries were caused by the subject motor vehicle collision and not merely the result of her pre-existing, degenerative back injuries.

Whitaker was injured in a motor vehicle collision but did not seek immediate medical attention at the scene of the collision. She did go to the hospital later that day, and was ultimately diagnosed with “acute strain of the neck muscle” and “lumbar stenosis.” Approximately two years later, she filed the instant action against Taylor Rose Rigel, the at-fault driver, and Rodney Wayne Rigel, the owner of the vehicle the at-fault driver was operating at the time of the collision. The defendants obtained Whitaker’s prior medical records, which “revealed an extensive history of back, hip, leg, and knee issues, along with other medical conditions which prevented [Whitaker] from working (since 2014) and participating in recreational as well as sexual activities.” Whitaker then underwent an independent medical examination, and the examiner “opined that [Whitaker] had a history of chronic degenerative changes in her spine and there were ‘no documented objective neurological deficits to suggest any substantial aggravation of her preexisting disease process from the rear end accident.’ ” In light of Whitaker’s extensive pre-existing injuries and the results of the independent medical examination, the defendants moved for summary disposition, arguing that Whitaker could not establish that she suffered a distinct, objectively manifested impairment that affected her general ability to lead her normal life. Whitaker argued in response that she had presented sufficient evidence that she suffered serious impairments of body function as a result of the collision, including an aggravation of her pre-existing back problems. The trial court ultimately agreed with the defendants and granted their motion for summary disposition.

The Court of Appeals affirmed the trial court’s summary disposition order, noting that, although Whitaker’s post-collision imaging revealed back injuries, Whitaker did not prevent any evidence to indicate that these injuries were caused by the subject collision and not merely the result of her admitted pre-existing back injuries. This is in spite of the fact that Whitaker’s pre-collision imaging “ ‘did not indicate [Whitaker] suffered from a broad based disc bulge at L3-L4 or L5-S1 . . . in addition, [Whitaker’s] prior cervical MRI did not indicate she had a disc bulge or neuroforaminal narrowing at C5-C6 or C6-C7.’ ” The Court of Appeals held that this was perhaps explainable by the fact that Whitaker’s pre-collision medical records suggested that her back injuries were degenerative and would worsen over time, and that Whitaker failed to present evidence to suggest that this was not the case and that her injuries were instead a result of the collision.

Although the postaccident imaging studies indicated the existence of plaintiff’s disc conditions, these studies did not establish that the accident caused these conditions. Indeed, several of plaintiff’s preaccident medical records note a ‘degenerative’ condition of plaintiff’s back. This suggests that plaintiff’s back condition would worsen over time. In the absence of medical testimony attributing the worsening of plaintiff’s allegedly ‘new’ back conditions to the September 2017 accident, plaintiff fails to create a question of fact as to an ‘objectively manifested [injury that] is observable or perceivable from actual symptoms or conditions by someone other than the injured person.’ MCL 500.3135(5). This is particularly true in light of the conclusion reached by the physician who conducted an independent medical examination and opined that plaintiff’s ‘symptoms are to a reasonable degree of medical probability arising from the continued stress to the low back which is a function of her weight and degenerative osteoarthritic conditions of the spine (cervical, thoracic, lumbar spondylosis) which preexisted the automobile accident.’ Thus, the trial court did not err when it held that plaintiff failed to introduce evidence ‘establishing that there is a physical basis for her subjective complaints of pain and suffering.’ Because we conclude that the trial court did not err when it found that plaintiff failed to establish the first prong of the McCormick test, we need not consider plaintiff’s second argument that her alleged accident- related injuries affected her normal life, and we decline to do so. Accordingly, we affirm the decision of the trial court granting defendant’s motion for summary disposition.

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