Michigan Court of Appeals; Docket #355910; Unpublished
Judges Borrello, Shapiro, and Hood; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order in favor of Plaintiff Bashir Mehtar in his first-party action against Defendant Fremont Insurance Company (“Fremont”), and remanded for further proceedings consistent with its opinion. The Court of Appeals held, first, that a question of fact existed as to the “existence and extent” of the injuries Mehtar allegedly suffered as a result of the subject car crash and, second, that a question of fact existed as to whether Mehtar’s injuries arose out of the subject car crash for purposes of MCL 500.3105(1).
Bashir Mehtar was injured in a car crash and subsequently sought treatment for pain in his right shoulder, neck, and back. An MRI of Mehtar’s cervical spine, taken approximately 10 months after the crash, revealed ‘[l]eft paracentral disc protrusion type herniation at the C6-7 level, causing mild narrowing of the left lateral recess,’ and an electromyography test performed approximately three weeks later revealed ‘electrophysiological evidence of a left C6 radiculopathy.’ Mehtar’s treating physician diagnosed Mehtar with ‘cervicalgia/disc herniation,’ and noted in a separate visit that Mehtar’s was presenting ‘for a follow up for neck and shoulder pain secondary to auto accident injuries.’ At some point after the crash, Mehtar also underwent an MRI of his right shoulder—revealing a rotator cuff tear which Mehtar had surgically repaired—and received treatment for thoracic and lumbar spine pain.
Mehtar applied for no-fault PIP benefits related to his injuries with Fremont, but after initially paying Mehtar’s medical expenses, Fremont discontinued Mehtar’s benefits based on surveillance footage of Mehtar allegedly performing activities he claimed he could not perform because of his injuries, as well as an insurance medical examination performed by Dr. Donald Garver. Dr. Garver concluded that Mehtar had no ongoing injuries in his neck and that there was no evidence that Mehtar’s right rotator cuff tear was causally connected to the subject crash. Mehtar ultimately filed suit against Fremont and, at the close of discovery, moved for partial summary disposition, arguing that Fremont failed to present any evidence to refute that Mehtar suffered bodily injuries that arose out of the subject crash for purposes of PIP benefit entitlement under MCL 500.3105(1). The trial court agreed and granted Mehtar’s motion.
The Court of Appeals reversed the trial court’s summary disposition order, holding, first, that a question of fact existed as to whether Mehtar’s neck, back, and shoulder injuries were causally connected to the crash. Specifically, the Court held that Mehtar’s medical records—in particular, that which described his neck and shoulder pain as being secondary to the injuries he sustained in the crash—should have been construed “as at least presenting some ambiguity regarding the source of Mehtar’s neck injury” since “the evidence needed to be considered in a light most favorable to Fremont.” Moreover, the Court held that “[a]lthough Fremont did not put forward an alternative theory of causation or identify records in Mehtar’s pre-accident medical records that would suggest other causes for the injuries, its IME inject sufficient uncertainty regarding causation for a genuine issue of material fact to remain.”
“Assuming Mehtar’s records show such injuries, the conflict between Mehtar’s records, the absence of medical records showing the existence of the injuries prior to the accident, and the opinions within the IME create an issue of material fact related to causation. Insurers need only pay PIP benefits for injuries “arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” MCL 500.3105(1) (emphasis added). The November 8, 2018 medical record referenced the accident as a potential cause of Mehtar’s pain, stating: “Patient presents for a follow up for neck and shoulder pain secondary to auto accident injuries.” This record appears to satisfy the threshold showing to establish a causal connection between the accident and Mehtar’s alleged neck injury. Because the evidence needed to be considered in a light most favorable to Fremont, El-Khalil, 504 Mich at 160, the trial court should have construed this evidence as at least presenting some ambiguity regarding the source of Mehtar’s neck injury. Although Fremont did not put forward an alternative theory of causation or identify records in Mehtar’s pre-accident medical records that would suggest other causes for the injuries, its IME injects sufficient uncertainty regarding causation for a genuine issue of material fact to remain.”
The Court of Appeals held, second, that a question of fact remained even as to the “existence and extent” of Mehtar’s neck, back and shoulder injuries—notwithstanding the aforementioned cervical spine MRI, electromyography test, right shoulder MRI, and surgical repair of Mehtar’s right rotator cuff—based on Dr. Garver’s IME.
“With respect to the alleged injuries to Mehtar’s neck, Dr. Garver’s IME specifically examined Mehtar’s neck, stating: ‘[Mehtar] has full range of motion of his neck with absolutely no limitation. There is a negative Spurling maneuver. He has no pain whatsoever from his neck, but he has point tenderness in the mid scapula . . . and in the superior border of the scapula.’ In the ‘impressions and conclusions’ section of the IME, Dr. Garver wrote:
[A]t this point I have nothing else to go on other than the fact that I do not find evidence to suggest that the occurrence of the rotator cuff tear of the right shoulder has any connection whatsoever and, in my opinion, has nothing to do with the automobile accident of 11/27/17. I do not believe that it caused any exacerbation of symptoms nor do I believe, at this point, that there is any reason for him to have treatment nor restrictions at work.
The impressions and conclusion section of the IME also stated that Mehtar had ‘full range of motion of his neck with no evidence of radiation of pain into the arms and he had a negative cervical compression test,’ which indicated ‘that there was nothing to suggest a radiculopathy.’ Although Dr. Garver’s conclusions that there were no injuries may be questionable in light of the fact that Mehtar later had rotator cuff surgery and an MRI showing such injury, the IME did create a question of fact regarding the existence and extent of Mehtar’s neck and shoulder injuries. In concluding Mehtar was entitled to summary disposition, the trial court found there was no genuine issue of material fact ‘as to the fact that the [IME] really concentrates on the range of motion for the shoulder and says that the shoulder doesn’t have to have any further treatment.’ The trial court also found that the IME ‘misses completely the cervical and lumbar spine. . . . [I]t’s clear that the [IME] is focusing only on the shoulder. So I’ve got to grant this.’
On this basis, we conclude that trial court erroneously granted summary disposition in Mehtar’s favor. Although the IME’s conclusion section focused mostly on Mehtar’s shoulder, it included Dr. Garver’s conclusion that Mehtar had full range of motion of his neck and there was nothing suggesting a radiculopathy. Thus, it cannot be said that Dr. Garver failed to reach a conclusion about Mehtar’s alleged neck injury. Dr. Garver opined: ‘[Plaintiff] has no pain whatsoever from his neck.’ Evidence should be construed in a light most favorable to the nonmoving party. El-Khalil, 504 Mich at 160. But the trial court failed to consider the IME in a light most favorable to Fremont when it did not consider Dr. Garver’s examination and conclusions regarding Mehtar’s neck as creating a question of fact as to whether the accident caused an injury to Mehtar’s neck. Thus, the trial court should not have granted summary disposition on this basis.”