Michigan Court of Appeals; Docket #357578; Unpublished
Judges Letica, Kelly, and Riordan; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Objective Manifestation Element of Serious Impairment of Body Function (McCormick Era: 2010 – Present) [§3135(5)**]
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Jamil Barash’s auto negligence action against Defendant Joseph Kolar. The Court of Appeals held that Plaintiff failed to present sufficient evidence to create a question of fact as to the first prong of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich App 180 (2010)—whether he sustained an objectively manifested impairment as a result of the subject collision.
Jamil Barash, a 76-year-old, was injured when a truck backed up into him as he stood at a bus stop near a construction zone. Barash was transported from the scene of the collision to the hospital, where he complained of pain to his left side and ribs and underwent radiographic imaging, revealing degenerative changes to his spine, but no evidence of acute injury. At some point thereafter, Barash filed a third-party auto negligence action against the driver of the truck, Joseph Kolar, and Kolar’s employer, the owner of the truck. Barash also underwent three insurance medical examinations, with each examiner opining that Barash’s problems were entirely attributable to his “extensive degenerative problems.” Barash continued to receive treatment for his injuries after the crash—including two surgeries on his knees—but while his medical records “confirmed degenerative changes and arthritis in [Barash’s] complaint areas” there was no evidence of acute injury. Based on their IMEs, defendants moved for summary disposition, arguing that Barash failed to establish that he had suffered an objectively manifested impairment as a result of the crash. In response, Barash argued that a question of fact existed at least as to whether the crash exacerbated his pre-existing degenerative problems, presenting MRIs from three years after the crash to show significant changes in his condition. The trial court agreed with the defendants and granted their motion.
The Court of Appeals affirmed the trial court’s summary disposition order, noting that Barash “suffered from extensive medical complaints dating back to the early 1990s,” which were the same complaints he made after the crash. The Court noted that none of Barash’s medical records suggested that his ongoing symptoms were the result of an exacerbation of his pre-existing degenerative problems. And, as to the MRI images Barash presented, dated three years post-collision, the Court found that Barash “ignore[d] the impact of the passage of time and intervening events on injury and causation.” It should also be noted that, in support of its holding, the Court cited the first-party no-fault PIP case, McPherson v McPherson, 493 Mich 294 (2013), even though this was a third-party auto negligence case involving starkly different facts and issues.
“A review of plaintiff’s medical records reveals that he suffered from extensive medical complaints dating back to the early 1990s, and plaintiff reported the same complaints to his shoulder, back, neck, and knees following the accident. Treatments that he received prior to the accident, such as physical therapy, were also administered after the accident. However, although some of the medical reports reflected that plaintiff reported his involvement in a pedestrian-vehicular accident, there was no commensurate determination by the treating physicians that the condition plaintiff experienced was caused by or preexisting and aggravated as a result of the accident. That is, plaintiff failed to present medical evidence to support the exacerbation of preexisting conditions. In contrast, defendants submitted three IMEs all indicating plaintiff’s impairments were not the result of the accident, but of degenerative diseases. Defendants’ IMEs also rejected the argument that plaintiff’s impairments were exacerbated by the accident. One examiner concluded that plaintiff likely suffered contusions from being bumped by the truck, but found that, ‘[a]ll of the diagnoses related to the motor vehicle accident, contusions and abrasions have resolved and are no longer supported by objective findings.’ In October 2017, this examiner further concluded that there was no treatment needed for injuries sustained as a result of the accident in question. In contrast, the MRI results upon which plaintiff relied to show the exacerbation of his medical conditions after the accident were taken three years after the accident, and after plaintiff suffered additional falls and injuries.
Plaintiff’s reliance on imaging test results from three years after the accident showing impairments ignores the impact of the passage of time and intervening events on injury and causation. See McPherson, 493 Mich at 298-299. Plaintiff failed to correlate his impairments to the accident as opposed to degenerative issues necessarily exacerbated by the passage of time, particularly when plaintiff suffered various falls and injuries between the accident and the imaging on which he relies.”