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Mitchner v Progressive Mich Ins Co, et al (COA – UNP 6/23/2022; RB #4443)   

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Michigan Court of Appeals; Docket #356698; Unpublished 
Judges Gadola, Borrello, and Kelly; Per Curiam 
Official Michigan Reporter Citation: Not Applicable; Link to Opinion, Link to Dissent 


STATUTORY INDEXING: 
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)**]
Causation Issues [§3135]

TOPICAL INDEXING: 
Not Applicable


SUMMARY: 
In this 2-1, unpublished, per curiam decision (Gadola, dissenting), the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Gordon Mitchner’sauto negligence action against Defendant Thomas Gaffney.  The Court of Appeals held that Mitchner presented sufficient evidence to create a question of fact as to the first and third prongs of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010)—whether he sustained an objectively manifested impairment which affected his general ability to lead his normal life—as well as a question of fact on the issue of causation.

Thomas Gaffney crashed into the rear of Gordon Mitchner’s vehicle as Mitchner was attempting to make a right turn.  Mitchner testified that he believed he lost consciousness immediately after the crash, but he denied emergency medical treatment at the scene.  He testified that upon waking up the next morning, however, he ‘couldn’t move,’ eventually driving himself to the hospital.  

At the hospital, a CT scan of Mitchner’s cervical spine revealed a ‘large disc herniation at C3-C4 causing moderate spinal canal stenosis[] probably flattening the ventral cord,’ and the radiologist noted that ‘[a]n acute posttraumatic disc herniation is not excluded.’  Mitchner remained in a cervical collar for approximately six months after the crash and was disabled from work for at least 10 days due to ongoing neck and back pain.  His treating physician diagnosed him with strains of the muscles and tendons of his neck, acute pain due to trauma, intravertebral disc disorders, and chronic pain syndrome.  He underwent physical therapy for his symptoms, which he testified forced him to walk with a cane for two years after the crash, caused him to be unable to partake in sports or lift weights, and even disabled him from sitting upright for extended periods of time.  Moreover, Mitchner testified that he could no longer play with his children as actively as he could prior to the crash, and that he struggled performing household chores, such that he was required to enlist outside help.

Mitchner eventually filed a third-party auto negligence action against Gaffney, the focus of which became Mitchner’s history of neck and back issues which predated the crash.  He had complained of back pain to his doctor as recently as one week before the crash, and two insurance medical examiners (IMEs) procured by the insurance company defending Gaffney concluded that Mitchner’s only injuries from the crash were neck sprains or strains which would have resolved by the date of examination, such that Mitchner would have no limitations distinct from those he suffered from before the crash.  Based on the findings of the IMEs, Gaffney moved for summary disposition, arguing that Mitchner could not prove that his injuries were caused by the crash and could not establish the first and third prongs of the McCormick test for serious impairment.  The trial court granted Gaffney’s motion, finding that Mitchner did not present sufficient evidence to create a question of fact as to whether he sustained an objectively manifested impairment which affected his general ability to lead his normal life as a result of the crash. In so holding, the trial court emphasized that at the time of the crash, Mitchner was suffering from degenerative pre-existing conditions that were already limiting his lifestyle.

The Court of Appeals reversed the trial court’s summary disposition order, holding, first, that there was a question of fact as to the issue of causation.  The Court noted that the radiologist who interpreted the CT scan of Mitchner’s cervical spine the day after the crash noted that the cervical disc herniation could have been an acute posttraumatic injury, and Gaffney presented no evidence “that [Mitchner’s] cervical disc herniation was actually present before the motor vehicle accident.”  Moreover, at least one of Gaffney’s own medical examiners opined that Mitchner sustained cervical and lumbar spine sprains as a result of the crash.  Thus, although there was ‘no question that [Mitchner] suffered from some degree of pre-existing and degenerative conditions in his neck and back,’ there was sufficient evidence to create a question of fact as to whether he sustained new impairments or aggravations of pre-existing impairments as a result of the crash.

“There is no question that plaintiff suffered from some degree of pre-existing and degenerative conditions in his neck and back for which he had received treatment before the subject motor vehicle accident. However, there was conflicting evidence creating a genuine issue of material fact regarding whether there were additional new impairments or aggravations of pre-existing conditions, that would not have occurred but for the motor vehicle accident such that summary disposition on this issue was improper. ‘Although causation cannot be established by mere speculation, a plaintiff’s evidence of causation is sufficient at the summary disposition stage to create a question of fact for the jury if it establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible theories, although other plausible theories may also have evidentiary support.’ Patrick v Turkelson, 322 Mich App 595, 617; 913 NW2d 369 (2018) (quotation marks and citations omitted). ‘Causation is an issue that is typically reserved for the trier of fact unless there is no dispute of material fact.’ Id. at 616. 

Here, the trial court erred by essentially weighing the relative strength of evidence and resolving factual conflicts to determine that only cervical strain could arguably be attributed to the motor vehicle accident. . . . ” 

As to the first prong of the McCormick test for serious impairment, the Court noted that the trial court erred “by relying on its erroneous causation determination to similarly limit its analysis of the threshold injury question to a cervical strain.”  Again, there was sufficient evidence to create a question of fact as to whether Mitchner sustained a cervical disc herniation as a result of the crash, which would certainly qualify as an objectively manifested impairment.

“Here, the trial court determined that plaintiff had suffered an objectively manifested impairment in the form of a cervical strain, reaching this conclusion on the basis of its earlier finding that this was the only injury that had been caused by the accident. As we have already discussed, there were genuine issues of material fact regarding the causation of plaintiff’s objectively perceivable impairments. Hence, the trial court further erred by relying on its erroneous causation determination to similarly limit its analysis of the threshold injury question to a cervical strain. Plaintiff’s medical records, including imaging reports, provided evidence of “an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function” such that there was a question of fact on the issue of objectively manifested impairment. Id. at 196; see also MCL 500.3135(5)(a).”  

As to the third prong of the McCormick test, the Court of Appeals held that Mitchner presented sufficient evidence to create a question of fact as to whether his impairments affected his general ability to lead his normal life.  He testified that as a result of the injuries he sustained in the crash, he became disabled from work for a period of time; he testified that he could not perform various physical activities, such as play with his children or sit for extended periods of time; and he testified that he needed to use a cane and a neck brace for long periods of time after the crash.

“With respect to the third prong, there was evidence that plaintiff was employed working in construction at the time of the accident but was disabled from work by his treating physicians for at least some period of time following the accident, and plaintiff provided testimony in his deposition about activities that he could no longer perform—or was unable to perform for at least some period of time following the accident without the assistance of a cane or brace that he did not previously need—as a result of the impairments he suffered in the accident. As the McCormick Court explained, the statute ‘merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed’; ‘only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has itself been affected’; and ‘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.’ ’ Id. at 202-203; see also MCL 500.3135(5)(c). The trial court in this case erred by ignoring plaintiff’s evidence of the effect of his impairments on his general ability to lead his normal life and instead concluding that there was no question of fact that plaintiff’s life was exactly the same after the accident as it had been before.” 

Judge Gadola dissented, arguing that the evidence Mitchner presented in support of his argument regarding causation and objective manifestation was not sufficient to create a question of fact and, furthermore, that Mitchner’s brief disability from work and claimed difficulties performing other activities were not sufficient to create a question of fact as to the general ability/normal life element, especially considering Mitchner’s pre-existing struggles with neck and back pain.


Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

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