                            STATE OF MICHIGAN

                            COURT OF APPEALS



ADEL ALI and EFADA ALI,                                            UNPUBLISHED
                                                                   October 16, 2018
               Plaintiffs-Appellants,

and

DEARBORN SPINE CENTER, PLLC,

               Intervening Plaintiff,

v                                                                  No. 339102
                                                                   Wayne Circuit Court
GEICO INDEMNITY COMPANY,                                           LC No. 16-001652-NI

               Defendant,

and

DAVID OWEN CLARK,

               Defendant-Appellee.


Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

       Plaintiffs Adel and Efada Ali appeal as of right the trial court’s final order of dismissal
and, by extension, an earlier order granting summary disposition in favor of defendant, David
Owen Clark. Because we agree that the trial court erred by granting summary disposition in
Clark’s favor, we reverse and remand for further proceedings.

        Plaintiffs contend that the trial court erred in granting summary disposition pursuant to
MCR 2.116(C)(10) because material questions of fact existed as to whether plaintiffs had
established serious impairments of body function pursuant to the no-fault act, MCL 500.3101 et
seq., and specifically, as to whether their impairments were objectively manifested.

       “The trial court’s ruling on a motion for summary disposition is reviewed de novo on
appeal.” ZCD Transp, Inc v State Farm Mut Auto Ins Co, 299 Mich App 336, 339; 830 NW2d
428 (2013). Summary disposition pursuant to MCR 2.116(C)(10) is appropriate where “there is
no genuine issue as to any material fact, and the moving party is entitled to judgment or partial
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judgment as a matter of law.” Id., quoting MCR 2.116(C)(10) (quotation marks omitted).
“There is a genuine issue of material fact when reasonable minds could differ on an issue after
viewing the record in the light most favorable to the nonmoving party.” BC Tile & Marble Co,
Inc v Multi Bldg Co, Inc, 288 Mich App 576, 583; 794 NW2d 76 (2010) (quotation marks and
citation omitted). In reviewing a motion brought pursuant to MCR 2.116(C)(10), this Court
considers “affidavits, pleadings, depositions, admissions, and documentary evidence submitted
or filed in the action to determine whether a genuine issue of any material fact exists to warrant a
trial.” ZCD Transp, Inc, 299 Mich App at 339-340 (quotation marks and citation omitted).
“[R]eview is limited to the evidence that [was] presented to the circuit court at the time the
motion was decided.” Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 476; 776
NW2d 398 (2009).

       MCL 500.3135 defines tort liability for injuries stemming from automobile accidents,
and provides, in pertinent part:

               (1) A person remains subject to tort liability for noneconomic loss caused
       by his or her ownership, maintenance, or use of a motor vehicle only if the injured
       person has suffered death, serious impairment of body function, or permanent
       serious disfigurement.

               (2) For a cause of action for damages pursuant to subsection (1) filed on or
       after July 26, 1996, all of the following apply:

               (a) The issues of whether the injured person has suffered serious
       impairment of body function or permanent serious disfigurement are questions of
       law for the court if the court finds either of the following:

              (i) There is no factual dispute concerning the nature and extent of the
       person’s injuries.

               (ii) There is a factual dispute concerning the nature and extent of the
       person’s injuries, but the dispute is not material to the determination whether the
       person has suffered a serious impairment of body function or permanent serious
       disfigurement. . . .

                                              * * *

               (5) As used in this section, “serious impairment of body function” means
       an objectively manifested impairment of an important body function that affects
       the person’s general ability to lead his or her normal life.

In order to establish a “serious impairment of a body function,” a plaintiff must show: “(1) an
objectively manifested impairment (2) of an important body function that (3) affects the person’s
general ability to lead his or her normal life.” McCormick v Carrier, 487 Mich 180, 195; 795
NW2d 517 (2010).

      On appeal, plaintiffs argue that the trial court erred by finding that they failed to
demonstrate the existence of objectively manifested impairments. As the Supreme Court

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explained in McCormick, “[A]n ‘objectively manifested’ impairment is commonly understood as
one observable or perceivable from actual symptoms or conditions.” Id. at 196. In considering
this prong of the threshold injury inquiry, the focus is on “whether the impairment is objectively
manifested, not the injury or its symptoms.” Id. at 197. Subjective complaints of pain and
suffering are insufficient unless supported by evidence demonstrating a physical basis for the
complaints. Id. at 197-198.

        The parties produced plaintiffs’ medical records from before and after the accident in
connection with Clark’s motion for summary disposition. 1 Throughout their postaccident
medical records, both plaintiffs complained of constant aching pain in their necks, upper backs,
and lower backs. Plaintiffs’ treating physicians performed various physical tests to evaluate their
complaints, many of which had positive results. Several physicians also observed and noted
reduced range of motion in plaintiffs’ cervical and lumbar regions. MRIs of Adel’s spine
showed a “[d]isc bulge with asymmetric bilateral facet joint hypertrophy . . . compressing the
thecal sac and causing moderate left neuroforaminal narrowing” at the L4 to L5 level; a “[d]isc
bulge with posterocentral protrusion type herniation . . . compressing the thecal sac” at the L5 to
S1 level; and small disc herniation at the C4 to C5 and C5 to C6 levels. Efada’s cervical spine
MRI revealed a central disc herniation at C4 to C5, and her lumbar spine MRI showed the
following results:

               T11-T12: Disc bulge is seen, compressing the ventral thecal sac.

              T12-L1: Moderate reduction in the intervertebral disc height is seen with
       posterocentral herniation and annular tears, compressing the thecal sac and
       causing mild spinal canal stenosis with indentation upon the ventral conus.

                                             * * *

              L2-L3: Disc bulge with left foraminal propensity and bilateral facet joint
       hypertrophy is seen, compressing the thecal sac and causing mild to moderate left
       neuroforaminal narrowing.

             L3-L4: Disc bulge with left foraminal protrusion type herniation is seen,
       compressing the thecal sac and causing moderate left neuroforaminal narrowing.

               L4-L5: Disc bulge is seen, compressing the thecal sac and causing mild
       bilateral neuroforaminal narrowing.



1
  We note that plaintiffs attached medical statements to their motion for reconsideration before
the trial court that undoubtedly would have been significant enough to create material issues of
fact. However, this Court’s review of a motion for summary disposition is limited to the
evidence available at the time the motion was decided, and in reviewing the motion, this Court
does not consider evidence on appeal that was first presented in a subsequent motion for
reconsideration. Innovative Adult Foster Care, Inc, 285 Mich App at 474 n 6.


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               L5-S1: Disc bulge with left foraminal herniation is seen, compressing the
       thecal sac and causing moderate left neuroforaminal narrowing.

        Despite the subjectivity of plaintiffs’ complaints of pain and suffering, they provided
objective medical evidence to establish a physical basis for their complaints which created a
genuine issue of material fact. See id. at 197-198. In addition, plaintiffs’ physicians observed
some aspects of their respective impairments, including reduced range of motion. That Clark
provided contradictory evidence does not entitle him to summary disposition, but rather,
evidences a genuine issue of material fact when viewed in a light most favorable to plaintiffs.
Accordingly, the trial court erred by granting Clark’s motion for summary disposition.

        Clark contends that there is no genuine issue of material fact because plaintiffs failed to
establish an explicit causal relationship between the accident and plaintiffs’ impairments.
Although Clark presents this argument as one concerning the objectively manifested impairment
requirement, just as he did before the trial court, the issue of causation is distinct from the
threshold injury inquiry. See Patrick v Turkelson, 322 Mich App 595, 615-616; 913 NW2d 369
(2018). Nonetheless, because a successful argument concerning causation would entitle Clark to
summary disposition, albeit on different grounds, we will consider the merits of Clark’s
contention. See Adell Broadcasting v Apex Media Sales, 269 Mich App 6, 12; 708 NW2d 778
(2005) (explaining that this Court can affirm a ruling on grounds that were presented to, but not
decided by, the trial court); In re Herbach Estate, 230 Mich App 276, 284; 583 NW2d 541
(1998) (stating that an appellee may argue an alternative ground for affirmance).

        Proximate causation is an element of every claim sounding in negligence, Patrick, 322
Mich App at 616, and a tortfeasor is only exposed to liability under the no-fault act for
“noneconomic losses caused by his or her ownership, maintenance, or use of a motor
vehicle . . . ,” MCL 500.3135(1) (emphasis added). Proximate cause consists of two
components: factual causation and legal causation. Patrick, 322 Mich App at 616. Factual
causation exists where the evidence demonstrates that, more likely than not, the plaintiff would
not have been injured but for the defendant’s negligent conduct. Id. at 617. “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.” Id. (quotation marks and citations
omitted). “To establish legal cause, the plaintiff must show that it was foreseeable that the
defendant’s conduct may create a risk of harm to the victim, and . . . [that] the result of that
conduct and intervening causes were foreseeable.” Id. (quotation marks and citation omitted;
alteration in original).

        Efada’s preaccident medical records indicate that she began complaining of recurrent
lower back pain of midlevel intensity several years before the accident, which worsened with
physical activities like walking and standing. Her pain was effectively treated with ibuprofen,
acetaminophen, and topical pain relief products. After the accident, Efada reported constant and
intermittent pain of increased severity in her lower back and, apparently for the first time,
indicated that she was experiencing intense pain in her upper back and neck. Several months
later, Efada’s pain was also radiating to her arms. In addition to analgesic medication, Efada was


                                                -4-
prescribed physical therapy and chiropractic treatment after the accident, as well as epidural
steroid injections to treat her pain.

        Adel’s preaccident medical records also reflected preexisting complaints of neck and
back pain that he generally rated as low or middling severity. Preaccident imaging studies
revealed “[c]entral disc herniations at C4-C5 and C5-C6,” a “[s]uperimposed annular tear at C5-
C6 with an additional annular tear posterocentral disc at C3-C4,” and several minimal disc
bulges in his lumbar region. However, Adel was able to tolerate the pain and testified that he
previously worked on his feet 10 hours a day, four days a week; performed basic repairs on his
home; and performed other daily tasks at home without assistance. After the accident, Adel’s
back and neck pain worsened to the point that he could no longer work and he required
assistance with household tasks and childcare.

        Although Clark presented evidence demonstrating that both plaintiffs reported similar
complaints of back and neck pain long before the subject automobile accident, as well as expert
opinions disputing plaintiffs’ contentions that their injuries arose from the automobile accident,
an injured party may still be entitled to recover damages if the tortfeasor’s negligence aggravated
a preexisting condition or caused new symptoms. See Wilkinson v Lee, 463 Mich 388, 394-397;
617 NW2d 305 (2000); Fisher v Blankenship, 286 Mich App 54, 63; 777 NW2d 469 (2009).
Thus, despite the possibility that plaintiffs’ injuries were the product of degenerative or
preexisting conditions, a reasonable fact-finder could still conclude that a logical sequence of
cause and effect existed because the extent of plaintiffs’ pain purportedly increased to the point
of becoming debilitating only after the accident occurred. “Additionally, injuries of various
kinds . . . are obviously a foreseeable result of negligently causing a motor vehicle accident,”
Patrick, 322 Mich App at 620, and Clark does not appear to contest legal causation in any event.
Accordingly, plaintiffs presented evidence of the required causal nexus which, viewed in the
light most favorable to them, precludes summary disposition.

        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.



                                                            /s/ Mark J. Cavanagh
                                                            /s/ Jane E. Markey
                                                            /s/ Anica Letica




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