                            STATE OF MICHIGAN

                               COURT OF APPEALS



TAKISHA WILLIAMS,                                                    UNPUBLISHED
                                                                     May 17, 2018
                 Plaintiff-Appellant,

v                                                                    No. 338337
                                                                     Macomb Circuit Court
AAA MICHIGAN and AUTO CLUB                                           LC No. 2016-000655-NF
INSURANCE COMPANY,

                 Defendants,

and

ROBIN MARIE WROBEL,

                 Defendant-Appellee.


Before: CAMERON, P.J., and FORT HOOD and GLEICHER, JJ.

PER CURIAM.

         Plaintiff, Takisha Williams, appeals as of right an opinion and order granting summary
disposition in favor of defendant, Robin Marie Wrobel, in this third-party automobile negligence
action. 1 We reverse.

                                        I. BACKGROUND

        This matter arises from an automobile accident in which defendant struck the rear end of
plaintiff’s vehicle at a stoplight. According to plaintiff, when defendant struck the vehicle,
plaintiff’s seatbelt immediately locked, causing her head to snap backward and hit the headrest,
and she felt a tug in her left shoulder. Approximately 90 minutes after the accident, plaintiff
went to the hospital with intense pain in her neck, back, and shoulder. A week later, plaintiff
visited the hospital a second time and was diagnosed with a cervical strain, lumbar strain,
thoracic myofascial strain, and a left shoulder strain. A day later, plaintiff visited her primary
doctor, Dr. Stephen Swetech, and he diagnosed plaintiff with a cervical spine strain, and he


1
    The remaining defendants entered into a settlement agreement with plaintiff.


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prescribed pain medication, physical therapy, and two weeks’ rest from work. Swetech also
ordered a cervical MRI and a MRI of plaintiff’s left shoulder, both indicating injury to the neck,
back, and shoulder.

        Thereafter, plaintiff filed a third-party claim against defendant. At the close of discovery,
defendant moved for summary disposition under MCR 2.116(C)(10). The trial court granted
defendant’s motion, concluding that plaintiff failed to present a genuine issue of material fact as
to whether she suffered a serious impairment of a body function, i.e., that her injuries resulted in
an objectively manifested impairment of a serious body function that affected her general ability
to lead a normal life. On appeal, plaintiff argues that the trial court erred in granting defendant’s
motion for summary disposition because plaintiff proffered sufficient evidence to demonstrate
that she suffered a serious impairment of body function as required by MCL 500.3135. We
agree.

                                  II. STANDARD OF REVIEW

        This Court reviews whether a trial court properly granted a motion for summary
disposition de novo. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich
App 362, 369; 775 NW2d 618 (2009). This Court reviews only the evidence that was presented
at the time the motion was decided, which, under MCR 2.116(C)(10), includes “affidavits,
pleadings, depositions, and other evidence” that the parties submitted. Innovation Ventures v
Liquid Mfg, 499 Mich 491, 507; 885 NW2d 861 (2016) (quotation marks and citation omitted).
Additionally, the trial court reviews the evidence in a light most favorable to the party opposing
the motion. Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223
(2013).

        “A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the
factual support for a claim.” Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466,
474-475; 776 NW2d 398 (2009). Under MCR 2.116(C)(10), summary disposition is appropriate
if the evidence submitted by the parties fails to establish a genuine issue of a material fact, and
the moving party is entitled to judgment or partial judgment as a matter of law. Innovation
Ventures, 499 Mich at 507. A genuine issue of material fact exists if, after viewing the record in
a light most favorable to the nonmoving party, reasonable minds could differ on an issue. West v
Gen Motor Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The trial court may not make
findings of fact, “weigh the evidence[,] or make determinations of credibility when deciding a
motion for summary disposition.” Innovative Adult Foster Care, 285 Mich App at 480.

                     III. SERIOUS IMPAIRMENT OF BODY FUNCTION

       Under Michigan’s no-fault insurance act, tort liability is limited. Patrick v Turkelson, __
Mich App __; __ NW2d __ (2018) (Docket No. 336061); slip op at 4. However, “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 . . . [a] serious
impairment of body function.” MCL 500.3135(1). A “serious impairment of body function” is
defined as “an objectively manifested impairment of an important body function that affects the
person’s general ability to lead his or her normal life.” MCL 500.3135(5). Whether the plaintiff
has suffered a serious impairment of body function is a threshold question that the trial court

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should decide as a matter of law if there is no “factual dispute concerning the nature and extent
of the person’s injuries,” MCL 500.3135(2)(a)(i), or “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,” MCL
500.3135(2)(a)(ii). “[T]he disputed fact does not need to be outcome determinative in order to
be material, but should be “ ‘significant or essential to the issue or matter at hand.’ ” McCormick
v Carrier, 487 Mich 180, 194; 795 NW2d 517 (2010), quoting Black’s Law Dictionary (8th ed).
However, when there is a genuine issue of material fact as to the nature and extent of the
plaintiff’s injuries, “the threshold question of whether there was a serious impairment of body
function is for the jury and may not be decided as a matter of law.” Patrick, __ Mich App at __;
slip op at 4.

       In McCormick, the Supreme Court articulated the test to establish a serious impairment of
body function:

       (1) an objectively manifested impairment (observable or perceivable from actual
       symptoms or conditions) (2) of an important body function (a body function of
       value, significance, or consequence to the injured person) that (3) affects the
       person’s general ability to lead his or her normal life (influences some of the
       plaintiff’s capacity to live in his or her normal manner of living). [McCormick,
       487 Mich at 215.]

Notably, a “bright-line rule or checklist” does not exist in making this evaluation. Chouman v
Homeowners Ins Co, 293 Mich App 434, 441; 810 NW2d 88 (2011). Whether an individual has
suffered a serious impairment of body function is “inherently fact-and circumstance-specific,”
and the analysis in making this determination must be “conducted on a case-by-case basis.” Id.,
quoting McCormick, 487 Mich at 215.

         An objectively manifested impairment is generally one that is “observable or perceivable
from actual symptoms or conditions.” McCormick, 487 Mich at 196. There must be evidence of
“actual symptoms or conditions that someone other than the injured person would observe or
perceive as impairing a body function.” Id. The plaintiff may proffer evidence—generally,
medical testimony—of a physical basis for the pain and suffering to demonstrate that the
impairment is objectively manifested. Patrick, __ Mich App at __; slip op at 4. Mere subjective
complaints are insufficient to show impairment. Id. If an objectively manifested impairment of
a body function has been shown, the next question is whether the impaired body function is
important. McCormick, 487 Mich App at 198.2 A body function is important if it has “great
value, [is] significant, or [is of] consequence.” Id. at 199 (quotation marks and citation omitted).
Once a plaintiff has suffered an objectively manifested impairment of an important body
function, the plaintiff must demonstrate that the impairment has affected his or her general
ability to lead a normal life. Id. at 200. The impairment will have “an influence on some of the
person’s capacity to live in his or her normal manner of living.” Id. at 202. Whether the


2
 Defendant does not dispute that the use of plaintiff’s neck, back, and shoulders are important
body functions.


                                                -3-
impairment has affected one’s general ability to lead a normal life is a subjective inquiry.
Patrick, __ Mich App at __; slip op at 4. The plaintiff’s ability to lead a normal life need not be
destroyed, nor does the impairment need to last a certain period of time. Id.

                      A. OBJECTIVELY MANIFESTED IMPAIRMENT

       Plaintiff argues that her neck, back, and shoulder pain constitutes an objectively
manifested impairment. We agree.

        Review of the record reveals that plaintiff went to Henry Ford Macomb Emergency on
the same day as the accident and again on June 8, 2015. The medical record indicated the
diagnoses of a cervical strain, lumbar strain, and thoracic myofascial strain. Plaintiff also
presented evidence from her visits with Swetech, a board-certified doctor. Swetech first saw
plaintiff 11 days after the accident. Based on the MRI results, Swetech concluded that plaintiff
had a “reversal of [her] cervical loradis,” multiple marginal spurs, disc bulges, disc-spur bulges,
and fatty marrow changes within her vertebrae. Results from the MRI on plaintiff’s left shoulder
showed that plaintiff had tendonitis, moderate fibro-osseous capsular hypertrophy, but there was
“no evidence for any particular bursitis or significant shoulder joint effusion.”

        Defendant relies primarily on the findings of Dr. Patrick L. Stephens, who performed an
independent medical evaluation on March 17, 2016. Stephens indicated that the MRIs
demonstrated a preexisting cervical disc disease and that plaintiff had subjective complaints of
pain in her left shoulder. However, Stephens explicitly opined that plaintiff “may have sustained
a lumbosacral strain” as a result of the accident even though he did not believe that her current
symptoms were related to the accident. Stephens also opined that plaintiff “did sustain a
whiplash associated disorder,” but that the condition had resolved itself by the time of the
examination. Additionally, Stephens concluded that plaintiff “may have sustained some
myofascial trauma to her shoulder.”

        It is clear that the record includes evidence of medical findings establishing a question of
fact as to whether plaintiff’s neck and back pain manifested itself in ways that were observable
and documented by medical professionals. See Patrick, __ Mich App at __; slip op at 6. Rather
than follow the factors set forth in McCormick, the trial court improperly made its own
evaluation regarding the persuasiveness of plaintiff’s medical evidence related to her back and
neck pain. Innovative Adult Foster Care, 285 Mich App at 480. See also Patrick, __ Mich App
at __; slip op at 6. Additionally, defendant focuses the majority of his argument on causation.
However, causation is generally an issue of fact to be decided by a trier of fact. Nichols v
Dobler, 253 Mich App 530, 532; 655 NW2d 787 (2002). The objective MRIs and medical
record offered by plaintiff relate findings of subjective complaints to the accident. Moreover,
plaintiff’s medical records before the accident, including cervical MRIs, indicated that she did
not have nearly the level of injury to her neck and back as was present on the post-accident
MRIs. While defendant claims that these injuries are degenerative ailments and not a result of




                                                -4-
the motor vehicle accident, the question of causation should be properly left to the jury. When
reviewing the evidence in a light most favorable to plaintiff, there was sufficient evidence to
create a genuine issue of material fact as to whether she suffered an objectively manifested
impairment and a physical basis for her complaints of pain and suffering.3

                     B. GENERAL ABILITY TO LEAD A NORMAL LIFE

       Plaintiff also argues that there is a material question of fact as to whether her neck and
back pain has resulted in an inability to generally lead a normal life. We agree.

        Whether plaintiff has suffered an impairment that affected her “ability to lead a normal
life necessarily requires a comparison of the plaintiff’s life before and after the incident.”
McCormick, 487 Mich at 202. Plaintiff’s deposition showed that she was fired from her job as a
nursing assistant because she could not perform the physical duties, and she initially required
help from her mother with cooking, cleaning, laundry, showering, and dressing five or six times
a week. Plaintiff testified that she can no longer run on a treadmill and cannot dance. Plaintiff
also presented record evidence that she could not work for approximately seven months because
of the pain she was experiencing. Viewing the evidence in a light most favorable to plaintiff,
there is an issue of fact as to whether plaintiff’s injuries have affected her general ability to lead a
normal life. Just because she is still able to do some work, or can run, walk for 30 minutes, and
take vacations, does not mean that her ability to lead a normal life has not been diminished. The
plaintiff’s ability to lead a normal life need not be destroyed, nor does the impairment need to
last a certain period of time. Patrick, __ Mich App at __; slip op at 4. To find otherwise would
be an improper factual determination.

        Although Stephens stated that he did not believe plaintiff’s “ongoing” symptoms were a
direct result of the accident, a serious impairment of bodily function need not be permanent.
McCormick, 487 Mich at 203. The fact that some of plaintiff’s symptoms have resolved
themselves overtime does not mandate a conclusion that plaintiff never suffered the impairment
of a bodily function. See id. at 203. Additionally, plaintiff’s previous back and neck pain does
not preclude a finding that plaintiff suffered an additional injury as a result of the accident.
Therefore, based on the evidence presented, there is a question of fact with respect to whether
she was able to lead her normal life after the accident.

        Viewing the evidence in a light most favorable to the nonmoving party, the threshold
issue could not be determined as a matter of law because there is a factual dispute over the nature
and extent of plaintiff’s injuries that is material to the determination as to whether she suffered a
serious impairment of an important body function under MCL 500.3135. Therefore, the
threshold question of whether there was a serious impairment of bodily function is for the jury to




3
 Defendant does not dispute that the use of one’s neck and back are important body functions
under the second prong of McCormick.


                                                  -5-
decide. See Chouman, 293 Mich App at 444.

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



                                                         /s/ Thomas C. Cameron
                                                         /s/ Karen M. Fort Hood
                                                         /s/ Elizabeth L. Gleicher




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