AUDREY BRANCH V LYUDMILA KRAVKLIS
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STATE OF MICHIGAN
COURT OF APPEALS
AUDREY BRANCH,
UNPUBLISHED
October 21, 2008
Plaintiff-Appellant,
v
No. 280946
Oakland Circuit Court
LC No. 2006-075976-NI
LYUDMILA KRAVKLIS,
Defendant-Appellee.
Before: Servitto, P.J. and Donofrio and Fort Hood, JJ.
PER CURIAM.
Plaintiff appeals as of right from a circuit court order granting defendant’s motion for
summary disposition in this automobile negligence action. Because we conclude that there are
factual disputes concerning the nature and extent of plaintiff’s injuries that are material to
determining whether she has suffered a serious impairment of body function and as such the trial
court erred when it decided the issue as a matter of law, we reverse and remand. This appeal has
been decided without oral argument pursuant to MCR 7.214(E).
I
Plaintiff was injured in an automobile accident when defendant allegedly ran a red light
and collided with plaintiff’s vehicle. At plaintiff’s deposition, counsel agreed that the accident
occurred on January 30, 2004. Plaintiff testified at deposition that she was proceeding through
the intersection on a green light when defendant rammed into the driver’s side door of her car.
Plaintiff struck the center console. She had neck pain and a burning sensation throughout her
body. She was placed on a backboard with her neck immobilized and transported to the hospital,
where she specifically denied back pain. She was diagnosed with hip contusions and neck strain,
given pain medication, and discharged with a cervical collar. Plaintiff testified that on leaving
the hospital, she had neck and back pain and numbness in the left knee but the burning sensation
had resolved.
At the time of the accident, plaintiff had a history of bilateral shoulder pain and back
pain. A 2002 MRI and CT scan of the back showed only a minor abnormality. A 2003
ultrasound of the right shoulder showed osteoarthritic degenerative changes and a partial tear of
the rotator cuff for which surgery and physical therapy were recommended. Plaintiff testified
that corrective surgery had been scheduled for February 2004, but was canceled by the doctor for
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reasons she could no longer recall. A CT scan of the neck showed small protrusions at C3-C4
and C4-C5 and some spur formation. Plaintiff also suffered from fibromyalgia.
In the days following the accident, plaintiff began to experience numbness in her arms
and legs. She had pain in the right shoulder and lower back; the back pain radiated into the hips
and right leg. Plaintiff had trouble sleeping in bed and took to sleeping in a reclining chair.
Plaintiff who, at the time of the accident, worked part time as a dental assistant and full time at a
bank, was off work one week, during which time she consulted her family doctor. On her own
initiative, plaintiff began treating with a chiropractor. There are no records of any medical
treatment rendered between January 31 and November 7, 2004.
On November 10, 2004, plaintiff consulted Dr. Muzaffar Awan regarding radiating
bilateral shoulder pain and radiating low back pain. He noted that plaintiff had just had an MRI,
the results of which were not yet available. On examination, he detected limited range of motion
in the cervical spine and moderate palpable muscle spasms along the lumbosacral spine. He
diagnosed cervical myofascitis with possible cervical radiculopathy, lumbosacral myofascitis
with possible lumbar disc herniation and radiculopathy, and shoulder pain. He recommended
physical therapy, continued chiropractic treatments, and an EMG. The MRI of the lumbar spine
showed mild degenerative changes at T11-T12, mild sic space narrowing and desiccation at L3L4, and a slight bulge at L4-L5. The EMG was done on November 19, 2004. The results were
“consistent with right L4-5 radiculopathy” or, according to plaintiff, a pinched nerve. Plaintiff
attended a course of physical therapy, which helped to relieve her hip pain.
In January 2005, plaintiff returned to Dr. Awan with complaints of low back pain with
numbness in the left knee and right shoulder pain with numbness in the right hand. He noted
tenderness in the muscles of the cervical and lumbosacral spine and limited range of motion. He
diagnosed cervical and L4-L5 radiculitis and lumbosacral strain. He recommended that plaintiff
discontinue physical therapy and continue with chiropractic treatments.
In March 2005, plaintiff began treating with Dr. Kyle Anderson for right shoulder pain
that she reported as having worsened after the January 2004 accident. Another MRI of the right
shoulder, like the one from 2003, showed degenerative changes and a partial tear of the rotator
cuff, although Dr. Anderson stated that the tear had progressed and attributed its worsening to
the accident. In August 2005, plaintiff underwent arthroscopic surgery to repair the rotator cuff
tear, following which she engaged in physical therapy.1 She was off work six weeks. Dr.
Anderson imposed unidentified “significant restrictions” on plaintiff and advised her “to avoid
any use of that right arm.” Plaintiff stated that the restrictions included “no prolonged standing,
limited reaching and pulling, no overhead lifting, and no lifting over 10 pounds.” Because of her
limitations, her employers would not let her return to work until October.
In February 2007, plaintiff returned to see Dr. Anderson with renewed shoulder pain and
left knee pain. Plaintiff stated that she injured the knee in the 2004 accident, but had ignored it
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Plaintiff testified that at the same time she was in physical therapy for her shoulder, the
numbness in her left knee went away and the knee became painful.
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to take care of her shoulder injury. An MRI showed a degenerative meniscus tear for which
surgery was recommended. Dr. Anderson also recommended an ultrasound to assess the
shoulder. The ultrasound showed no new injury. In April 2007, plaintiff underwent arthroscopic
surgery to repair the meniscus tear in the knee, following which she engaged in physical therapy.
She was off work for two weeks.
Shortly before the knee surgery, plaintiff consulted Dr. Lawrence Kurz regarding her
neck and lower back pain. He noted “mild paraspinal cervical lumbar tenderness” and limited
range of motion in the cervical and lumbar spine. He diagnosed pain and possible right lumbar
radiculopathy.
In July 2007, plaintiff saw Dr. Patrick Stephens for an IME. She complained of neck
pain, radiating low back pain, and shoulder pain. Dr. Stephens opined that because plaintiff had
pre-existing neck and back problems, it was most likely degenerative in nature. The accident
may have aggravated the symptoms but any residual problems should have been resolved within
a year. He also opined that as plaintiff had a preexisting rotator cuff tear for which surgery was
recommended, any shoulder problems were not caused by the accident, although he agreed that
the restrictions imposed by Dr. Anderson were appropriate and should be continued indefinitely.
He further opined that the degenerative meniscus tear in plaintiff’s knee was not related to the
accident. He believed that her current pain symptoms were related to degenerative disc disease
as opposed to any injuries that may have been caused by the accident.
Plaintiff testified that her work at the dental office varied from zero to two days a week
depending on whether she was needed; it was the dentist’s decision and unrelated to plaintiff’s
ability to work. The restrictions on plaintiff’s movement necessitated a change of duties at the
bank. Her rate of pay was unaffected, but the hours she worked may have been reduced. Dr.
Anderson recommended that plaintiff seek alternative employment “if she is having trouble
staying on her work restrictions.” Plaintiff testified that she continues to experience muscle
spasms and swelling in her right shoulder and has occasional radiating low back pain, knee pain,
and numbness, particularly with prolonged walking or sitting and traversing stairs. She
developed a cyst on the back of her knee, for which she wears a brace on occasion. She treats
with a chiropractor every other week and takes pain medication and a muscle relaxant. Back
surgery had been discussed. Plaintiff testified that she used to work in her garden and go out
dancing twice a week. As a result of her injuries, plaintiff no longer did these things. She could
not lift bags of groceries or run the vacuum cleaner, she did less cooking than she used to, could
not wear high heels like she used to, and did not engage in sexual relations with her husband as
often as before. Overall, her “life in general is not the same,” but “I can’t put it in words.”
III
Plaintiff filed a complaint alleging that defendant operated a motor vehicle in a negligent
manner and caused that vehicle to strike plaintiff’s vehicle. Plaintiff asserted that “as a direct
and proximate result of the negligence” of defendant plaintiff “has sustained injuries which
injuries have caused Plaintiff pain, disability and mental anguish as well as serious impairment to
those body functions so involved[.]” Defendant filed a motion for summary disposition pursuant
to MCR 2.116(C)(10). Defendant did not dispute that there was at least a question of fact
whether plaintiff sustained objectively manifested injuries that impaired an important body
function. Defendant contended only that plaintiff’s minor limitations did not affect her general
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ability to lead her normal life. However, as part of that argument, she contended that plaintiff’s
shoulder and knee injuries were not causally related to the accident and thus not compensable.
Plaintiff filed a combined response and cross-motion for summary disposition, arguing that she
had sustained a serious impairment of body function. She had undergone two surgeries and may
need a third, she had permanent restrictions on the use of her right shoulder and may have to
change jobs, and she continues to experience pain for which she takes medication and receives
medical treatment.
During oral arguments on the motions the court queried whether plaintiff had an
objectively manifested impairment. In lieu of answering this question, the trial court treated it as
a matter of causation and ruled that “neither the shoulder injury for which surgery was
recommended before the accident, or the knee injury for which plaintiff did not seek medical
attention until 2007, rise to the threshold level.” Regarding the issue raised by the parties, i.e.,
whether plaintiff’s injuries affected her general ability to lead her normal life, the trial court ruled
as follows:
As to plaintiff’s work history, plaintiff missed a week of work at the dental
office due to the accident and then returned to her normal hours until eight months
after the accident when she had her shoulder surgery, after which she was off for
six weeks because she had restrictions, and that’s the plaintiff’s deposition at 15.
She stated that it is basically her employer’s decision that she doesn’t
work as often now, and that’s deposition page 21.
As to her work at the bank, the plaintiff had worked there full time since
1996 and only missed one week of work after the accident; was off for six weeks
after her surgery. She now works six days a week in operations from 7:00 p.m. to
about 5:00 or 6:00 a.m., and that’s page 24 of her deposition.
In regard to how the alleged injuries affected plaintiff’s life, she testified
that she doesn’t work in her garden now; that’s page 83. She can’t dance; that’s
page 84. She must wear low heels; page 86. She has problems going up and own
stairs; that’s page 88. She can’t put her groceries in the car when she goes
shopping; that’s page 89. She can’t do some types of housework, but can do
laundry; that’s page 90. And she takes medication for her pain.
Based on all the evidence presented this Court finds that plaintiff did not
present sufficient evidence to support a finding that she suffered an impairment
that affected the general ability to lead a normal life. Plaintiff only missed a week
of work after the accident. The six weeks that she took off and the resulting
restrictions were for shoulder surgery that was recommended before the accident
and this is not attributable to the accident. So then the time off and restrictions
due to her knee injury was [sic] for an injury for which she did not seek treatment
until three years after the accident and thus is not attributable to the accident.
In addition, the changes in plaintiff’s job duties were not due to any
injuries caused by the accident. She still works for two employers and holds two
jobs. This Court is further satisfied that none of the changes that plaintiff raised
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as to her pre- and post-accident lifestyle have actually affected her general ability
to conduct the course of her life and therefore defendant’s motion is granted.
Plaintiff now appeals as of right.
IV
The trial court’s ruling on a motion for summary disposition is reviewed de novo on
appeal. Gillie v Genesee Co Treasurer, 277 Mich App 333, 344; 745 NW2d 137 (2007).
“Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue
regarding any material fact and the moving party is entitled to judgment as a matter of law.”
West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When reviewing a motion
under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other
relevant record evidence in the light most favorable to the nonmoving party to determine whether
any genuine issue of material fact exists warranting a trial. Walsh v Taylor, 263 Mich App 618,
621; 689 NW2d 506 (2004). “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” West, supra.
V
Plaintiff contends that whether her shoulder and knee injuries were causally related to the
accident are questions of fact involving both the nature and extent of her injuries and proximate
causation and thus the court should not have considered them. The nature and extent of her
injuries is not in question--it is undisputed that plaintiff had a torn rotator cuff and a torn
meniscus, both of which required surgery. Rather, the question relates to causation, which is a
necessary element of any negligence action. Haliw v City of Sterling Hts, 464 Mich 297, 309310; 627 NW2d 581 (2001).
A person is subject to tort liability for automobile negligence if the injured person
“suffered death, serious impairment of body function, or permanent serious disfigurement.”
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(7). Whether a person suffered a serious impairment
of body function is a question of law for the court if there is no factual dispute about the nature
and extent of the plaintiff’s injuries or there is a factual dispute but it is not material to the
determination whether the plaintiff suffered a serious impairment of body function. MCL
500.3135(2)(a).
In Kreiner v Fischer, 471 Mich 109, 131; 683 NW2d 611 (2004), the Court established a
“multi-step process . . . to provide the lower courts with a basic framework for separating out
those plaintiffs who meet the statutory threshold from those who do not.” The first step requires
the court to determine if there is a factual dispute regarding the nature and extent of the
plaintiff’s injuries. Id. at 131-132. If there is no factual dispute or there is a factual dispute but it
is not material to the determination whether the person has suffered a serious impairment of body
function, the court may continue to the next step, which considers whether the plaintiff suffered
an objectively manifested injury that impaired an important body function. If, however, a court
determines there are factual disputes concerning the nature and extent of a plaintiff’s injuries that
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are material to determining whether the plaintiff has suffered a serious impairment of body
function, the court may not decide the issue as a matter of law. Id. at 132.
If an important body function has been impaired and the impairment is objectively
manifested, the next question is whether the impairment affected the plaintiff’s general ability to
lead her normal life. Kreiner, supra at 132. In answering this question, the court is to compare
the plaintiff’s life before and after the accident and consider “the significance of any affected
aspects on the course of plaintiff’s overall life.” Id. at 132-133. Factors to consider include “(a)
the nature and extent of the impairment, (b) the type and length of treatment required, (c) the
duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for
eventual recovery.” Id. at 133. “Merely ‘any effect’ on the plaintiff’s life is insufficient because
a de minimus effect would not, as objectively viewed, affect the plaintiff’s ‘general ability’ to
lead his normal life.” Id. (emphasis in original; footnote omitted). In other words, “[a] negative
effect on a particular aspect of an injured person’s life is not sufficient in itself to meet the tort
threshold, as long as the injured person is still generally able to lead his normal life.” Id. at 137.
The extent of a residual impairment is not established by self-imposed restrictions based on real
or perceived pain. Id. at 133 n 17. However, self-imposed restrictions based on actual physical
inability as opposed to pain may be considered a residual impairment. McDanield v Hemker,
268 Mich App 269, 283; 707 NW2d 211 (2005).
“Proof of causation requires both cause in fact and proximate cause.” Wiley v Henry
Ford Cottage Hosp, 257 Mich App 488, 496; 668 NW2d 402 (2003). A plaintiff must
adequately establish cause in fact in order for proximate cause to become a relevant issue.
Helmus v Michigan Dep’t of Transportation, 238 Mich App 250, 255-256; 604 NW2d 793
(1999). The cause in fact element generally requires a showing that “but for” the defendant’s
actions, the plaintiff’s injury would not have occurred. Skinner v Square D Co, 445 Mich 153,
163; 516 NW2d 475 (1994). The issue of proximate cause is generally a question of fact. Meek
v Dep’t of Transportation, 240 Mich App 105, 115; 610 NW2d 250 (2000). If, however, “the
facts bearing upon proximate cause are not in dispute and reasonable persons could not differ
about the application of the legal concept of proximate cause to those facts,” the issue is a
question of law for the court. Paddock v Tuscola & SB R Co, Inc, 225 Mich App 526, 537; 571
NW2d 564 (1997).
It is undisputed that plaintiff suffered from a preexisting shoulder condition at the time of
the accident. Plaintiff contends that aggravation of a preexisting condition is compensable. Our
Supreme Court has recognized that “recovery is allowed if the trauma caused by the accident
triggered symptoms from [a preexisting] condition.” Wilkinson v Lee, 463 Mich 388, 395; 617
NW2d 305 (2000).
Plaintiff’s torn rotator cuff injury was objectively manifested by both a pre-accident
ultrasound and a post-accident MRI. Plaintiff’s surgeon, Dr. Kyle Anderson, stated that the MRI
showed “progression of the tear” since the previous test before the accident and attributed that
progression to the accident. On the on hand, regardless of the size of the tear, the record displays
that corrective surgery had been both recommended and scheduled to repair the tear in plaintiff’s
shoulder before the accident occurred, but surgery had been deferred for reasons unrelated to the
accident. And, plaintiff ultimately endured the same surgery on her shoulder that she would
have endured had the accident not occurred. But, on the other hand, the fact remains that the
surgery itself once it was performed, the course of recovery, and the resulting restrictions may
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have been more extensive than they might have been had the accident and resulting injuries not
occurred. In other words, plaintiff may have had a speedier recovery, greater range of motion, or
fewer or no limitations on her activities had the accident not occurred. On this record, we
conclude that there are factual disputes concerning the nature and extent of plaintiff’s shoulder
injuries that are material to determining whether she has suffered a serious impairment of body
function, and as such the trial court may not decide the issue as a matter of law. Kreiner, supra
at 132. The trial court erred in concluding that plaintiff’s shoulder injury did not qualify as a
serious impairment of body function when these questions of fact remain. Because of the
existence of questions of fact relating to the extent of the aggravation of the pre-existing shoulder
injury caused by the accident, questions of causation are inherent. Therefore, the trial court erred
in concluding that the shoulder injury was not causally related to the accident.
These injuries are contested injuries and the nature and extent of that contest
these injuries taken in conjunction with her shoulder injury which the nature and extent of which
was for the trier of fact meand that the nat and edt of the injuries are in disute and the
B. Knee Injury
There is no dispute that plaintiff suffered an objectively manifested injury to her knee,
that being the meniscus tear shown by the MRI. However, that tear was first diagnosed in 2007,
three years after the accident. Plaintiff testified that her knee began to hurt right after the
accident, but there is no objective evidence of a knee injury that existed before 2007, and no
medical opinion linking the tear to the accident.
Plaintiff relies on an excerpt from Dr. Anderson’s February 13, 2007, letter as showing
the necessary causal connection. He stated that plaintiff “also presents with an additional
problem, that being her left knee. . . . She had injured the knee in the same accident, but with the
shoulder problem she really felt that she had to deal with that first.” However, because this
statement was included as part of plaintiff’s presenting symptoms and preceded the results from
the physical examination and Dr. Anderson’s diagnosis, it is apparent that the statement that
plaintiff had injured her knee in the accident was plaintiff’s own report as opposed to Dr.
Anderson’s medical opinion. In fact, Dr. Anderson went on to say that the meniscus tear was
degenerative (as opposed to traumatic) and Dr. Stephens was unable to attribute the injury to the
accident. Because the evidence did not create a genuine issue of fact regarding whether the knee
injury was causally related to the accident, the trial court did not err in concluding that it did not
qualify as a serious impairment of body function.
C. Back Injury
There is no dispute that plaintiff had objective evidence of an injury, that being bulging
discs and radiculopathy as shown by an MRI and EMG. While there is no evidence that these
objective findings were causally related to the injury, defendant did not dispute the causation
element and focused solely on plaintiff’s general ability to lead her normal life.
Plaintiff missed one week of work after the accident. All other time off work was
attributable to the knee surgery and the shoulder surgery and resulting restrictions. She received
regular chiropractic treatments and a course of physical therapy for her back and took pain
medication and muscle relaxants. Surgery had been discussed but had not been planned. Most
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of plaintiff’s restrictions related to the shoulder injury, although she was also medically restricted
from prolonged standing. Plaintiff no longer engaged in various activities such as yard work,
dancing, and vacuuming, and had cut back on other activities such as cooking and engaging in
sexual relations, due at least in part to her back pain, but there is no evidence that these
restrictions were medically imposed. Under the circumstances, the trial court did not err in
concluding that plaintiff’s back injury did not significantly affect her general ability to lead her
normal life.
Reversed and remanded. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Pat M. Donofrio
/s/ Karen M. Fort Hood
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