REBECCA DENNISE FISCHER V RONALD ALLAN NEAL
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STATE OF MICHIGAN
COURT OF APPEALS
REBECCA DENNISE FISCHER,
UNPUBLISHED
May 10, 2011
Plaintiff-Appellant,
v
No. 295282
Chippewa Circuit Court
LC No. 08-009807-NI
RONALD ALLAN NEAL and
JEAN ANN NEAL,
Defendants-Appellees.
Before: RONAYNE KRAUSE, P. J., and SERVITTO and GLEICHER, JJ.
PER CURIAM.
In this automobile negligence case, plaintiff Rebecca Dennise Fischer appeals as of right
a circuit court order granting summary disposition to defendants Ronald Allan Neal and Jean
Ann Neal. Because material questions of fact exist regarding the nature and extent of Fischer’s
injuries, we reverse the circuit court’s order and remand for further proceedings.
Fischer and Ronald Neal1 had an automobile accident on January 30, 2006. Fischer
maintains that that the accident caused her to experience a condition called reflex sympathetic
dystrophy (RSD), and she filed a complaint seeking to recover medical expenses and lost wages
she had incurred arising from the accident. Following discovery, Neal moved for summary
disposition pursuant to MCR 2.116(C)(10) on the ground that Fischer had failed show a serious
impairment of body function as required by MCL 500.3135(1) and (7). Neal emphasized that
Fischer had not sought medical attention until approximately five hours after the accident, and
that her medical records prior to January 30, 2006 suggested preexisting conditions for which she
had engaged in “drug-seeking behavior.” The exhibits attached to Neal’s brief included
deposition testimony from Dr. David Gast, who opined that Fischer had not sustained any
injuries during the January 2006 accident.
1
The singular “Neal” will hereinafter refer to Ronald Neal.
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Fischer, acting in propria persona, responded by filing a brief attaching several medical
records generated by Dr. John P. Ockenfels. The first, dated February 16, 2006, states in
relevant part:
Unfortunately, this young lady was in a motor vehicle accident, but she
was seatbelted, and is presently having a significant amount of back pain and
muscle pain. She has a swollen left neck, which is surprisingly large compared to
the right side. As well, she is now having problems with hand discomfort.
In a second record created in November 2006, Dr. Ockenfels described Fischer’s condition as
follows:
This is a 37-year-old white female who presents with increasing pain and
discomfort of her right arm and hand going numb. She has been recently seen by
Dr. ____, a psychiatrist who decreased essentially by half her narcotics and as
such although she is trying to follow suit with his request and suggestions, she can
no longer tolerate the pain or discomfort. She presents in quite severe pain using
a cane to the opposite hand and cradling her arm. She has significant pain and
discomfort compared to previous examination of same patient, earlier this month
by myself where she actually was getting use out of her hand and the pain was
just localized to her shoulder whereas the pain had been released [sic]
significantly from the hand. Now it is back to where it was and in fact it is getting
worse she states . . . .
Dr. Ockenfel’s “assessment” of Fischer’s condition included “[r]eflex sympathetic dystrophy
with increasing pain and discomfort, as well as paresthesia.”
Fischer also filed with the circuit court the following pertinent deposition testimony of
Dr. Ockenfels:
Q. Okay. The injuries [sic] she sustained in the automobile accident was
RSD—correct?—the primary injury?
A. I’m sorry?
Q. The primary injury she sustained in the automobile accident was RSD;
correct?
A. It has become that, yes.
Q. And in your opinion was it caused by the car accident?
A. It appears to be, yes.
Q. And what types of limitations does she have because of her RSD?
A. Well, certainly she has pretty much severe limitations of use of that
shoulder and the arm, because she can’t put any pressure on it. Can’t have a lot of
things—I mean, she no longer wears a bra because of it. She can’t even stand a
bra, so certainly anything can cause pain associated with that, so she has
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limitation as far as that is concerned, decreased grip strength, so basically she
can’t even use the right arm pretty much anymore.
Q. And would that affect her ability to do chores around the house?
A. Absolutely.
Q. Do you believe that she would need assistance in doing those chores
around the house?
A. In order to keep the house up . . . yeah, I do.
Q. Now, I believe that—let me ask you this: We talked earlier, Doctor,
about objective manifestations of RSD and I believe you said there was a color
difference?
A. Yeah, you start getting a color difference. You can get a sheen
associated with it or, you know, when it goes into the other degrees of RSD.
Q. Okay. Is that present with Rebecca Fischer?[2]
In granting Neal’s motion for summary disposition, the circuit court applied the defunct
standard set forth in Kreiner v Fischer, 471 Mich 109, 130-134; 683 NW2d 611 (2004), rev’d in
McCormick v Carrier, 487 Mich 180; ___ NW2d ___ (2010), finding that Fischer had not
established that that her accident-related injuries qualified as objectively manifested or that her
impairment affected her general ability to lead her normal life. In a bench opinion, the circuit
court reasoned:
[T]here has been no objectively manifested impairment, medically
identifiable injury or condition of a physical basis. So, I mean, understanding that
is a medically identifiable injury or condition that has a physical basis. So if the
Court finds that an important body function has been impaired, the impairment
2
Dr. Ockenfels’s answer to the final question, “She’s starting to have color change and some
changes, yes[,]” is not contained in the circuit court record. Fischer included this page as an
exhibit to her brief on appeal. We note that on appeal, both parties have submitted medical
records and deposition testimony shedding additional light on their arguments, which does not
appear in the circuit court record. Generally, “[w]hen reviewing a decision on a motion for
summary disposition, this Court will not consider evidence that had not been submitted to the
lower court at the time the motion was decided.” In re Rudell Estate, 286 Mich App 391, 405;
780 NW2d 884 (2009). The additional, relevant information confirms the existence of
significant factual disputes regarding whether Fischer has sustained a serious impairment of body
function. However, the substance of the additional, improperly submitted material on appeal has
played no role in our decision.
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has to be objectively manifested and it has to be determined whether the
impairment has limited your ability to lead a normal life. That is the step process.
***
But in this case, I can’t say that you have an objectively manifested injury
because there is nothing except your complaints, your subjective complaints,
about pain in your arm and pain in your neck. There is only Dr. Ockenfels,
maybe Dr. Sing, who has indicated anything other than that. We have no x-rays,
CT scans, MRI’s. Even Dr. Ockenfels did not, in the emergency room did not
find anything in that regard. As a matter of fact, all the neurological exams,
motor exams, were normal. They couldn’t see anything objectively manifested
causing the right arm and neck pain.
***
. . . [E]ven Dr. Ockenfels, like I say, hasn’t really found anything.
Understanding, I don’t mean, I don’t think there is any question you have pain
with regard to your neck and with regard to your arm, but they cannot pinpoint
anything causing that.
You say you quit your job voluntarily and I believe you have, so you
thought you couldn’t work, but no doctor has said to you that you have this
objectively manifested problem and you cannot work any longer. So we don’t
even have that. We just have you saying I have pain and I can’t work. I just
voluntarily quit. You haven’t worked for several years.
***
I know you said that you have got this neck and shoulder pain and it is
sore and worsened after this accident, but nothing has been done to correct it
except offer you pain medications. So I realize you are saying your life is
different now, but there is nothing here that suggests that except for you saying it
is something that interferes with your normal life. . . .
We review de novo the circuit court’s summary disposition ruling. Walsh v Taylor, 263
Mich App 618, 621; 689 NW2d 506 (2004). “In reviewing a motion under MCR 2.116(C)(10),
this Court considers the pleadings, admissions, affidavits, and other relevant documentary
evidence of record in the light most favorable to the nonmoving party to determine whether any
genuine issue of material fact exists to warrant a trial.” Id.
The no-fault act, MCL 500.3101 et seq., subjects a person “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.” MCL 500.3135(1). A “serious impairment of body function” constitutes “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).
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In Kreiner, 471 Mich at 130-134, the Michigan Supreme Court articulated a multistep
process to guide a trial court’s consideration whether a plaintiff has sustained a threshold injury.
The trial court must first review whether a factual dispute exists concerning the nature and extent
of the plaintiff’s injuries. If there is no dispute, or if a dispute exists that is immaterial to
whether a plaintiff has endured a serious impairment of a body function, the court must
determine whether “an ‘important body function’ of the plaintiff has been impaired.” Id. at 131132. To merit further inquiry, a court has to find both that “an important body function has in
fact been impaired,” and that the impairment qualifies as objectively manifested. Id. at 132. A
plaintiff who has sustained an objectively manifested impairment of an important body function
must also show that the impairment affects his or her general ability to lead a normal life. Id.
“In determining whether the course of the plaintiff’s normal life has been affected, a court should
engage in a multifaceted inquiry, comparing the plaintiff’s life before and after the accident as
well as the significance of any affected aspects on the course of the plaintiff’s overall life.” Id. at
132-133. This analysis must be followed by an objective determination “whether any difference
between the plaintiff’s pre-and post-accident lifestyle has actually affected the plaintiff’s
‘general ability’ to conduct the course of his life.” Id. at 133. The Kreiner Court summarized
that “[a]lthough some aspects of a plaintiff’s entire normal life may be interrupted by the
impairment, if, despite those impingements, the course or trajectory of the plaintiff’s normal life
has not been affected, then the plaintiff’s ‘general ability’ to lead his normal life has not been
affected.” Id. at 131.
On July 31, 2010, the Michigan Supreme Court decided McCormick, 487 Mich at 184,
which overruled the interpretation of MCL 500.3135 in Kreiner, 471 Mich 109. McCormick
announced a new standard for evaluating whether the injuries sustained by a third-party no-fault
claimant meet the statutory threshold of serious impairment. McCormick instructs that “the
threshold question whether the person has suffered a serious impairment of body function should
be determined by the court as a matter of law as long as there is no factual dispute regarding ‘the
nature and extent of the person’s injuries’ that is material to determining whether the threshold
standards are met.” 487 Mich at 193, quoting MCL 500.3135(2)(a)(i). A three-pronged analysis
dictates whether a plaintiff has established a serious impairment of body function. Id. at 215. A
plaintiff must show
(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). [Id.]
The Supreme Court elaborated in McCormick, 487 Mich at 196, that “the common
meaning of ‘objectively manifested’ in MCL 500.3135(7) is 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.” Id. at 196. The Supreme Court further explained that
“an ‘objectively manifested’ impairment is commonly understood as one observable or
perceivable from actual symptoms or conditions.” Id. When evaluating whether a plaintiff’s
injuries have affected the person’s general ability to lead his or her normal life, the Supreme
Court instructed that “courts should consider not only whether the impairment has led the person
to completely cease a pre-incident activity or lifestyle element, but also whether, although a
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person is able to lead his or her pre-incident normal life, the person’s general ability to do so was
nonetheless affected.” Id. at 202. The plaintiff need only produce evidence
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. Thus, while the extent to which a person’s general ability to live
his or her normal life is affected by an impairment is undoubtedly related to what
the person’s normal manner of living is, there is no quantitative minimum as to
the percentage of a person’s normal manner of living that must be affected. [Id. at
202-203 (emphasis in original).]
“The serious impairment analysis is inherently fact- and circumstance-specific and must be
conducted on a case-by-case basis.” Id. at 215.
Applying the legal principles elucidated in McCormick leads us to conclude that a factual
dispute exists concerning “‘the nature and extent of the person’s injuries’ that is material to
determining whether the threshold standards are met.” McCormick, 487 Mich at 193, quoting
MCL 500.3135(2)(a)(i). The parties vigorously dispute the facts surrounding the nature and
extent of Fischer’s injuries and whether she suffered any injury at all attributable to the January
2006 car accident. The parties further contest whether Fischer’s injuries, if any, have affected
her general ability to lead her preincident normal life. Because the disputed facts are essential to
the issue whether Fischer has met the serious impairment threshold, the circuit court erred by
deciding this question as a matter of law. Id. at 193-194. Accordingly, we reverse the circuit
court’s order granting summary disposition to defendants.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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