If this opini on indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

CICILY JOHNSON,

Plaintiff

- Appellant, UNPUBLISHED December 21, 2023

v No. 363012 Wayne Circuit Court SHARON MARIE GARDNER,

Defendant,

MSJ AUTOMOTIVE TRADINGS LLC, a/k/a MSJ AUTOMOTIVE TRADING LLC, LC No. 21

- 008464

- NI

Defendant

- Appellee

, and

MSJ AUTOMOTI VE INC,

Defendant.

Before: J ANSEN

, P .J., and C AVANAGH and G ADOLA , JJ.

P ER C URIAM

.

Plaintiff, Cicily Johnson, appeals as of right the July 22, 2022 order of the Wayne Circuit Court granting defendant, MSJ Automotive Tradings, LLC, summary disposition under MCR 2.116(C)(10). Plaintiff asserts the trial court erred when it held plaintiff had not presented sufficient evidence of a serious impairment of body function, as required by MCL 500.3135. We
affirm

.

I. FACTS

On July 16, 2018, plaintiff was driving on Livernois Avenue in Detroit when defendant
Sharon Gardner’s vehicle attempted a U

- turn and struck the front passenger side of plaintiff’s vehicle. Gardner’s vehicle was owned by defendant

- appellee MSJ Automotive Tradings, LLC (MSJ). Plaintiff struck her back on the seat of her vehicle during the collision. P laintiff complained of b ack pain to emergency responders so she was taken to the hospital by ambulance

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The emergency room doctor diagnosed plaintiff with muscle strain. She was given ibuprofen and released from the hospital the same day with instructions to treat with warm com presses and follow up with a sports medicine physician.

Three days later, plaintiff sought treatment for neck and back pain at NextGen Pain
Associates and Rehab. There, Dr. Griesser diagnosed plaintiff with chronic pain due to trauma, low back pain, an d pain in the thoracic spine. His assessment states, “In my professional opinion, it is my medical determination that the injuries sustained by the above named patient were a direct
result from the MVA that occurred on: 07162018.” Dr. Griesser restricted plaintiff from working, driving, and doing housework for one month. Plaintiff was also referred for physical therapy and

x

- rays of her spine.

Plaintiff attended physical therapy from July 23, 2018, to January, 2019. The physical therapy records indic ate diagnoses of cervicalgia (neck pain 1 ) , lumbago, and thoracic strain. To treat her back pain, plaintiff utilized a stationary bike, other machines, as well as hot and cold packs. Plaintiff returned to Dr. Griesser on August 9, 2018, with continuing co mplaints of back pain. Dr. Griesser’s notes indicate “mild stiffness... mid/lower...,” but most of his handwritten notes are illegible. Plaintiff was prescribed Naproxen and Lidoderm and again referred to physical therapy. Dr. Griesser restricted plaintiff from working, driving, and doing housework for another
month. Plaintiff continued to see Dr. Griesser once a month in September, October, and November, 2018, and twice in January 2019. The record from January 3 , 2019, indicates a new diagnosis of cervica lgia . After plaintiff’s last visit on January 30, 2019, Dr. Griesser allowed plaintiff to return to work but in a “sitting job only” and extended her driving and housework
restrictions for another month.

On September 24, 2018, plaintiff presented for MRIs of her cervical and thoracic spine. The cervical spine MRI was deemed “unremarkable” by the doctor; no fractures or bruises were discovered. The thoracic spine MRI revealed “[a]ltered signal intensity of the T12 vertebral body may represent mild deg enerative endplate changes or a small hemangioma 2 .” But the thoracic spine was “otherwise unremarkable.”

Plaintiff also attended therapy with psychologist Dr. Michael Katz

, but he passed away and
the location of his records is unknown. The only record presented from this provider was a bill from December 12, 2019, that listed plaintiff’s diagnoses of “[p] ost

- traumatic stress disorder

, chronic caused by motor vehicle accident” and “[ m ] ajor depressive disorder , recurrent, severe without [i llegible], caused by motor vehicle accident.”

1 The trial court defined cervicalgia as “neck pain” referencing this Court’s provided definition in
Al

- Mohsin v Davidson , unpublished per curiam opinion of the Court of Appeals, issued August 20, 2020 (Docket No. 350893), p 2 n 4.

2 During the hearing on defendant’s motion for summary disposition, defense counsel provided a
definition of “hemangioma” as a “small collection of blood vessels” that is “basically just a
vascular birthmark.”- 3

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Plaintiff was sixteen years old at the time of the accident. Plaintiff testified she was unable to drive or work after the accident due to the neck and back pain she experienced from driving and standing fo r long periods of time. Because the accident occurred during summer break, plaintiff did not miss any school. Following the accident, plaintiff’s mother assisted her with household
chores. Plaintiff began to experience two to three headaches per month f ollowing the accident.
She also self

- reported anxiety when driving and had trouble sleeping. Before the accident, plaintiff was on her high school track team. Plaintiff chose not to try out for the track team her senior year
due to the discomfort she fe lt in her neck and back after the accident.

In 2017, before the subject accident, plaintiff presented for an x

- ray of the spine to evaluate for scoliosis. The hospital records indicate plaintiff had a history of chest and back pain. The evaluating doc tor found plaintiff had “S

- shaped scoliosis of the thoracolumbar spine....” Following the subject accident, plaintiff had another x

- ray of the spine that showed plaintiff had
“stable scoliosis.”

Plaintiff filed her complaint on July 13, 2021, alleging fo ur counts : Count I

– Negligence against defendant Gardner; Count II

– Owner’s Liability against defendant MSJ; Count III

– Negligent Entrustment against defendant MSJ; and Count IV

– Respondeat Superior against
defendant MSJ. Defendant Gardner was dismiss ed as a party because plaintiff served the wrong
Sharon Gardner. Plaintiff alleged she suffered a serious impairment of a body function as a result
of the car accident.

Defendant MSJ filed its motion for summary disposition pursuant to MCR 2.116(C)(10) alleging plaintiff had not suffered a n impairment of a body function as a result of the accident

. Specifically, defendant asserted that the medical records did not establish an objectively manifested impairment because only plaintiff’s subjective complai nts of neck and back pain were documented. Further, defendant claimed plaintiff’s ability to lead her normal life had not been affected by the accident. Plaintiff countered that the abnormal signal at the T12 vertebrae , the diagnosis of cervicalgia , and plaintiff’s psychological diagnoses all constitute objective ly
manifested impairmen ts of a body function . In reply, defendant asserted the abnormal signal and cervicalgia were not objectively manifested impairments nor related to the subject accident.

De fendant further argued plaintiff had not presented any evidence that plaintiff’s psychological diagnoses affect a particular body function.

The trial court heard oral arguments on defendant’s motion on July 19, 2022. Plaintiff ’s
counsel cited to her dia gnosis of cervicalgia and the increased signal at T12 as objectively manifested impairments of a n important body function, but he conceded the rest of the medical
records noted only plaintiff’s subjective complaints of pain. The trial court granted defend ant summary disposition on the basis that plaintiff presented insufficient evidence of an objectively manifested impairment that is observable or perceivable from actual symptoms or conditions as required by McCormick v Carrier , 487 Mich 180, 193; 795 NW2d 517 (2010). The trial court found that “no reasonable jury could find that the evidence presented establishes the requirement under the first prong of McCormick

... . ” Thus, the trial court did not reach the issue whether plaintiff’s ability to lead her normal life was changed as a result of the accident. Plaintiff timely filed a motion for reconsideration. The trial court denied plaintiff’s motion without oral argu ment. Plaintiff appeals.- 4

- II. STANDARD OF REV IEW

This Court reviews de novo the trial court’s decision to grant or deny a motion for summary disposition. Meemic Ins Co v Fortson , 506 Mich 287, 296; 954 NW2d 115 (2020). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999). When reviewing a motion under (C)(10), the trial court must consider the affidavits, pleadings, depositions, and other evidence in the light most fa vorable to the nonmoving party. Id . The court is not permitted to assess credibility or determine facts on a motion for summary disposition. Skinner v Square D Co , 445 Mich 153, 161; 516 NW2d 475 (1994). “Instead, the court’s task is to review the reco rd evidence, and all reasonable inferences therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial. ” Id

. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the evidence
shows there is n o genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314 (1996).

Questions of statutory interpretation, construction, and application are also reviewed de

novo. Johnson v Johnson , 329 Mich App 110, 118; 940 NW2d 807 (2019). We review a trial
court’s decision on a motion for reconsideration for an abuse of discretion. Woods v SLB Property Management, LLC , 277 Mich App 622, 629; 750 NW2d 228 (2 008).

III. DISCUSSION

Plaintiff asserts the trial court erred in granting defendant’s motion for summary disposition because there is at least a question of fact as to whether plaintiff suffered a serious impairment of an important body function. Plain tiff argues the abnormal signal at the T12
vertebrate

, diagnosis of cervicalgia

, her psychological condition s , and muscle spasms all constitute objective finding s of impairments . However, Dr. Griesser’s finding of muscle spasms is supported only by his de position testimony

, which was not considered by the trial court because (1) it was produced for the first time with plaintiff’s motion for reconsideration, and (2) the deposition was taken in connection with plaintiff’s prior first

- party lawsuit against he r insurer. Because this deposition could have been introduced prior to the grant of summary disposition, as it was presumably within plaintiff’s knowledge, the trial court did not abuse its discretion by refusing to
consider this evidence for the first time on recons ideration. See Woods , 277 Mich App at 630 (“We find no abuse of discretion in denying a motion resting on a legal theory and facts which could have been pled or argued prior to the trial court’s original order.”) (citation omitted)

. Therefore, whether pl aintiff’s abnormal vertebrate signal, cervicalgia, and her psychological diagnoses constitute serious impairments of body functions are the only issue s on appeal.

The Michigan no

- fault insurance act limits tort liability for noneconomic damages to
instan ces in which the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement. MCL 500.3135(1). MCL 500.3135(2) provides:

(a) The issues of whether the injured person has suffered serious impairment of body f unction or permanent serious disfigurement are questions of law for the court if the court finds either of the following:- 5

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

(ii) There is a factual dispute concernin g 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....

“Under the plain language of the statute, 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.” McCormick v Carrier , 487 Mich 180, 193; 795 NW2d 517 (2010). Before determining the issue as a matter of law, a trial court must determine whether there is a material factual dispute regarding the nature and extent of the person’s injuries. Id . at 215. “[T]he disputed fact does not need to be outcome determinative in order to be material, but it should be significant or essential to the issue or matter at hand.” Id . at 194 (citation and quotatio n marks omitted).

If the trial court determines there is no material factual dispute, it must then determine if the plaintiff has met the liability threshold. The statute defines a “serious impairment of body function” as “an objectively manifested impa irment of an important body function that affects the person’s general ability to lead his or her normal life.” MCL 500.3135(5). Thus, there are three elements a plaintiff must prove to establish a serious impairment of body function: (1) an objectively manifested impairment, (2) of an important body function, (3) that affects the person’s general ability to lead her normal life. See McCormick , 487 Mich at 195 (discussing the prior version in MCL 500.3135(7). The analysis is fact

- specific and must be c onducted on a case

- by

- case basis.
Id . at 215.

As to the first element, an objectively manifested impairment is one that is “evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a b ody function.” McCormick , 487 Mich at 196. The aggravation of a preexisting condition can constitute a compensable injury under the no

- fault act. Fisher v Blankenship , 286 Mich App 54, 63; 777 NW2d 469 (2009). Plaintiffs must introduce evidence
establi shing that there is a physical basis for their subjective complaints of pain and suffering. Id

. quoting DiFranco v Pickard , 427 Mich 32, 74; 398 NW2d 896 (1986), superseded by statute as
stated in McCormick , 487 Mich at 191. If the court finds an objecti vely manifested impairment, the court must next determine whether the impaired body function is “important.” Id . at 198. This is a subjective inquiry that asks whether the body function is significant to the injured person. Id

. at 199. Lastly, the cour t must determine whether the impairment affects the person’s general ability
to lead his normal life. Id . at 200. This is another subjective inquiry that requires comparing the person’s life before and after the injury. Id . at 202. The person’s general ability to lead her normal life must only be affected, not destroyed. Id . “Thus, 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 per son is able to lead his or her pre

- incident normal life, the person's general ability to do so was nonetheless affected.” Id

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Here, the trial court did not err in deciding the issue whether plaintiff suffered a serious impairment of an important body f unction as a question of law. There was no factual dispute as to the nature and extent of plaintiff’s injuries. Plaintiff argues that her neck and back pain, as well as her psychological diagnoses, constitute objectively manifested impairments. Defendan t does not dispute that plaintiff has neck and back pain and psychological diagnoses, but argues that plaintiff’s neck and back pain and psychological diagnoses do not constitute objectively manifested impairments.

P laintiff has not shown that her diagn oses constitute objectively manifested impairments of important body functions. As to plaintiff’s diagnoses of PTSD and major depressive disorder,

p laintiff failed to show how these conditions impair a body function . Psychological conditions
such as PTSD and depression can constitute serious impairments of a body function. However, plaintiff has not produced any evidence to show how a body function has been affected by her PTSD and depression.

As to plaintiff’s neck and back pain, she argues that her diagnosis of cervicalgia and the abnormal vertebrae signal constitute objectively manifested impairments of an important body function. An objectively manifested impairment is one evidenced by actual symptoms or conditions that someone other than the inju red person would observe. McCormick , 487 Mich at 196. Plaintiffs must introduce evidence establishing that there is a physical basis for their subjective complaints of pain and suffering. Id . quoting DiFranco , 427 Mich at 74. Plaintiff was
examined at the hospital immediately following the accident and no tenderness was discovered. The hospital diagnosed plaintiff with “muscle strain,” gave her non

- prescription pain medication, and released her the same day. Plaintiff’s only diagnoses from Dr. Griesse r in the months following the accident were for pain: chronic pain due to trauma, low back pain, pain in thoracic spine, and cervicalgia

. Plaintiff asserts that these diagnoses constitute objective findings, however,
there is no physical basis noted in al l of the medical records provided that account for plaintiff’s subjective complaints of pain.

Plaintiff’s MRI results were “unremarkable” and did not show any acute injury as a result of the motor vehicle accident. While plaintiff is correct that the a bnormal signal at T12 shown in her MRI was an objective finding, the radiologist concluded this was due to “mild degenerative endplate changes or a small hemangioma.” “Degenerative” is defined as “of, relating to, involving, or causing degeneration” and “ degeneration” in biology is defined as “progressive deterioration of physical characters from a level representing the norm of earlier generations or forms.” 3 Thus, this can best be described as “deterioration.” During oral argument, the trial court reli ed on the Mayo Clinic definition of “hemangioma” put forth by defendant. Defense counsel read, “It’s a bright red birthmark that shows up at birth or in the first or second week of life...,” and added, “So it’s basically just a vascular birthmark.” The tri al court continued, “[a] hemangioma is made up of extra blood vessels that group together into a dense clump.” Degenerative changes and a

3 “Degenerative.” Merriam

- Webster.com Dictionary

, https://www.merriam

webster.com/dictionary/degenerative#dictionary

- entry

- 1 (accessed November 28, 2023); “Degeneration .” Merriam

- Webster.com Dictionary

, https://www.merriam

webster.com/dictionary/degeneration (accessed November 28, 2023).- 7

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hemangioma are not acute impairments as evidenced by the radiologist’s note that “[t]here is no
acute fracture or bon e bruise/bone marrow edema.” Thus, the objective testing failed to identify any abnormality that accounts for plaintiff’s subjective complaints of pain.

Further, Dr. Griesser’s conclusion that “the injuries sustained by the above named patient
were a di rect result from the [motor vehicle accident]” is not helpful because he does not identify any injuries other than plaintiff’s subjective complaints of pain. Any objective findings noted by Dr. Griesser in his deposition testimony cannot be considered bec ause the deposition was taken in connection with a prior lawsuit against plaintiff’s insurer to which defendant MSJ was not a party. The evidence presented in the form of medical records lacks any notation of objective findings, thus, the trial court did not err in finding no factual dispute as to the nature and extent of plaintiff’s injuries.

The trial court did not err when it found the evidence insufficient to establish an objectively manifested impairment. Because plaintiff cannot establish an objectively manifested impairment, the trial court did not have to consider whether the impairment affected plaintiff’s general ability to lead her normal life. Therefore, the trial court did not err in granting defendant summary disposition.

Affirmed.

/s/ Kathleen Jansen /s/ Mark J. Cavanagh
/s/ Michael F. Gadola