If this opinion 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

SERENA ROBINSON,

Plaintiff-Appellant,

UNPUBLISHED

November 9, 2023

v No. 364047

Ingham Circuit Court

FARM BUREAU GENERAL INSURANCE 

COMPANY OF MICHIGAN,

LC No. 21-000022-NI

Defendant,

and

THAKER AZEEZ,

Defendant-Appellee.

Before: GLEICHER, P.J., and JANSEN and RICK, JJ.

JANSEN, J. (dissenting).

For the following reasons, I respectfully dissent. I would affirm summary disposition in 

favor of defendant because plaintiff failed to meet the threshold injury of a serious impairment of 

a body function under MCL 500.3135 to recover noneconomic damages on her third-party tort 

claim. 

A party may file a third-party tort claim for noneconomic damages, such as pain and 

suffering or emotional distress, resulting from an automobile accident under MCL 500.3135(1) of 

the no-fault act, MCL 500.3101 et seq., if the person has suffered “death, serious impairment of 

body function, or permanent serious disfigurement.” The threshold question “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), citing MCL 

500.3135(2)(a) (quotation marks omitted). A fact is material to the matter when it is “significant 

or essential,” even if not necessarily outcome-determinative. Id. at 194 (quotation marks and 

citation omitted). To establish a serious impairment of body function, the plaintiff must show “
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‘(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.’ ” Patrick v Turkelson, 322 Mich App 595, 

606; 913 NW2d 369 (2018), quoting McCormick, 487 Mich at 195. See also MCL 500.3135(5). 

“Objectively manifested” means “it is observable or perceivable from actual symptoms or 

conditions by someone other than the injured person.” MCL 500.3135(5)(a). A showing of an 

objectively manifested impairment requires evidence, often medical testimony, that establishes a 

physical basis for the plaintiff’s subjective complaints of pain and suffering. Patrick, 332 Mich 

App at 607. An impairment affects a person’s general ability to lead his or her normal life when 

it has had an influence on some of the person’s capacity to live in his or her normal 

manner of living. Although temporal considerations may be relevant, there is no 

temporal requirement for how long an impairment must last. This examination is 

inherently fact and circumstance specific to each injured person, must be conducted 

on a case-by-case basis, and requires comparison of the injured person’s life before 

and after the incident. [MCL 500.3135(5)(c).] 

Plaintiff alleges that she suffered injuries to her back, neck, and right knee as a result of 

the accident. The parties dispute whether any injury was “objectively manifested” to meet the first 

prong of the test for a threshold injury. Patrick, 322 Mich App at 606. In granting defendant 

summary disposition, the trial court concluded that there was no objectively manifested 

impairment. I would agree.

Plaintiff testified that she had no history of back, neck, or knee pain (besides scoliosis) 

before the accident or any history of headaches. Her medical records are to the contrary, 

demonstrating an extensive preaccident medical history. In 2005, she reported having lower back 

pain for one to two years, scoliosis, and obesity. In 2006, she reported to the emergency room for 

headaches. In a 2009 new patient visit, she reported having scoliosis with chronic back pain and 

migraines. In June 2015, she reported having right knee pain after it “gave out” while walking; 

she was diagnosed with a knee sprain. A few weeks later, x-rays showed mild degenerative 

changes of her right knee, she was diagnosed with a possible torn medial meniscus, and was 

restricted from working for two weeks. In August 2015, she had an injection treatment for back 

pain and muscle spasms in her back. At the end of 2015, she was seen for thoracic spine pain at 

the emergency room and prescribed muscle relaxers, an anti-inflammatory, and a topical gel for 

pain. In 2016, she was again seen for low back pain and reported migraines dating back to 2010. 

In February 2018, she reported pain in her back, arms, and neck, aggravated by her job 

driving a bus. She was excused from work several times in May 2018, with CT scans showing 

arthritic changes in her spine and a diagnosis of lumbar degenerative disc disease. In 2019, her 

medical records indicate that she still complained of back pain, neck stiffness, and headaches. In 

early 2020, she presented with the same complaints, and was diagnosed with a probable partial 

ACL disruption in her right knee. 

Plaintiff did not seek medical care until the day after the accident, August 19, 2020, when 

she went to an urgent care and reported neck pain and stiffness, back pain, and headaches. She 

was told to follow up with her primary care physician if she did not improve, and to take a muscle 

relaxant and Tylenol. The imaging of her spine taken that day had no significant findings besides 

mild scoliosis. When she followed up with her physician, she requested a referral for pain 
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management and physical therapy because her prescription pain medication was not working for 

her back and made her too drowsy. In September 2020, her x-ray results for her knee and spine 

were “grossly normal except for findings of suggestive muscle spasms.” 

In November 2020 and early 2021, MRIs of her spine showed small disc bulges and mild 

facet osteoarthritis. Throughout 2021, based on more MRIs, she was continually diagnosed with 

mild degenerative changes of her thoracic spine and chronic midline lower back pain. She was 

treated with several injections and a rhizotomy with radiofrequency ablation, as well as osteopathic 

manipulation medicine. She was excused from work from the date of the accident up to April 26, 

2022. 

The majority opinion ignores plaintiff’sindependent medical examination by Dr. Randolph 

B. Russo, who upon reviewing plaintiff’s medical history, concluded that there was no evidence 

of an ongoing medical condition related to the subject accident. There was no indication for any 

continued treatment related to the accident, and no reason for plaintiff not to resume normal 

activities without limitations. He concluded that “[a] transient increase in her chronic low back 

pain can occur. Some soft tissue thoracic pain is not uncommon, but would resolve rather quickly. 

The contusion to her knees also is not associated with a pathologic change in the knees that requires 

more aggressive medical treatment.” Dr. Russo also attested that plaintiff was not suffering from 

any ongoing medical condition related to the accident—at most she sustained a temporary strain 

of her back or neck that would have resolved shortly thereafter, which would be secondary to her 

longstanding degenerative issues. He also attested that none of plaintiff’s treating physicians 

directly attributed her subjective complaints of pain or injuries to the accident. 

Plaintiff failed to produce any objective evidence by any of her medical providers that 

connected her injuries to the subject accident. The medical records solely indicate her subjective 

complaints of pain that she attributed to the accident. “Although mere subjective complaints of 

pain and suffering are insufficient to show impairment, evidence of a physical basis for that pain 

and suffering may be introduced to show that the impairment is objectively manifested. Medical 

testimony is generally, but not always, required to make this showing.” Patrick, 322 Mich App 

at 607 (citation omitted). Plaintiff produced no affidavit or testimony by any of her medical 

providers or any expert attributing her injuries to the accident. Rather, her medical history 

demonstrates that she had chronic pain and degenerative changes for years before the accident 

occurred. Although “the aggravation or triggering of a preexisting condition can constitute a 

compensable injury,” Fisher v Blankenship, 286 Mich App 54, 63; 777 NW2d 469 (2009), plaintiff 

denied having any preexisting back, neck, or knee pain at her deposition, testifying that she had 

no chronic illnesses, even though her medical records were to the contrary. Moreover, plaintiff 

produced no evidence that any of her medical providers concluded that the accident aggravated 

any preexisting condition. Therefore, there is no genuine issue of material fact that plaintiff’s 

injuries were not objectively manifested, and she cannot meet the first prong of the McCormick

threshold injury test. Therefore, I would conclude that the trial court properly granted defendant 

summary disposition under MCR 2.116(C)(10). 

/s/ Kathleen Jansen