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### STATE OF MICHIGAN

COURT OF APPEALS

JACK E. POULSEN,

Plaintiff-Appellant, UNPUBLISHED June 8, 2017

v No. 331925

Kalamazoo Circuit Court SHANNON M. VISSER, LC No. 2014-000625-NI

Defendant-Appellee,

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Defendant-Appellee.

Before: B ECKERING , P.J., and M ARKEY and S HAPIRO , JJ.

P ER C URIAM

.

This case concerns plaintiff’s claim for first-party no-fault benefits against State Farm and third-party tort claim against Visser. State Farm was plai ntiff’s no-fault insurer on December 11, 2013 when plaintiff was rear-ended by Visser while he was waiting to make a right turn at an intersection. V isser moved for summary dispos ition against plaint iff alleging that he had failed to present sufficient evidence to create a genuin e issue of material fact that he sustained a threshold injury. However, the trial court granted Visser’s motion, not on the basis that plaintiff had failed to pre sent evidence of a threshold in jury, but on the bas is that plaintiff had failed to present sufficient evidence that his injuries wer e caused by the motor vehicle accident. This ruling prompted State Farm to then move for sum mary disposition on plaintiff’s first party claim, which the trial court granted relying substa ntially on the findings in its previous decision granting Visser summary disposition. Plaintiff now ap peals as of right . We reverse.

Plaintiff’s first party claim arises out of statute. Atkins v Suburban Mobility Auth for Regional Transp , 492 Mich 707, 718; 822 NW2d 522 (2012). The statute entitles plaintiff to benefits “for accidental bodily injury arising out of the owner ship, operation, maintenance or use of a motor vehicle as a motor vehicle.” MCL 500.3105(1). The “causal connection between the injury and the use of a motor vehicle” must be “more than incid ental fortuitous, or ‘but for.’ ”

Thornton v Allstate Ins Co , 425 Mich 643, 659; 391 NW2d 320 (1986). State Farm initially paid-2- benefits to plaintiff, but on December 9, 2014 it sent plaintif f a letter stating that it would “deny further personal injury protection benefits for cervical strain effective October 30, 2014 and concussion/TBI, L. Knee Strain, and Thoracic Strain effective A pril 3, 2014.” Therefore, the issue regarding plaintiff’s first party claim is whether any ce rvical injuries he experienced after October 30, 2014 and any knee or t horacic injuries he experienc ed after April 3, 2014 arose out

of the motor vehicle accident.

Plaintiff’s third party claim is a tort claim, Atkins , 492 Mich at 718, which, includes the requirement of causation, Mick v Kent Co Sheriff’s Dept , 494 Mich 367, 390; 835 NW2d 545 (2013). Generally, a defendant’s claim that the crash is not a proximate cause of plaintiff’s limitations is one, like nearly all proximate cause questions, that is for the trier of fact to

determine. See Nichols v Dobler , 253 Mich App 530, 532; 655 NW2d 787 (2002) (stating that proximate cause is generally a fa ctual issue). Only, “if reaso nable minds could not differ regarding the proximate cause of the plaintiff’s injury” should the court decide the issue as a

matter of law.” Id

.

The initial burden of production on a motion for summary dispo sition is on the moving party, and this burden can be satisfied by demonstrating to the court either that the nonmoving party’s evidence is insufficient to establish a question of fac t on its claims or by submitting “ ‘affirmative evidence that negates an essential element of the nonmoving party’s claim.’ ”
Quinto v Cross & Peters Co , 451 Mich 358, 361-362; 547 NW2d 314 (1996), quoting Celotex v

Catrett , 477 US 317, 331; 106 S Ct 2548; 91 L Ed 2d 265 (1986). The b urden does not shift to the non-moving party until the moving party has first met its b urden. Id. and Skinner v Square D

Co , 445 Mich 153, 160; 516 NW2d 475 (1994). Neither defendant ap pears to allege that plaintiff’s evidence is insufficient on its own to establish a question of fact on the issue of whether his injuries were caused by or arose out of the motor v ehicle accident. Rather both

defendants and the trial court rely heavily on an accident reco nstruction report prepared by State Farm and on reports from State Farm’s medical examiners. The trial court determined these documents negated the essential element of cau sation on both pl aintiff’s first party no-fault claim and its third party tort claim and that because plaintiff did n ot present any evidence rebutting

these documents both defendants were entitled to summary dispos ition.

However, neither the accident reconstruction reports nor the r eports submitted by State Farm’s medical examiners preclude the existence of an issue of material fact on the issue of causation, and so they do not negate an essential element of pl aintiff’s claim. State Farm’s medical examiner, Dr. Zafar, re ported in September 2014, three months before suit was filed that “given the chronology, description of events and symptoms, it i s likely that the motor vehicle accident resulted in a whiplash, post-concussive syndrome.” Za far stated that “the current symptomatology of headaches, ne ck pain, and cognitive issues ma y be considered to cause a temporary impairment as a result of the December 11, 2013 accid ent.” State Farm then hired a company that prepares accident reconstruction reports. However , contrary to the claims of defendants and the trial court, the accident reconstruction rep ort did not say anything about the cause of plaintiff’s injuries. It merely concluded that “the f orces and motions experienced by [plaintiff] were minimal and consistent with simple, routine ph ysical tasks.” Whether these forces resulted in an injury to plaintiff is a medical question , not an engineering one. The report did not preclude a finding that minimal forces consistent with simple, routine physical tasks could have caused plaintiff’s in juries. Even after reviewing t he engineering report, all Zafar was-3- able to state is that if the report’s conclusions were accepted , it would be “difficult” to correlate plaintiff’s injuries to the accident and that it was “questionable” whether the low degree of impact could cause an “ongoing clinical impairment.” None of t hese conclusions remove the possibility that plaintiff had some injuries that were caused b y the motor vehicle accident. Therefore, plaintiff did not have an affirmative duty to rebut their conclusions in order to survive

defendants’ motions for summar y disposition on the issue of cau sation.

Concerning plaintiff’s first part y claim, State Farm also reli es on two reports prepared by its orthopedic experts. The first expert, Dr. Burkhardt, opine d that plaintiff had “cervical strain, left knee contusion, myofascial pain, closed head injury/concus sion” that “was caused by this accident” but in Burkhardt’s opinion plaintiff “has reached pre -injury status.” Burkhardt concluded that plaintiff’s injuri es had resolved, but he agreed that plaintiff was injured in the accident. Therefore, while Burkhardt’s report is affirmative e vidence that plaintiff was required to rebut to prevail against Stat e Farm’s motion, the report act ually supports plaintiff’s position in its third party claim against Visser. Similarly, the second or thopedic expert, Dr. Schneeberger, found that plaintiff had left kn ee strain/sprain, lumbar and th oracic strains and sprains, cervical strain and sprain, and a history of traumatic brain injury and that his condition was caused by the December 11, 2013 accident. Schneeberger then concluded that “ the strain and sprain of the left knee, strain and sprain of the thoracic and cervical spine” wou ld have temporarily impaired plaintiff “for four to six months, after which time he would ha ve reached maximum medical improvement.” As with Burkhardt’ s report, this report was affi rmative evidence that plaintiff was required to rebut to survive State Farm’s motion, but the r eport supports plaintiff’s position

on the issue of causati on in his third party t ort claim against Visser.

Plaintiff submitted evidence that his injuries had not resolve d to rebut the conclusions of State Farm’s orthopedic experts. His primary physician, Dr. Ho uchin, wrote a le tter in August of 2014 stating that plaintiff’s nec k, shoulder, and occipital pai n began immediately following the accident and that while plaintiff had preexisting knee pain, it was exacerbated by the accident. Plaintiff was required to under go physical therapy where his th erapist noted spasms, muscle pain, and limited cervical range of motion in various examinati ons in the months immediately succeeding the accident. It was established by documentary evi dence that Houchin excused plaintiff from work on account of his injuries for nearly an en tire year after the accident. In April of 2014 plaintiff’s headaches and neck pain were document ed by physical therapists and by Houchin. In May of 2014 plainti ff’s occipital nerve problems a nd myofascial muscle pain began to be diagnosed on a consistent b asis. A rational trier of fac t could construe the early notations of plaintiff’s muscle spasms in December 2013 and January 2014 as a symptom or precursor to the myofascial muscle pain t hat began being diagnosed on a regu lar basis in the spring of 2014.

Based on plaintiff’s medical r ecords from his own treating phy sicians, a rational trier of fact could conclude that contrary to the conclusions of State F arm’s orthopedic examiners, plaintiff continued to experien ce both knee and thoracic injuri es that arose out of the motor vehicle accident after April of 2014 and that he continued to e xperience cervical injuries as a

result of the motor vehicle accid ent after October of 2014. Ne ither defendant presented unrebutted evidence that definitively negated an essential elem ent of either plaintiff’s first party no-fault claim or his third party tort claim on the issue of ca usation. Therefore, we reverse the trial court’s orders granting de fendants summary disposition.-4- Additionally, although the trial court did not rule on whether plaintiff had presented sufficient evidence of a threshold injury to survive Visser’s m otion for summary disposition, because the issue was raised by plaintiff at both the trial cou rt and on appeal, we address the issue and determine that plaintiff did present sufficient evide nce to survive Visser’s motion on

this basis as well. 1 The No-Fault Act, MCL 500.3101 et seq , limits third party tort liability for noneconomic loss caused by “ownership, maintenance, or use of a motor vehicle” to situations in which “the injured person has suffered death, serious impairmen t of body function, or permanent serious disfigurement.” MCL 500.3135(1). The elements of a se rious impairment of body function are (1) an objectively manifested impairment, i.e., “o ne observable or perceivable from actual symptoms or conditions,” (2) the impairment affected an important body function, i.e., a body function that has great value, significance, or consequenc e to the person affected, and (3) the impairment of the body functio n affected the person’s gener al ability to lead her normal life.

McCormick v Carrier , 487 Mich 180, 195-196, 199; 795 NW2d 517 (2010).

In interpreting the first prong, “an objectively manifested im pairment,” the Supreme Court has held that an “ ‘objectiv ely manifested’ impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.” McCormick , 487 Mich at 196. The focus must be on “how injuries affected a particular body f unction.” Id. “[P]laintiffs must ‘introduce evidence establishing that there is a physical basis for their subjective complaints of pain and suffering.’ ” Id . at 198 quoting DiFranco v Pickard , 427 Mich 32, 74; 398 NW2d 896 (1986). “[S]howing an impairment generally requires medical te stimony.” Id. at 198.

Plaintiff relies heavily on the fact that various medical exam iners noted muscle spasms, swelling or tenderness on his knee, and trigger points in vario us medical records. These are conditions that have been recogn ized as satisfying the objectiv e manifestation requirement.

Guerrero v Smith , 280 Mich App 647, 663-664; 761 NW2d 723 (2008) (finding that “[t]his Court has observed that muscle spasms . . . may qualify as obje ctive manifestations”). Additionally, there was medical documentation from plaintiff’s treating physicians of how his injuries affected particular body functions. A CT scan taken t he day of the injury did show mild disc bulges. His physical therapy notes from December 31, 2013 state that he was having difficulty walking, had decrea sed range of motion, and had diff iculty getting into his car. Similar findings were documented by his physical therapist in notes dat ed January 15, 2014. Physical therapy notes in March of 2014 noted that while his cervical ra nge of motion was increasing it was still limited, and plaintiff needed “a lot of cuing for cor rect performance of neck exercises.” Plaintiff’s primary care physicia n also determined that he shou ld be disabled from working for nearly all of 2014. Even the medical examiner hired by State F arm, Zafar, concluded that the accident could have caused whiplash resulting in mechanical str ain and that plaintiff suffered a temporary impairment as a result of the accident. This evidenc e leaves open a question of fact

on the first McCormick prong of whether plaintiff established an objectively manifest ed impairment. See Abir Chouman v Home Owners Ins Co , 293 Mich App 434, 442-445; 810

1 Even when an issue is not addres sed by the trial court if the issue is raised before it then that issue is properly preserved for appellate review. Loutts v Loutts , 298 Mich App 21, 23-24; 826 NW2d 152 (2012).-5- NW2d 88 (2011) (finding that when the plaintiff’s physician fou nd “muscle spasms, pain, numbness, and restricted range o f motion” and that when the pla intiff had a bulgi ng disc that was shown in medical imaging there wa s a genuine factual dispute on whether the plaintiff suffered an objectively manifested impairment”). 2

The second McCormick prong of whether the objectively manifested impairment is of a n important body function is “an inhere ntly subjective inquiry” b ecause “[w]hether a body function has great ‘value,’ ‘significance,’ or ‘consequence’ will vary d epending on the person.”

McCormick , 487 Mich at 199. However, “the spine is an extremely importa nt part of every person’s body.” Abir Chouman , 293 Mich App at 444. Therefore, the disc bulges and evidence of limited cervical mobility constitute impairments of an impor tant body function. Additionally, physical therapy records stating that plaintiff used to walk tw o miles a day prior to the accident and his deposition testimony that his pre-acciden t lifestyle in cluded taking out the dogs, taking out the trash, and vacuuming show that his knee, a body functio n critical to all those activities, was an important body function to him.

With regards to the final prong on whether the impairment affe cted plaintiff’s ability to lead his normal life, the inquiry is whether the impairment had “an influence on some of [plaintiff’s] capacity to live in [his] normal manner of living .” McCormick , 487 Mich at 202. The determination “requires a subjective, person- and fact-spec ific inquiry that must be decided on a case-by-case basis.” Id. Plaintiff does not need to show that the impairment caused hi m to completely cease a pre-accident lifestyle but simply that some of his ability to live in his normal manner of living has been affected. Id. at 202-203.

Plaintiff’s physical therapy reco rds show that after the accid ent he was unable to walk his usual two miles and that getting into his vehicle was more pain ful. The physical therapy notes also state that due to the injuries, plaintiff avoids stairs an d slippery or uneven surfaces and that his pain increases if he sits for long periods of time. Plaint iff testified at his deposition that he works in real estate. Being unable to sit for long periods of time would undoubtedly affect his ability to function at his real estate work. His doctor disabl ed him from working for most all of

2014. There was sufficient eviden ce to create a genuine issue of material fact regarding whether some of plaintiff’s ability to live in his normal manner of liv ing before the accident was affected as a result of injuries sustained in the December 2013 accident

.

2 In Abir Chouman , the defendant-insurer had appeal ed the trial court’s grant of a directed verdict to plaintiff. This Court reversed because defendant pr esented testimony from its own physician whose conclusions differed from those of plaintiff’s physician. However, this Court recognized that the evidence plai ntiff presented, along with th at presented by defendant, created a question of fact for the j ury to resolve. 293 Mich App at 44 1-444.-6- Plaintiff presented sufficient evidence for a rational trier o f fact to conclude that he suffered a threshold injury, a serious impairment of an importa nt body function, to assert a third party tort claim against Visser.

Reversed and remanded. We do not retain jurisdiction.

/s/ Jane M. Beckering /s/ Jane E. Markey /s/ Douglas B. Shapiro