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### STATE OF MICHIGAN

COURT OF APPEALS

MARVIN ASKER,

Plaintiff-Appellant, UNPUBLISHED June 13, 2017

v No. 331452

Oakland Circuit Court

ISHMAEL SANDERS and COMCAST OF

COLORADO/FLORIDA/MICHIGAN/NEW MEXICO/PENNSYLVANIA/WASHINGTON, LLC, LC No. 2015-147818-NI

Defendant-Appellee.

Before: J ANSEN , P.J., and M URPHY and B ORRELLO , JJ.

P ER C URIAM

.

In this action for noneconomic tort damages under the no-fault act, MCL 500.3101 et

seq ., the trial court granted summ ary disposition pursuant to MCR 2.116(C)(10) in favor of defendants, Ishmael Sanders and Comcast, Sanders’ employer. Be cause we find that plaintiff presented sufficient evidence of a threshold injury under MCL 5 00.3135 to survive summary disposition, we reverse and remand for further proceedings.

This case arises from an August 22, 2012 motor vehicle acciden t involving plaintiff, whose vehicle was stopped at a r ed light, and defendant Sanders , who rear-ended plaintiff’s vehicle at about 10 to 15 miles per hour while driving a work v an for Comcast. On impact, plaintiff felt his back crack and experienced a slight pain in his neck. Plaintiff returned to work immediately after the accident, but increased pain and swelling drove plaintiff to check himself in to an emergency room six hours later. X-rays revealed no ap preciable skeletal injuries. No

MRI 1 was conducted. Plaintiff was re leased with a prescription for pain medication and directed

1 As we explained in Chouman v Home Owners Ins Co , 293 Mich App 434, 442 n 4; 810 NW2d 88 (2011), that an “MRI,” or “magnetic resonance imaging” proce dure, “permits detailed, potentially three-dimensional vi ewing of soft tissue structures within the body-such as muscles, nerves, and connective tissue-w ithout using ionizing radiation; as distinct from x-rays or CT scans, which do subject the body to ionizing radiation and are much less useful for visualizing

soft tissue.”-2- to follow-up. Plaintiff started seeing a chiropractor but disc ontinued his visits as his pain

worsened.

In March, 2013, plaintiff was evaluated by Dr. Stefan Glowacki at Metro Physical Therapy, after complaining of worsening back, neck, and leg pai n. Plaintiff indicated that he was having problems engaging in manual labor and was unable to have sex due to back pain.

Plaintiff also stated that sittin g for too long aggravated his pain. Glowacki assessed plaintiff as experiencing “[i]mpaired joint mobility, motor function, [and] muscular performance.” On physical examination, Glowacki observed a “restricted range of motion,” specifically noting plaintiff’s inability to touch hi s toes or look straight up or down. Glowacki also observed diminished sensation in plainti ff’s ulnar nerve distributions, “spine stiffness with paraspinal muscle spasm” and “diminished sensation in the L4-L5 nerve rootdistribution on [the] left side,” and atrophy of muscles in plaintiff’s left leg. Glowacki diagn osed plaintiff with herniated discs in the cervical and lumbar spine, and contusions of the neck, b ack, right shoulder, and left knee. Glowacki found plaintiff “totally incapacitated” and ordered do mestic help and attendant care eight hours a day, seven days a week until April 10, 2013. Glo wacki recommended physical therapy and ordered an MRI. Plaintiff attended physical therap y every two to three days for the following month and a half, discon tinuing treatment after findi ng it unsuccessful.

An April 13, 2013 MRI performed by Dr. Douglas Eiland at Oak P ark Imaging revealed “[r]ight posterolateral disc her niation with accompanying osteo phyte protrusion” of plaintiff’s C3-C4 spinal disc, and “broad-based posterior herniation” of pl aintiff’s C6-C7 spinal disc with “loss of height.” Thereafter, G lowacki extended plaintiff’s re strictions and continued the order for domestic help and att endant care through May 31, 2013.

In July, 2014, plaintiff saw Dr . Martin Kornblum about ongoing neck and lower back pain. Kornblum noted the presence of herniated discs and refer red plaintiff to pain management.

Kornblum also ordered another MR I. On referral, Dr. Michael Pa ley at Silverpine Imaging performed an MRI of plaintiff’s lumbar spine, reporting herniat ion of the T11-T12 discs and a slight bulging of the L3-L4 and L4-L5 discs. Plaintiff returne d to see Kornblum in September, 2014, and saw pain management specialist Dr. Anthony Oddo in Oc tober, 2014. Kornblum suspected that plaintiff’s pain was due to the newly discovered herniation of plaintiff’s T11-T12 disc, but noted that the disc changes were small. Both Kornblu m and Oddo discussed surgical options with plaintiff but recommended that plaintiff pursue “m ore conservative” treatments, such as physical therapy and med ication, in the alternative.

On November 18, 2014, plaintiff returned to see Kornblum, who noted that plaintiff was “still having tenderness throughout his cervical and mostly his lumbar paraspinal musculature,” and experiencing “pain down his left lower extremity including numbness and tingling in his great toe.” Kornblum referred plaintiff for a CT scan and a di scogram “for further evaluation and surgical consideration.” Plaintiff saw his primary care ph ysician twice after the November, 2014 visit with Kornblum, but there is no indication in the rec ord that plaintiff followed up with Kornblum, or that surgery was ever scheduled.

On June 30, 2015, plaintiff brought a complaint against Sander s and Comcast, jointly and severally, alleging negligence and seeking noneconomic damages under MCL 500.3135, for injuries resulting from the August 22, 2012 motor vehicle accid ent. According to plaintiff,-3- continuing pain following the accident left him disabled and ma de it difficult for him to engage in basic activities he enjoyed be fore the accident, such as goi ng to the gym, playing sports, maintaining sexual intimacy with his wife, and lifting his infa nt son. Defendants moved for summary disposition under MCR 2. 116(C)(10), arguing that plaint iff failed to establish that he suffered a serious impairment of body function. In response, p laintiff argued that his deposition testimony and medical history established factual disputes over the nature and extent of plaintiff’s injuries which precluded summary disposition as a m atter of law.

The trial court held a hearin g on defendant’s motion, but did not allow presentation of arguments. Instead, the trial co urt questioned plaintiff’s cou nsel regarding plaintiff’s alleged failure to pursue ongoing treatment and a late-filed supplement al affidavit of Kornblum, who would testify to the elements of serious impairment of body fun ction and proximate cause. The trial court declined to consider the affidavit, and expressed s ome skepticism regarding plaintiff’s claimed inability to lead a normal life. The trial court focus ed extensively on plaintiff’s admission in deposition that he traveled for vacation at least four times after the motor vehicle accident. Ultimately, the trial court granted defendant’s moti on. First, although the issue was not raised in defendant’s motion, the trial court found that pl aintiff failed to establish that his alleged injuries were caused by th e motor vehicle accident. Se cond, the trial court found that plaintiff failed to establish that his injuries affected his ge neral ability to lead a normal life. Specifically, the trial court found no indication in the record that a physician told plaintiff to avoid any of the activities plaintiff claimed to be unable to p articipate in, and no indication that plaintiff ever tried to engage i n these activities and was unab le to do so. Focusing on plaintiff’s ability to travel long distances on vacation, the trial court o pined that “plaintiff’s activities in the years following the motor vehicle accident do not support his a ssertions that he was unable to engage in activities with out experiencing pain.”

On appeal, plaintiff argues that the trial court erred in gran ting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10) because genuin e issues of material fact exist regarding the nature and extent of plaintiff’s injuries, whether plaintiff’s injuries were caused by the motor vehicle accident, and whether, as a result of the injuries, plaintiff suffered a serious impairment of a body func tion affecting his ability to lead a normal life. We agree.

We review a trial court’s decision on a motion for summary dis position de novo. Shinn v Michigan Assigned Claims Facility , 314 Mich App 765, 768; 887 NW2d 635 (2016). When reviewing a motion for summary disposition pursuant to MCR 2.11 6(C)(10), we consider the affidavits, pleadings, depositions, admissions, and other docum entary evidence in the light most favorable to the nonmoving party. Liparoto Const, Inc v Gen Shale Brick, Inc , 284 Mich App 25, 29; 772 NW2d 801 (2009). Under MCR 2.116(C)(10), summary d isposition is proper 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). “A genuine issue of materia l fact exists when the reco rd, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which re asonable minds could differ.” Bronson Methodist Hosp v Auto-Owners Ins Co , 295 Mich App 431, 441; 814 NW2d 670 (2012). The party opposing the mo tion may not rely on mere all egations, and has the burden to set forth specific facts to prove a genuine issue of material f act exists to preclude summary disposition. Oliver v Smith , 269 Mich App 560, 564; 715 NW2d 314 (2006).-4- Under Michigan no-fault law, tort liability for noneconomic lo ss resulting from a motor

vehicle accident is limited. Diallo v LaRochelle , 310 Mich App 411, 415; 871 NW2d 724 (2015) (citation omitted). Under MCL 500.3135(1), a motor vehicle ope rator is subject to tort liability for noneconomic loss when “the injured person has suffered deat h, serious impairment of a body function, or permanent serious disfigurement.” A serious impai rment of body function is “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( 5). In McCormick v Carrier , 487 Mich 180, 215; 795 NW2d 517 (2010), our Supreme Court articulat ed the following guidelines for consideration of whether a plaintiff has made a sufficient showing of a threshold injury to survive summary disposition:

To begin with, the court should determine whether there is a fa ctual dispute regarding the nature and the ext ent of the person’s injuries, a nd, if so, whether the dispute is material to determining whether the serious impairme nt of body

function threshold is met. If th ere is no factual dispute, or no material factual dispute, then whether the thre shold is met is a question of law for the court.

If the court may decide the issu e as a matter of law, it shouldnext determine whether the serious impairment threshold has been crossed. The unambiguous language of MCL 500.3135(7) provide s three prongs that are nece ssary to establish a “serious impairmen t of body function”: (1) an objec tively manifested impairment (observable or percei vable from actual symptoms or c onditions) (2) of an important body function (a body function of value, significa nce, or consequence to the injured person) that (3) affects the person’ s general ability to lead his or her normal life (inf luences some of the plaintiff’s capacity to live in his or her normal manner of living). [Citations omitted.]

The trial court did not adhere to these guidelines when it deci ded defendant’s motion for summary disposition. However, it is clear that the trial court concluded that it could decide the

threshold issue as a matter of l aw, dispensing with any examina tion of the facts and instead granting defendants’ motion on t he legal issues of causation an d failure to satisfy prong three of the threshold injury test. Given the trial court’s lack of ana lysis, we are unable to determine whether, pursuant to the requirements of MCL 500.3135 and McCormick , the trial court found that there was no factual dispute concerning the nature and ext ent of plaintiff’s injuries, or determined that a factual disput e existed but was immaterial. However, we are able to resolve the matter on the facts presented. It is undisputed that plain tiff suffered from herniated discs and spinal protrusions. In fact, de fendants attached plaintiff’s m edical records and MRI results supporting plaintiff’s claims of injury to their motion for sum mary disposition. In the lower court, defendants argued only th at plaintiff’s injuries could n ot be considered so severe as to have caused a substantial change in plaintiff’s life. In essen ce, defendants challenge the “nature and extent of plaintiff’s injuries.” However, the comparative severity of plaintiff’s impairment, while relevant, is not “significant” or “essential” to the dete rmination of whether plaintiff’s impairment “affects his general ability to lead his normal life .” MCL 500.3135(5); See

McCormick , 487 Mich at 194, 216-217. Therefore, the question of whether plaintiff met the serious impairment threshold is properly addressed as a matter of law.-5- Under the first McCormick prong, a plaintiff must establis h “an objectively manifested impairment.” Id . at 215. In other words, a plaintiff must show that his injur ies are “evidenced by actual symptoms or conditions that someone other than the in jured person would observe or perceive as impairing a body function.” Id . at 196. “[T]he ‘objectively manifested’ requirement signifies that plaintiffs must introduce evidence establishing that there is a physical basis for their subjective complaints of pain and suffering.” Id . at 198 (quotation marks and citation omitted).

Here, defendants argue that pla intiff failed to establish an ob jectively manifested impairment because there was no sworn medical testimony properl y before the court at the time of defendants’ motion for summary disposition. We disagree. T he fact that there was no sworn medical testimony on the record before the motion for summary d isposition is not dispositive. Defendant confuses the burden of proof necessary to survive sum mary disposition with the burden of proof necessary to prevail on the merits. And while proving impairment “generally” requires medical testimony, our Supreme Court made clear that m edical testimony is not always required. Id . Here, the record is replete with documented physical manifes tations of plaintiff’s impairment in the form of medical records describing symptoms a nd treatment dating back to the

date of the motor vehicle accident. These records included MRI reports confirming the presence of herniated discs and protrusions of the lumbar spine. Defend ants do not dispute the accuracy of these records. Plaintiff’s subjective complaints were consi stently of back, neck and leg pain. The objective tests corroborated plaintiff’s subjective complai nts and created a question of fact as to whether plaintiff suffere d an objectively manifested impa irment.

Defendants also argue that plaintiff cannot prove an objective manifestation of his alleged injuries because individuals who sustained similar or more seri ous injuries have been found by this Court to not have sustained an objectively manifested impa irment. Defendants cite to a number of this Court’s unpublishe d decisions upholding summary disposition on grounds of

failure to establish “serious i mpairment of body function,” ins isting that the plaintiffs in each case suffered “more serious” injuries than those suffered by pl aintiff, and plaintiff must therefore be prohibited from claiming that he sustained an “objectively m anifested impairment.” Even if we shared defendants’ subjective belief that the plaintiffs in the cited cases “sustained more serious and more painful injuries” than the injuries suffered b y plaintiff, we are not persuaded that the comparison supports summary dismissal of plaintiff’s c laims. Not only are all of defendants’ cited unpublished opinions nonbinding, MCR 7.215(C) (1), they lack persuasive power because “[t]he serious impai rment analysis is inherently fact- and circumstance-specific and must be conducted on a case-by-case basis,” McCormick , 487 Mich at 215. It therefore “does not lend itself to any bright-line rule.” Id . at 216. “[B]ecause the Legislature avoided drawing lines in the sand . . . so must we.” Id

.

Defendants do not specifically dis pute plaintiff’s ability to s atisfy the second McCormick prong, and “we can conceive of no serious dispute that the spin e is an extremely important part of every person’s body.” Chouman v Home Owners Ins Co , 293 Mich App 434, 444; 810 NW2d 88 (2011). This Court has specifically held that “movement of one’s back is an important body

function.” Shaw v Martin , 155 Mich App 89, 96; 399 NW2d 450 (1986). We therefore proce ed to consider whether plaintiff presented sufficient evidence und er McCormick ’s third prong, which requires a showing that plaintiff’s impairment affected h is general ability to lead his

normal life. McCormick , 487 Mich at 200.-6- A serious impairment “affect[s] the person’s ability to lead h is or her normal life” when it

has “an influence on some of the person’s capacity to live in h is or her normal manner of living.”

Id . at 202. “Determining the effect or influence that the impair ment has had on a plaintiff’s ability to lead a normal life n ecessarily requires a comparisonof the plaintiff’s life before and

after the incident.” Id . Importantly, MCL 500.3135(5) “merely requires that a person’ s general ability to lead his or her normal life has been affected, not d estroyed.” 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 preincident normal life, the person’s general ability to do so was nonetheless affected.” Id

.

Disputing plaintiff’s ability t o satisfy prong three, defendan ts again cite to a number of this Court’s unpublished decisions, asking us to find that beca use “other plaintiffs whose lives were much more affected by injuries . . . have been found not t o have sustained a threshold injury,” plaintiff cannot prove that his life has been sufficie ntly affected. For reasons we explained in our discussion of McCormick ’s first prong, we find summar y dismissal of plaintiff’s claims on such a comparison inappropriate.

Defendants also suggest that pla intiff’s impairment could not h ave affected plaintiff’s life because plaintiff’s x-rays revealed no fractures and plaintiff was never hospitalized or subjected to invasive procedures. This is a specious argument, consideri ng defendants’ inclusion of plaintiff’s medical records to support their motion for summary disposition. Regardless, it is clear that “there is no quantitative minimum as to the percenta ge of a person’s normal manner of living that must be affected.” Id . at 203. There is no requiremen t that a plaintiff’s injuries be of a certain nature, or that treatme nt of a plaintiff’s injuries i nvolves invasive procedures.

Plaintiff has shown that his impairment affected his general a bility to lead his normal life because it has, at least, influenced some of his capacity to li ve in his normal, pre-injury manner of living. Plaintiff’s lifestyle is more sedentary than it was before the accident. In his deposition, plaintiff testified that before the accident he was very athletic and loved working out. Since the accident, however, his injuries have made it impossib le for him to engage in athletic activities without experiencing back swelling and “excruciating pain.” Additionally, plaintiff testified that he is no longer ab le to ride bicycles with his c hildren, engage in certain sexual activities with his wife, or carry his infant son. Plaintiff’s capacity to work and care for his three children has also been affected. After the accident, multiple physicians observed decreased mobility and range of motion. Six months after the accident, G lowacki deemed plaintiff “totally incapacitated” and ordered daily domestic help and attendant ca re. While plaintiff’s incapacitation was not confirmed or extended by any physicians beyond May, 2013, MCL 500.3135(5) contains no “temporal requirement as to how long an impairment must last in order to have an effect on the person’s general ability to live his o r her normal life.” Id . at 203 (quotation marks omitted).

The trial court improperly considered the fact that plaintiff had managed to travel for vacations conclusive proof that plaintiff’s ability to live his normal life had not been affected by his impairment. Plaintiff did testify at his deposition that h e traveled to Las Vegas four times in 2013 and 2014, to gamble and sit by the pool with his wife and children. He also traveled to Cancun, Mexico for two weeks with his wife, and took his childr en to an Ohio waterpark for two days in 2013. However, there is no evidence on the record of w hat activities plaintiff engaged in-7- while on vacation, or whether they are the same types of activi ties he would have engaged in prior to the accident. The trial court failed to comparatively analyze plaintiff’s life before the

motor vehicle accident and his life after the motor vehicle acc ident, and instead relied on its own “experience” with back pain to infer that a serious back injury would prevent plaintiff from sitting on an airplane for long periods of time. Summary dispo sition must be based on the facts presented, and the trial court’s injection of personal experien ce, especially on an issue requiring medical expertise, was inappropr iate. The fact that plaintiff was able to travel for vacation, alone, does not prove that his ability to engage in other activ ities was unaffected. For a serious impairment to affect a person’s manner of living, it does not n eed to destroy the person’s life or render all activity impossible. The fact that some aspects of plaintiff’s life were affected by his impairment was sufficient to satisfy McCormick ’s third prong.

Because plaintiff has presented questions of fact concerning w hether plaintiff’s injury met the statutory threshold fo r serious impairment of a body fu nction under MCL 500.3135, summary disposition under MCR 2.116(C)(10) was premature.

The trial court further erre d in its determination that summar y disposition was appropriate based on plaintiff’s failure to prove that plaintiff’s alleged injuries were caused or aggravated by

the motor vehicle accident. A lthough at the hearing on defenda nts’ motion for summary disposition the trial court suggested that it “agreed with defe ndant” that plaintiff failed to prove causation, it is clear that the tr ial court considered the issu e of causation sua sponte. Defendants

did not raise the issue in their m otion for summary disposition . In fact, defendants conceded that plaintiff’s injuries arose from the motor vehicle accident in t heir accompanying brief, stating that “[plaintiff] has failed to establish that injuries from his acc ident, which involved a bump to the back of his full-sized van at 10 to 12 miles per hour, affected his ability to live in his normal manner of living.” Plaintiff had no notice that the causation issue would be raised at the summary disposition hearing and, indeed, it was not raised by t he trial court or either party until the trial court rendered its oral opinion and granted defendant s’ motion. A trial court has the authority to grant summary disposition sua sponte under certain circumstances. MCR 2.116(I). However, under the circumstances presented here, the basic requ irements of notice and a meaningful opportunity to be hea rd were not satisfied, and summ ary disposition was therefore inappropriate. Al-Maliki v LaGrant , 286 Mich App 483, 486-489; 781 NW2d 853 (2009). We

could reverse the trial court’s decision on the causation issue for procedural error alone. See id

. at 488-489 (reversing a trial c ourt’s order granting summary di sposition after raising sua sponte the issue of causation and depr iving the plaintiff of an opportunity to respond).

However, we also find reversal appropriate because the require ments for summary disposition pursuant to MCR 2.116(C)(10) have not been met with regard to the issue of causation. Typically, causation is a question of fact for a ju ry. Nichols v Dobler , 253 Mich App 530, 532; 655 NW2d 787 (2002). The record here contains eviden ce creating a dispute of fact and precluding summary disposition as a matter of law. We agai n note that defendants conceded that plaintiff’s alleged injuries arose from the motor vehicle accident involving a van belonging to Comcast and driven by Sanders . Medical records attached to defendants’ motion for summary disposition showed that plaintiff reported to the hospital mere hours after the motor vehicle accident, complaining of back and neck pain. Subsequent MRI re ports indicate that plaintiff suffered from at least two herniated discs. Defendants have pr esented no evidence to support an alternate cause for plaintiff’s injuries. At a minimum, questi ons of fact remained. To support-8- the element of causation, a plaintiff need only set forth speci fic facts to “support a reasonable inference of a logical sequence of cause and effect.” Craig ex rel Craig v Oakwood Hosp , 471 Mich 67, 87; 684 NW2d 296 (2004) (quotation marks and citation omitted). In his deposition, plaintiff testified that he was rear-ended, he experienced pain and sought medical attention, he was diagnosed with injuries, and subsequent pain and discomfort restricted his ability to participate in activities he had been able to participate in be fore the accident. This is sufficient evidence of causation to survive summary disposition.

Reversed and remanded. We do not retain jurisdiction.

/s/ Kathleen Jansen /s/ William B. Murphy /s/ Stephen L. Borrello