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

FRANCISCO SALINAS,

Plaintiff-Appellant,

UNPUBLISHED

May 6, 2021

v No. 353882

Oakland Circuit Court

JOANNE HAYES and MICHIGAN MILLERS 

MUTUAL INSURANCE CO.,

LC No. 2019-172135-NI

Defendant-Appellees.

Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

In this automobile negligence action, plaintiff appeals as of right the trial court order 

granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). For the 

reasons set forth in this opinion, we reverse and remand for further proceedings.

I. BACKGROUND

This case arises from a motor vehicle accident that occurred on April 28, 2016, in which 

defendant Joanne Hayes allegedly rear-ended plaintiff while plaintiff was driving his employer’s 

vehicle. According to the police report, plaintiff complained of minor pain in his back at the scene 

of the accident but refused medical treatment at that time. On May 4, 2016, plaintiff sought 

medical treatment for head, neck, and shoulder pain at Oakwood Hospital and Medical Center. 

The provider notes indicate that plaintiff’s chief complaint was a “Motor Vehicle Crash,” that his 

pain had begun suddenly, and that his pain was constant and mild. Plaintiff informed a nurse that 

he attempted to go to work the previous day but was in too much pain. The record from this visit 

also indicates that plaintiff’s medical history was reviewed and that there was “[n]o pertinent past 

medical history.” X-rays revealed “degenerative disc findings” in the cervical spine, with no 

evidence of fracture or facet joint dislocation. Plaintiff testified during his deposition that he had 

never had right shoulder pain or back pain before the motor vehicle accident.

At some point, plaintiff returned to work but performed alternative duties and limited hours 

because of ongoing pain. On May 10, 2016, he was told to shovel mud or gravel at work and, 

according to plaintiff, he “injured [him]self worse.” Plaintiff testified during his deposition that 
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he further hurt his right shoulder, on which he eventually had surgery performed, during the 

workplace shoveling incident. He also further injured his back during this incident. Plaintiff 

testified that he had not worked for any employer since this incident and that he received worker’s 

compensation.

Plaintiff also sought medical treatment at Concentra on May 10, 2016. According to the 

record from the visit, plaintiff reported that the motor vehicle accident was the reason for seeking 

treatment. He complained of back, neck, head, and left ear pain. The record indicates that there 

was no past medical history contributing to his symptoms. Plaintiff visited Concentra again on 

May 11, 2016, reporting that he was involved in a motor vehicle accident and injured his upper, 

middle, and lower back. Plaintiff reported no prior functional restrictions. The record from this 

visit indicated that plaintiff had a cervical strain, lumbar strain, and strain of the thoracic region. 

Plaintiff returned to Concentra on May 18, 2016, complaining of continued soreness in his back 

and neck. The record from this visit indicates that plaintiff’s pain was severe, that there was no 

radiation, and that there was no shoulder pain.

On June 8, 2016, plaintiff visited Dr. Walid Osta. According to this record, plaintiff 

complained of pain following a motor vehicle accident. Osta conducted a physical examination

and diagnosed plaintiff with neck, thoracic, and lumbar sprains. On June 23, 2018, Dr. Michael 

Paley performed an MRI on plaintiff’s lumbar spine and determined that there was mild 

levoscoliosis, straightening of the lumbar lordotic curve that could indicate muscular spasm, 

anterior spondylolisthesis, and foraminal stenosis. On July 12, 2016, Dr. Michael Paley performed 

an MRI on plaintiff’s cervical spine and determined that plaintiff had bulging disc and 

hypertrophic bony changes resulting in foraminal stenosis and that there also was straightening of 

the cervical lordotic curve that could be consistent with either “patient positioning” or cervical 

muscular spasm.

On August 11, 2016, plaintiff underwent an electromyographic examination by Dr. Jack 

Belen at Mendelson Kornblum Orthopedic & Spine Specialists for “complaints of neck pain and 

pain and numbness into the upper extremities all the way to the fingers.” The record from this 

visit reports that plaintiff’s “problems began following a work related injury that occurred in April 

of 2016.” Belen determined that plaintiff had bilateral cervical nerve root irritation and mild right 

carpal tunnel syndrome. Belen also conducted an electromyographic examination on August 18, 

2016, regarding plaintiff’s complaints of pain in his lower back and lower extremities. Belen 

determined that plaintiff had bilateral S1 nerve root irritation.

On November 2, 2016, a shoulder intake form for plaintiff was completed with Mendelson

Kornblum indicating that he was seeking treatment for his right shoulder that was injured in the

automobile accident on April 28, 2016. The form indicated that this condition prevented plaintiff 

from reaching high shelves, doing usual work, and lifting more than 10 pounds. The report 

completed by Dr. Stephen Mendelson, a board certified orthopedic surgeon, regarding this visit 

also indicates that plaintiff denied having any problem with his shoulder before the accident. 

Radiographic imaging revealed no fractures or dislocation in plaintiff’s shoulder. The report also 

indicates a determination of “[b]ilateral shoulder concern for internal derangement.” An MRI of 

plaintiff’s right shoulder conducted by Paley at Silver Pine Imaging on November 3, 2016, found 

a partial-thickness tear in plaintiff’s rotator cuff. An MRI of plaintiff’s left shoulder conducted by 
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Paley at Silver Pine Imaging on November 3, 2016, the findings of which included a “SLAP 1 

type tear of the superior labrum.”

On November 17, 2016, plaintiff discussed ongoing pain in his back and lower extremities 

with Dr. Martin Kornblum at Mendelson Kornblum. The record indicates that plaintiff 

subsequently received chiropractic treatment for his neck, back, and shoulder.

On December 7, 2016, plaintiff was seen by Mendelson regarding plaintiff’s shoulder 

issues. Mendelson wrote in his report that plaintiff had “sustained real injuries about the 

shoulders,” was more symptomatic in the right shoulder, and that plaintiff would undergo physical 

therapy for both shoulders. Plaintiff visited Mendelson again on January 18, 2017, with continuing 

complaints of significant pain in his right shoulder, which was not alleviated by the recommended 

therapy. After discussing various options, Mendelson recommended shoulder arthroscopy. On 

February 24, 2017, Mendelson performed a surgical operation on plaintiff’s shoulder. The 

operative report indicated that the preoperative diagnosis was a “[p]artial thickness tear of 

supraspinatus tendon” and that the postoperative diagnosis was a SLAP tear, biceps tendon tear, 

impingement, adhesion of the shoulder, and bursitis. During an April 19, 2017 visit with 

Mendelson, plaintiff reported that his right shoulder was feeling much better. On June 7, 2017, 

plaintiff complained of some numbness in his right arm, but he had full range motion of his 

shoulder.

On September 18, 2017, Dr. Brian Roth conducted a medical examination of plaintiff. 

Roth indicated that he was unable to review the shoulder imaging conducted by Silver Pine 

Imaging because the discs plaintiff brought to the examination would not open. Roth disagreed 

with Belen’s August 11, 2016 determination that plaintiff had bilateral cervical nerve root irritation 

and mild right carpal tunnel syndrome because Roth concluded that there “were only isolated 

changes of the cervical paraspinal muscles, which is non-diagnostic.” Roth concluded from his 

examination and review of plaintiff’s medical records that there was “no evidence of ongoing 

injury or pathology” and that there was “no evidence of cervical, thoracic, or lumbar radiculopathy, 

or ongoing right shoulder pathology that would require ongoing treatment.” Roth further opined 

that plaintiff “has no objective condition, from his motor vehicle accident at work, April 28, 2016, 

which was caused or significantly aggravated by his alleged work at Concrete Levelers, LLC,” but 

plaintiff “has preexisting degenerative arthritis.”

At a January 11, 2018 visit with Kornblum, plaintiff’s neck and back pain were continuing 

to bother him. Kornblum’s diagnosis was cervical and lumbar pain, as well as sacroiliitis. 

Dr. Matthew Sardelli, a board certified orthopedic surgeon, examined plaintiff on March 

13, 2018, and concluded from his examination and review of plaintiff’s records that plaintiff had 

resolved cervical and lumbar spine strains, right shoulder symptoms that were unrelated to the 

motor vehicle accident, and bilateral carpal tunnel syndrome unrelated to the motor vehicle 

accident. Sardelli opined that plaintiff’s right shoulder injuries were degenerative and not caused 

by the motor vehicle accident because he did not find them to be the type of injuries caused by a 

“rear-ending type motor vehicle accident.” Although somewhat confusing, Sardelli further 

concluded both that the Silver Pine MRI of plaintiff’s right shoulder did not show rotator cuff 

tearing and that the November 3, 2016 MRI of plaintiff’s right shoulder demonstrated a partialthickness tear to the rotator cuff and no SLAP tear.
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Dr. Justin Rlutta performed a medical evaluation of plaintiff on April 30, 2018, that 

included a review of plaintiff’s medical records. Rlutta concluded that plaintiff’s “current 

diagnosis is cervical, thoracic, and lumbar spondylosis without evidence of any significant 

alteration related to his motor vehicle incident.” He also concluded that “[a]ll clinical workups 

revealed degenerative changes without evidence of significant traumatic findings,” that plaintiff 

sustained “soft tissue injuries” from the accident that should have resolved within six weeks, that 

suffering soft tissue injuries was consistent with plaintiff’s actions of not seeking medical 

treatment until approximately seven days after the accident, and that there was “no indication that 

the shoulder surgery was indicated as the result of the motor vehicle incident.” Additionally, Rlutta 

stated that plaintiff’s “presentation at the time of my clinical assessment revealed widespread 

nonphysiological pain behaviors compatible with a fictitious disorder and gross malingering.”

On February 27, 2019, plaintiff filed his complaint initiating this lawsuit. Plaintiff asserted 

one count of bodily injury liability against Hayes based on her alleged negligent driving, and he 

also sought uninsured and underinsured motorist benefits from Michigan Millers Mutual Insurance 

Company (MMMIC) in two separate additional counts based on plaintiff’s policy of insurance 

with MMMIC.

MMMIC moved for summary disposition under MCR 2.116(C)(10), arguing that there was 

no genuine issue of material fact that plaintiff had failed to show that he suffered a serious 

impairment of an important body function that affected his general ability to lead his normal life

as required by MCL 500.3135. MMMIC argued that plaintiff had continued to work for several 

days after the April 28, 2016 motor vehicle accident and had been injured while shoveling gravel 

for his employer on May 10, 2016, which caused or aggravated the injuries to plaintiff’s neck, 

back, and upper and lower extremities. MMMIC further argued that plaintiff had received 

worker’s compensation for the May 10 injury and that he also had been diagnosed with underlying

degenerative conditions that existed before the motor vehicle accident. Additionally, MMMIC 

argued that three independent medical examinations had shown that plaintiff only incurred soft 

tissue injuries. MMMIC contended that based on the conclusion that plaintiff had only suffered 

soft tissue injuries that should have resolved in six weeks, he did not suffer an objectively 

manifested impairment as a result of the motor vehicle accident. MMMIC also pointed out the 

conflicts between the conclusions of plaintiff’s treating physicians and the independent medical 

examiners regarding the interpretation of plaintiff’s imaging studies, and MMMIC essentially 

contended that the conclusions of the independent medical examiners were correct. Hayes 

concurred in MMMIC’s motion for summary disposition.

In addition to the evidence already discussed above, MMMIC submitted medical records

in its motion for summary disposition indicating that plaintiff presented to the emergency room in 

October 2007 for complaints of pain in his neck and radiating to his arm. At that time, it was 

determined that plaintiff had “[d]egenerative changes in the circle spine without evidence of an

acute fracture or dislocation.” MMMIC also submitted a redemption order dated February 15, 

2018, and indicating that there had been an agreement for plaintiff to redeem his employer’s entire 

worker’s compensation liability based on injuries that plaintiff suffered on April 28, 2016, and 

May 10, 2016, that arose out of and in the course of his employment.

Plaintiff opposed the motion for summary disposition, arguing that he had demonstrated 

an objective impairment that was caused by the motor vehicle accident and was observable or 
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perceivable from actual symptoms or conditions. Specifically, plaintiff argued that he had suffered 

objective impairments to his lumbar spine, cervical spine, right shoulder, and left shoulder. 

Plaintiff relied on his medical records, diagnostic studies, and an affidavit by Mendelson. The 

affidavit by Mendelson was attached to plaintiff’s response. Mendelson averred that he had treated 

plaintiff, that he had reviewed MRI images of plaintiff’s shoulders and plaintiff’s medical records, 

and that he concluded in his “expert[] medical opinion” that plaintiff had “suffered new injuries 

and/or aggravation of previous injuries due to the April 28, 2016, accident.” Mendelson further 

averred that he had “rel[ied] on subjective and objective findings taken from before and after the 

April 28, 2016, motor vehicle accident. Additionally, Mendelson averred that plaintiff’s right 

shoulder surgery was “necessitated by the April 28, 2016, accident” and that Mendelson 

“believe[d] to a reasonable degree of medical certainty that [plaintiff’s] injuries were caused by 

the April 28, 2016, auto accident.”

The trial court issued a written opinion and order granting MMMIC’s motion for summary 

disposition without holding oral argument. The trial court based its decision on its conclusion that 

plaintiff could not demonstrate that his injuries were “evidenced by actual symptoms or conditions 

that someone other than the injured person would observe or perceive as impairing a body 

function,” as required by our Supreme Court in McCormick v Carrier, 487 Mich 180, 196; 795 

NW2d 517 (2010), to show an objectively manifested impairment. The trial court reasoned:

The Plaintiff must introduce evidence establishing that there is a physical basis for 

their subjective complaints of pain and suffering. In looking at the evidence in the 

light most favorable to the Plaintiff, the Court concludes that the Plaintiff has not 

submitted sufficient evidence to satisfy his burden relative to the first [McCormick] 

prong. Dr. Mendelson’s affidavit has not created a question of fact on this issue 

because the medical records provided do not show that Plaintiffs subjective 

complaints of pain have a physical basis that resulted from the motor vehicle 

accident and Dr. Mendelson is not qualified to opine on causation in this instance. 

[Citation omitted.]

Other than the conclusory statement above, the trial court provided no explanation as to its 

finding that Dr. Mendelson was “not qualified to opinion on causation in this instance.” Notably, 

the trial court did not issue a ruling on the second and third McCormick prongs. 

The trial court dismissed the case with prejudice. Plaintiff now appeals.

II. STANDARD OF REVIEW

This Court reviews the trial court’s decision to grant a motion for summary disposition de 

novo. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 

NW2d 618 (2009). Under MCR 2.116(C)(10), summary disposition is appropriate if “[e]xcept as 

to the amount of damages, there is no genuine issue as to any material fact, and the moving party 

is entitled to judgment or partial judgment as a matter of law.” “There is a genuine issue of material 

fact when reasonable minds could differ on an issue after viewing the record in the light most 

favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 

NW2d 8 (2008).
-6-

If the moving party properly supports a motion under MCR 2.116(C)(10) with affidavits, 

depositions, admissions, or other documentary evidence supporting the party’s assertion that no 

genuine issue of material fact exists, then the burden shifts to the nonmoving party opposing the 

motion “to establish that a genuine issue of disputed fact exists.” Barnard, 285 Mich App at 369-

370. In responding to a properly supported motion under MCR 2.116(C)(10), “an adverse party 

may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or 

as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for 

trial” and “[i]f the adverse party does not so respond, judgment, if appropriate, shall be entered 

against him or her.” MCR 2.116(G)(4); see also Barnard Mfg, 285 Mich App at 375-379, 381.

III. ANALYSIS

Plaintiff argues on appeal that he produced evidence—in the form of medical records, 

diagnostic studies, and an affidavit by Mendelson—to create a genuine issue of material fact that 

he sustained an objectively manifested serious impairment of body function that was caused by 

the April 28, 2016 motor vehicle accident. Plaintiff specifically argues that resolution of the issue 

whether he suffered an objective impairment caused by the motor vehicle accident involves the 

conflicting opinions of medical experts.

Under MCL 500.3135(1), a “person remains subject 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.”

1

 

Of these three types of threshold injury, only the “serious impairment of body function” standard 

is at issue in the present case. Pursuant to MCL 500.3135(5),2

 

1 Plaintiff asserted negligence claim against Hayes. Claims seeking uninsured and underinsured 

motorist insurance coverage are predicated in part on an underlying third-party negligence claim 

against an at-fault driver. See Rory v Continental Ins Co, 473 Mich 457, 465; 703 NW2d 23 

(2005); Nickola v MIC Gen Ins Co, 500 Mich 115, 122; 894 NW2d 552 (2017).

2 MCL 500.3135(5) previously provided: “As used in this section, ‘serious impairment of body 

function’ means 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), as amended by 2012 

PA 158. In the body of our opinion, we have quoted the current version of this statutory provision 

that took effect after plaintiff initiated this action but before the trial court issued its summary 

disposition ruling in this case. See 2019 PA 21; 2019 PA 22. However, as is evident from our 

discussion of McCormick below, the language of the recently amended version of MCL 

500.3135(5) merely reflects the McCormick Court’s holding regarding the applicable standards for 

determining whether there was a serious impairment of body function. McCormick was decided 

in 2010 and we are undoubtedly bound by McCormick in resolving the instant case. Accordingly, 

we discern no substantive difference in also applying the current version of MCL 500.3135(5) 

considering its consistency with the holding in McCormick. Although we do not decide any 

potential retroactivity issues because they have not been formally presented or briefed by the 

parties on appeal, it appears that the current statutory language would apply in this case. See In re 

Certified Questions from US Court of Appeals for the Sixth Circuit, 416 Mich 558, 572; 331 NW2d 
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“serious impairment of body function” means an impairment that satisfies all of the 

following requirements:

(a) It is objectively manifested, meaning it is observable or perceivable from 

actual symptoms or conditions by someone other than the injured person.

(b) It is an impairment of an important body function, which is a body 

function of great value, significance, or consequence to the injured person.

(c) It affects the injured person’s general ability to lead his or her normal 

life, meaning 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.

In McCormick, 487 Mich at 195, our Supreme Court held that the Legislature in MCL 

500.3135 had set forth “three prongs that are necessary to establish a ‘serious impairment of body 

function’: (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.”

Regarding the first prong, our Supreme Court held that the phrase “objectively manifested”

means “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,” i.e. an impairment 

that is “observable or perceivable from actual symptoms or conditions.” Id. at 196.

With respect to the second prong, a body function is “important” if it has “great value, 

significance, or consequence” to the injured person. Id. at 199 (quotation marks and citation 

omitted).

The McCormick Court explained the meaning of the third prong in relevant part as follows:

Therefore, the plain text of the statute and these definitions demonstrate that 

the common understanding of to “affect the person’s ability to lead his or her 

normal life” is to have an influence on some of the person’s capacity to live in his 

or her normal manner of living. By modifying “normal life” with “his or her,” the 

Legislature indicated that this requires a subjective, person- and fact-specific 

inquiry that must be decided on a case-by-case basis. Determining the effect or 

 

456 (1982) (“[R]etrospective application of a law is improper where the law takes away or impairs 

vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or 

attaches a new disability with respect to transactions or considerations already past.”) (quotation 

marks and citation omitted).
-8-

influence that the impairment has had on a plaintiff’s ability to lead a normal life 

necessarily requires a comparison of the plaintiff’s life before and after the incident.

There are several important points to note, however, with regard to this 

comparison. First, the statute merely requires that a person’s general ability to lead 

his or her normal life has been affected, not destroyed. Thus, courts should consider 

not only whether the impairment has led the person to completely cease a preincident activity or lifestyle element, but also whether, although a person is able to 

lead his or her pre-incident normal life, the person’s general ability to do so was 

nonetheless affected.

Second, and relatedly, “general” modifies “ability,” not “affect” or “normal 

life.” Thus, the plain language of the statute only requires 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.

Third, and finally, the statute does not create an express 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 or her normal life.” To begin with, there is 

no such requirement in the plain language of the statute. Further, MCL 500.3135(1) 

provides that the threshold for liability is met “if the injured person has suffered 

death, serious impairment of body function, or permanent serious disfigurement.”

While the Legislature required that a “serious disfigurement” be “permanent,” it 

did not impose the same restriction on a “serious impairment of body function.”

[McCormick, 487 Mich at 202-203.]

In this case, although we glean from the trial court’s ruling that its decision was founded 

on its conclusion that plaintiff had failed to create a genuine issue of material fact regarding the 

first McCormick prong, it is unclear from the trial court’s explanation how it reached that 

conclusion. It appears that the trial court’s conclusion rested entirely on its beliefs that (1) there 

was no evidence of a physical basis for plaintiff’s complaints of pain and (2) there was no evidence 

that plaintiff’s shoulder impairment for which he was treated by Mendelson was caused by the 

motor vehicle accident. The record reveals evidence, which if believed, would contradict these 

determinations by the trial court, thereby creating unresolved questions of fact.

With respect to the trial court’s first reason, a serious impairment must be objectively 

manifested, meaning that it is “observable or perceivable from actual symptoms or conditions by 

someone other than the injured person.” MCL 500.3135; see also McCormick, 487 Mich at 196. 

The trial court in this case seemingly ignored the extensive medical record evidence documenting 

plaintiff’s various injuries to his cervical, thoracic, and lumbar spine, as well as his shoulders. The 

record contains evidence that plaintiff’s treating physicians conducted physical examinations and

imaging studies and that plaintiff was diagnosed with various conditions of the cervical, thoracic, 

and lumbar spine that included strains and straightening consistent with potential muscularspasms,
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as well as a partial-thickness tear in his right rotator cuff. Plaintiff’s shoulder issues prevented 

him from reaching high shelves, doing his usual work, and lifting more than 10 pounds. Thus, the 

record contains evidence supporting a conclusion that plaintiff suffered an objectively manifested 

impairment because there was evidence that plaintiff’s claimed impairments to his neck, back, and 

shoulders were based on conditions that were observable or perceivable by plaintiff’s doctors. 

MCL 500.3135; McCormick, 487 Mich at 196; see also id. (stating that the adjective “objective”

is “defined specifically in the medical context as ‘[i]ndicating a symptom or condition perceived 

as a sign of disease by someone other than the person afflicted’ ”) (citation omitted; alteration in 

original).

Although MMMIC’s medical experts apparently disagreed with various diagnoses and 

conclusions reached by plaintiff’s doctors, conflicting evidence merely establishes a question of 

fact making summary disposition improper; the trial court is not permitted to weigh the evidence, 

make credibility determinations, or make findings of fact when deciding a summary disposition

motion. Patrick v Turkelson, 322 Mich App 595, 605-606; 913 NW2d 369 (2018). The trial 

court’s stated reasoning that plaintiff had not presented “sufficient” evidence to meet the first prong

reflects the trial court’s improper weighing of the evidence presented by the parties to justify its 

conclusion. Id.

Additionally, defendants’ arguments that essentially amount to claiming that plaintiff’s 

impairments were relatively minor “soft tissue” injuries that should have healed within six weeks 

reflect a misunderstanding of the applicable standards under McCormick. As an aside, we note 

that such arguments are more properly understood as belonging within the context of the third 

McCormick prong. Nevertheless, the Court in McCormick held that “the statute merely requires 

that a person’s general ability to lead his or her normal life has been affected, not destroyed” and 

that “the statute does not create an express 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 or her normal life.’ ” 

McCormick, 487 Mich at 202, 203. Because the trial court did not make any ruling on the third 

McCormick prong, we decline to address these issues further at this juncture. “Appellate review 

is limited to issues actually decided by the trial court.” Allen v Keating, 205 Mich App 560, 564; 

517 NW2d 830 (1994).

Next, it appears that the trial court concluded that plaintiff had not produced sufficient

evidence of causation linking an objective impairment to the motor vehicle accident. “Proximate 

causation is a required element of a negligence claim,” and establishing proximate cause requires 

the plaintiff to “prove the existence of both cause in fact and legal cause.” Patrick, 322 Mich App 

at 616 (quotation marks and citation omitted).

The trial court’s ruling regarding causation appears to arise from its holding that there was 

no evidence that plaintiff’s impairments actually resulted from the motor vehicle accident and that 

the trial court was thus referring to cause in fact.

3

 “Establishing cause in fact requires the plaintiff 

 

3 We cannot discern from the trial court’s opinion any indication that the trial court ruled that any 

of plaintiff’s various claimed impairments were not foreseeable results of a motor vehicle accident. 

“To establish legal cause, the plaintiff must show that it was foreseeable that the defendant’s 
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to present substantial evidence from which a jury may conclude that more likely than not, but for 

the defendant’s conduct, the plaintiff’s injuries would not have occurred.” Id. at 617 (quotation 

marks and citation omitted). “Although causation cannot be established by mere speculation, a 

plaintiff’s evidence of causation is sufficient at the summary disposition stage to create a question 

of fact for the jury if it establishes a logical sequence of cause and effect, notwithstanding the 

existence of other plausible theories, although other plausible theories may also have evidentiary 

support.” Id. (quotation marks and citation omitted).

Here, the trial court did not meaningfully attempt to address causation under the applicable 

legal standards. Instead, as previously stated, the trial court asserted that Mendelson was “not 

qualified to opine on causation in this instance” without giving any further explanation or 

providing any citation to legal authority supporting this reasoning. 

Our review of the record reveals that plaintiff reported back pain at the scene of the April 

28, 2016 motor vehicle accident. The record further reveals evidence that plaintiff had not 

experienced back or right shoulder pain before the April 28, 2016 motor vehicle accident and that 

he went to Oakwood Hospital on May 4, 2016, with complaints of neck and shoulder pain from 

the accident that had begun suddenly and that plaintiff associated with the motor vehicle accident. 

Records from this visit indicate that plaintiff’s medical history was reviewed and that there was 

“[n]o pertinent past medical history.” Notably, this May 4 visit occurred before the workplace 

incident involving shoveling. Plaintiff testified that the shoveling incident made his injuries worse, 

not that he did not have any injury before that incident.

In June 2016, Osta performed a physical examination of plaintiff when plaintiff complained 

of pain following a motor vehicle accident, and Osta diagnosed plaintiff with neck, thoracic, and 

lumbar sprains. Mendelson performed a surgical operation on plaintiff’s shoulder to address a 

partial-thickness tear that had been diagnosed on the basis of an MRI. Mendelson opined in his 

affidavit that plaintiff’s right shoulder injury was a new injury or the aggravation of previous 

injuries, which was the result of the April 28, 2016 motor vehicle accident. Mendelson had treated 

plaintiff’s right shoulder and based his opinion in part on his review of plaintiff’s medical records 

and findings from both before and after the accident. Mendelson’s opinions were thus grounded 

on a factual evidentiary basis and were not mere hypothetical suppositions. See Skinner v Square 

D Co, 445 Mich 153, 173-174; 516 NW2d 475 (1994), overruled in part on other grounds by Smith 

v Globe Life Ins Co, 460 Mich 446, 455 n 2; 597 NW2d 28 (1999) (“[E]xpert opinion based upon 

only hypothetical situations is not enough to demonstrate a legitimate causal connection between 

a defect and injury,” and “there must be facts in evidence to support the opinion testimony of an 

expert.”) (quotation marks and citation omitted).

 

conduct may create a risk of harm to the victim, and . . . [that] the result of that conduct and 

intervening causes were foreseeable.” Patrick, 322 Mich App at 617 (quotation marks and citation 

omitted; ellipsis and alteration in original). Accordingly, the trial court appears to have made no 

ruling regarding legal cause.
-11-

The evidence described above, viewed in a light most favorable to plaintiff as the 

nonmoving party, demonstrates a “logical sequence of cause and effect” between the motor vehicle 

accident and plaintiff’s subsequent shoulder issues such that there was a genuine issue of material 

fact regarding but-for causation. Patrick, 322 Mich App at 617. Moreover, the evidence was not 

limited to a simple contention that plaintiff did not have shoulder pain before the accident but 

experienced shoulder pain after the accident; there was evidence that both plaintiff and Mendelson 

linked the shoulder issues to the accident. See id. at 619-620 (considering record evidence 

consisting of both the plaintiff’s statements and medical evidence do determine whether there was 

a genuine issue of material fact regarding cause in fact). Thus, plaintiff presented evidence of 

more than a mere temporal relationship. West v Gen Motors Corp, 469 Mich 177, 186 & n 12; 

665 NW2d 468 (2003) (stating that a temporal relationship by itself does not establish a causal 

connection). “[T]he plaintiff is not required to produce evidence that positively eliminates every 

other potential cause.” Skinner, 445 Mich at 159.

Defendants’ alternate theories that plaintiff merely suffered from preexisting degenerative 

conditions or that the shoveling incident was actually the sole cause of new or aggravated injury 

also have record support, but these conflicting theories merely illustrate the genuine questions of 

fact regarding causation that should properly be resolved by a jury. “Causation is an issue that is 

typically reserved for the trier of fact unless there is no dispute of material fact.” Patrick, 322 

Mich App at 616. Plaintiff could still potentially recover for impairments that constitute 

aggravations of preexisting conditions. Wilkinson v Lee, 463 Mich 388, 395; 617 NW2d 305, 308 

(2000) (“Regardless of the preexisting condition, recovery is allowed if the trauma caused by the 

accident triggered symptoms from that condition.”). Additionally, as previously noted, there is no 

requirement that a person’s general ability to lead his or her normal life has been destroyed or that 

the impairment last for a specific length of time in order to establish a threshold injury. 

McCormick, 487 Mich at 202-203. Defendants’ arguments ignore the conflicting evidence in the 

record regarding the cause of plaintiff’s alleged impairments. Moreover, the trial court did not 

even consider whether there was a genuine issue of material fact regarding causation with respect 

to plaintiff’s other alleged neck and back impairments.

In short, it appears that the trial court essentially based its summary disposition ruling on 

its own subjective assessment of the weight and strength of the parties’ respective evidence, 

contrary to the governing standards for deciding a summary disposition motion. Allison, 481 Mich 

at 425; Patrick, 322 Mich App at 605-606. We therefore reverse.

Reversed and remanded for further proceedings not inconsistent with this opinion. We do 

not retain jurisdiction. Plaintiff having prevailed may tax costs. MCR 7.219.

/s/ Elizabeth L. Gleicher 

/s/ Stephen L. Borrello 

/s/ Brock A. Swartzle