COA 369253 VAAG OGANYAN V BLACK TIGER TRUCKING LLC Opinion - Per Curiam - Unpublished 1/16/2026

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
VAAG OGANYAN and CAROLINA OGANYAN,
Plaintiffs-Appellants,
and
SO, TO, and AO, Minors, by Next Friend VAAG
OGANYAN,
Plaintiffs,
UNPUBLISHED
January 16, 2026
2:20 PM
v No. 369253
Macomb Circuit Court
BLACK TIGER TRUCKING, LLC, and
KHOSHABA BABA,
LC No. 2021-001482-NI
Defendants-Appellees.
Before: MALDONADO, P.J., and BOONSTRA and WALLACE, JJ.
PER CURIAM.
Plaintiffs, Vaag and Carolina Oganyan,1 appeal the trial court’s order granting summary
disposition to defendants, Black Tiger Trucking, LLC and Khoshaba Baba, in this third-party
automobile negligence action by leave granted.2 We reverse and remand for further proceedings
consistent with this opinion.
1 Only Vaag and Carolina seek relief from this Court as appellants. For clarity and convenience,
we refer only to them as “plaintiffs” in this opinion and only discuss their children (three of whom
are plaintiffs to this action) when relevant.
2 Oganyan v Black Tiger Trucking, LLC, unpublished order of the Court of Appeals, entered July
2, 2024 (Docket No. 369253).

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I. FACTUAL BASIS UNDERLYING THE LITIGATION
On October 28, 2020, at approximately 6:40 p.m., plaintiffs were driving on Interstate 40
East in Arkansas. They were driving from their home in Texas to Tennessee with three of their
children to attend a hockey tournament and visit family. It was raining heavily, visibility was low,
and they encountered a backup caused by a motor vehicle accident. Slowing to a stop because of
this backup, plaintiffs’ minivan was then rear-ended by a semi-trailer truck driven by Baba. The
force of the collision propelled the plaintiffs’ minivan forward into a ditch and caused its air bags
to deploy. Baba was driving the Freightliner on behalf of Black Tiger at the time of the accident,
transporting goods from Texas to Michigan, and the collision caused it to crash into the median
cable barrier and jackknife.
As a result of the crash, plaintiffs’ minivan was a total loss, i.e., it was “totaled” in the
crash. Plaintiffs and their three children did not receive emergency medical attention at the scene,
which was not forthcoming—emergency responders were already responding to a possibly fatal
accident (that was the source of the traffic backup) and it took the police over an hour to arrive to
take a report. Plaintiffs and their three children stayed in a hotel that night; finished their drive in
a rental car to stay with family near Nashville the following day; and, upon arrival, all of them
went to a medical center walk-in clinic for evaluation.
Vaag complained of neck pain, head injury, back pain and left knee pain at the clinic, was
diagnosed with myalgia and cervicalgia,3 and was instructed to follow-up with his primary care
physician upon his return to Texas.
He testified at his deposition that he may have experienced some neck pain in the past, has
had ongoing mild lower back pain and mild right hip pain for a number of years, and had meniscus
repair surgery on his right knee approximately 25 years earlier, in 1994. He was diagnosed with
depression and anxiety in 2003 or 2004. In 2012, Vaag was diagnosed with a “[m]ild degenerative
disc and facet disease of the lower lumbar spine . . . .” However, at a February 2019 doctor’s
appointment, no issues were noted with Vaag’s head, back, neck, or knees.
Vaag testified that he was rattled and his brain was in a fog on both the night of the accident
and the following night, his neck and back pain “started to kick in” more on the third night, and
the fourth and fifth nights were “just pain.” He further testified that the pain in his right knee “just
got horrible” once he started to walk more after the accident, and he suffered a lot of headaches.
On November 18, 2020, Vaag was diagnosed with postconcussion syndrome, acute posttraumatic
headaches, mild cognitive impairment,4 and dizziness and loss of focus. Cervicalgia was again
diagnosed at that time. Magnetic resonance imaging (MRI) of Vaag’s lumbar spine revealed that
he had herniated discs at L3-L4, L4-L5, and L5-S1; and an MRI of his cervical spine exhibited a
disc osteophyte complex5 at levels C3-C4, C4-C5, and C5-C6. Vaag’s deposition testimony and
3 Muscle pain and neck pain, respectively.
4 Based in part on the results of the cognitive testing conducted by his neurologist.
5 A condition where bone spurs or outgrowths form at the edges of vertebrae.

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medical records reflect post-accident medical treatment that includes physical therapy; a steroid
injection in his right knee, neck and two in his lower back from January-April 2021; as well as a
bilateral nerve block of his trigeminal nerve at the base of his skull in May 2021. In November
2021, Vaag had a surgery on his right knee, with post-surgical diagnoses of “right knee loose body
and chondromalacia and complex lateral meniscal tear.”6 On December 7, 2022, Vaag complained
of daily pain in his left knee. An MRI showed meniscal tearing that required surgical repair, but
it is unclear from the record whether this left knee surgery has occurred.
At the clinic on the day following the October 28, 2020 collision, Carolina complained of
back pain, a stiff neck, headache, chest pressure, and “muscle aches all over.” She was diagnosed
with acute whiplash and instructed to take ibuprofen for pain.
A medical record review in a defense medical examination7 report for Carolina summarizes
notes of a physician’s assistant at a 2016 yearly physical in which she discloses being under a lot
of stress, and having upper back and shoulder pain and headaches, but the record is otherwise
devoid of medical records reflecting complaints of neck, back or head pain from before the subject
collision.
On November 18, 2020, she was diagnosed with a concussion with loss of consciousness
and sequela, dysthymic disorder,8 mild cognitive impairment, insomnia, acute posttraumatic
headaches, diffuse traumatic brain injury (TBI) and sequela, and visual disturbances. Cervicalgia,
low back pain, and radiculopathy in the lumbar region were also diagnosed at that time. At her
March 2022 deposition, Carolina complained of lower back pain, sciatica in her right leg, frequent
headaches, neck pain and pain in her right breast, as well as vision problems that developed
immediately following the accident (for which she has had three sets of corrective lenses made
that still have not corrected her vision), all of which she attributes to the subject collision. She
testified that she has needed to wear glasses ever since the accident (whereas before the accident,
she said she only needed them on long distance drives). According to Carolina, her vision was
blurry following the accident and she could not read.
Medical records disclose that Carolina treated for neck and back pain following the subject
collision and subsequent MRIs exhibited a herniated disc at L5-S1 and a bulging disc at L4-L5.
6 Chondromalacia is a deterioration and softening of the cartilage in the knee.
7 Although the parties refer to “independent medical examinations” or “IMEs,” “that appellation
is a euphemistic term of art.” Micheli v Mich Auto Ins Placement Facility, 340 Mich App 360,
364 n 3; 986 NW2d 451 (2022). In reality, “an IME involves obtaining a second opinion from a
doctor who is entirely selected and paid for by an insurance company, rendering the
‘independence’ of the examination somewhat questionable.” Id. Accordingly, this opinion will
refer to the medical examinations defendants ordered in this litigation as “defense medical
examinations” or “DMEs.” See, e.g., Muci v State Farm Auto Ins Co, 478 Mich 178, 182; 732
NW2d 88 (2007).
8 A mild form of depression that has lasted for at least two years at the time of diagnosis. See
Johns Hopkins Medicine, Dysthymia <https://www.hopkinsmedicine.org/health/conditions-and-
diseases/dysthymia> (accessed September 16, 2025).

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She received physical therapy for her neck and back pain and chiropractic care for her neck pain.
She also suffered from anxiety due to the crash and underwent therapy to address it. Records from
a May 26, 2021 medical appointment indicate Carolina referenced the October 2020 collision and
that she has been seeing a specialist for her resulting headaches and back pain, “but states that she
is doing well and denies any concern about this today.” She was not actively receiving any medical
treatment in 2022. Regarding her ongoing back pain, Carolina testified at her deposition that:
I’ve learned to manage it. So if I’m not doing the activity [that causes me
pain], I’m not going to have the [pain]. So does that mean it[’]s gotten better? No.
Because if I do those activities, I’m going to be in pain.
So is it the same? Possibly. It[’]s probably the same. I just have to decide
okay, should I go for a run and risk it or work out and risk it?
So I can’t answer that question. I don’t know how to answer it rightfully.
Plaintiffs each testified at their depositions that their lives changed significantly following
the accident due to the impairments they sustained. Before the accident, the Oganyan family would
drive long distances to hockey tournaments, vacation or to visit family and friends, but afterwards
this family travel has been significantly limited, and they either do not travel, fly, do not travel
together, or only attend local events.
Carolina testified that she now has anxiety and panic attacks about driving or even being a
motor vehicle passenger. She is additionally unable to focus on her work and it affects her
productivity at work (which she expects to result in lower bonuses due to lower production). She
can no longer run continuously9 and is limited in her ability to take care of her chickens and garden
(which are two of her favorite recreational activities) because of the severe pain she suffers after
doing so. She is irritable and argues with Vaag because things need to be done around the house
(such as yardwork and trimming trees on their property), but he can no longer do them due to the
pain he would likewise endure as a result of the injuries he sustained in the subject collision, and
this causes ongoing emotional strain. Carolina has additionally had to stop home-schooling her
children due to her ongoing vision problems from the collision.
Vaag testified that, as a result of the impairments he suffered from the collision, in addition
to his inability to participate in and enjoy his children’s recreation hockey as he once did because
of issues with driving or sitting for long periods of time, he has likewise been unable to participate
in his own recreational hockey due to his knee problems. While he once enjoyed yardwork and
maintaining his property, he now struggles to do so due to the neck and back pain that would result,
specifically mentioning that he had to hire people to trim the trees and maintain the gravel
driveway. His trouble sitting for long periods of time and focusing has likewise negatively affected
his productivity and ability to work, which he anticipates will ultimately have detrimental financial
consequences.
9 Whereas she used to regularly run 2-5 miles, now she limits that activity to a combination of
walking and running for perhaps 2 miles (and still suffers pain from doing this).

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II. PROCEDURAL HISTORY
Black Tiger is a Michigan company based in Sterling Heights and Baba also resides in
Michigan. On April 28, 2021, plaintiffs filed their complaint against defendants in Michigan. On
April 28, 2023, defendants moved for summary disposition pursuant to MCR 2.116(C)(10). While
defendants’ motion recited the general law for recovery of noneconomic damages in a third-party
automobile negligence case, their actual argument for summary disposition of this claim focused
solely on the third prong of the test for a compensable threshold injury set forth in McCormick v
Carrier, 487 Mich 180, 195; 795 NW2d 517 (2010), and later codified at MCL 500.3135(5): that
plaintiffs could not establish a question of material fact that any asserted impairment “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.” MCL 500.3135(5)(c);
see also McCormick, 487 Mich at 195, 200-209. While defendants’ motion did not focus on
whether Vaag and Carolina could establish the first two prongs of the test for a threshold injury,
i.e., that they suffered “(1) an objectively manifested impairment (2) of an important body
function,” they argued, generally, that plaintiffs could not prove that their injuries meet the
threshold requirements of the no-fault act, i.e., MCL 500.3135(5). Defendants argued that Vaag
and Carolina “continue to work without restrictions and are capable of continuing to home school
their children and go to activities with them” and that they “were not disabled for any duration of
time after the accident and did not require any restrictions.” Defendants argued that “plaintiff’s
lifestyle, as evidenced by their own testimony, limited treatment, and ability to work, play sports
and generally live their lives in the same manner and without ANY restrictions demonstrates that
summary disposition is appropriate.” (Emphasis omitted).
In response, plaintiffs argued that “[t]heir injuries easily exceed the threshold requirement
as their medical treatment alone speaks volumes as to how their lives have been impacted by the
crash.” The response set forth plaintiffs’ injuries, and provided a fourteen-page itemization of the
treatment they have received for those injuries. The response attached medical records supporting
the injuries and treatments received, including Vaag’s 2021 surgery on his right knee, left knee
pain and later diagnosis of a meniscal tear requiring surgery, ongoing pain for months after the
accident, ongoing post-concussion syndrome and posttraumatic headaches for months after the
accident, and injections to the right knee, back and head; and likewise including Carolina’s
ongoing post-concussive, neurological symptoms (including headaches, anxiety and vision issues),
as well as ongoing neck and back pain, for months following the accident. Defendants filed no
reply brief.
At the summary disposition motion hearing, defense counsel contended plaintiffs’ claim is
that, due to “threshold type injuries” they sustained, “they can’t live their life in the same manner
as prior to the accident, . . . the facts of this case, when looking at the objective medical evidence
shows otherwise.” The trial court directed defense counsel to address the concussions sustained
by Vaag and Carolina in the collision. Defense counsel then claimed, based upon its neurologist’s
DME reports, that there was no objective finding of any neurological issues, and that the defense
neurologist found no causal connection between the accident and any claim of concussion as to
Vaag. Plaintiffs’ counsel noted Vaag was diagnosed with concussion with mild cognitive
impairment, and acute posttraumatic headache on November 18, 2020, and that Carolina had a
similar diagnosis. While defense counsel claimed its expert questioned the treating neurologist’s

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methodology, the trial court acknowledged the question of fact created by the two physicians
reaching different diagnoses.10
Defense counsel contended that both Vaag’s and Carolina’s “orthopedic and neurology
[DME] reports show minimal injury that is not equivalent to a threshold injury.” But evidence is
viewed in the non-movant’s favor, and what defense counsel may subjectively contend to be
“minimal injury” does not address whether each plaintiff presents a genuine issue of material fact
as to whether they suffered an objectively manifested impairment of an important body function
or whether that impairment affects plaintiffs’ general ability to lead their normal lives.
McCormick, 487 Mich at 195; see also MCL 500.3135(5).
Plaintiffs’ counsel referenced Vaag and Carolina’s deposition transcripts, which were
attached to defendants’ motion for summary disposition, and other record evidence in arguing that
each impairment each plaintiff suffered, when viewed in the light most favorable to plaintiffs,
creates questions of fact on the issue of whether they meet the threshold requirements of MCL
500.3135(5)(c). Plaintiffs’ counsel argued Vaag’s ability to lead his normal life was affected by
the impairments resulting from his concussion with cognitive impairment, neck and back injuries,
and knee injuries (or aggravation of preexisting conditions), and that this was likewise the case as
to the impairments resulting from Carolina’s concussion with cognitive impairment, neck and back
injuries (or aggravation of preexisting conditions). Vaag’s concussion and cognitive impairment
affected his memory, concentration, ability to sleep, and his frequent headaches were almost
unbearable (9 out of 10 pain). With his right knee pain, he was barely able to walk the week before
that surgery, and he limited himself to shorter distance drives and did not take the family on the
long trips that were regular events before the collision because it was no longer safe, comfortable
or enjoyable to do so. Further, plaintiffs’ could no longer maintain their home in the manner they
did prior to the accident, were having their cleaning lady come 2-3 times a month (whereas before
she only came monthly) and likewise had to hire people to maintain their yard and driveway. Also,
Carolina has become more easily overwhelmed and breaks down more often as a result of her
concussion. Plaintiffs’ counsel also noted Vaag and Carolina’s deposition testimony that, due to
the impairments they suffered, they were no longer able to homeschool their children (which they
had done before the accident) which was a significant lifestyle change.
The trial court took the matter under advisement and subsequently issued its July 3, 2023
opinion and order granting defendants’ motion for summary disposition. The trial court found:
Plaintiffs have presented insufficient evidence to show that Vaag suffered an
objectively manifested impairment of his head, as there is no diagnostic
confirmation of any self-reported impairment. Although a nerve block was
performed, there is no indication in the record that this was related to the motor
vehicle accident. The medical records regarding Vaag’s knee surgeries do relate
back to the motor vehicle accident, so genuine issues of material fact remain
10 No evidence was presented to support the claim that the treating neurologist’s testing was not
reliable and notably the defense expert diagnosed both Vaag and Carolina as having sustained
“traumatic brain injury.”

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regarding whether Vaag’s knee surgeries were objectively manifested impairments
caused by the subject accident.
As to Carolina, the trial court acknowledged her medical records reflecting ongoing issues
with blurry, altered vision that arose following the collision alongside acute posttraumatic
headaches and that a December 1, 2020 MRI reflected “soft findings for benign intracranial
hypertension.” It nonetheless found that
[w]hile Carolina did undergo an MRI which revealed some impairment in her brain,
there is no indication in the record that this condition was related to the motor
vehicle accident. Regarding the low back pain, diagnostic testing reflected no
radiculopathy or neuropathy which could be objectively observed. With regard to
Carolina’s chronic neck and back pain, while objective testing reflect[s] a
herniation and extrusion, there is no evidence presented showing how these
conditions impaired Carolina. An injury alone is insufficient to survive summary
disposition.
As to both Vaag and Carolina, the trial court dismissed any injuries or impairments for which there
was any evidence of a preexisting condition, failing to consider evidence of the collision’s
aggravation of such preexisting condition as affecting their general ability to lead their normal
lives. The trial court found plaintiffs “have presented no evidence whatsoever regarding any
change in their ability to lead their normal lives. It is undisputed that Vaag and Carolina have been
able to continue work without interruption . . . .” It concluded that plaintiffs had not demonstrated
that they suffered a serious impairment of a bodily function, and thus, their claims were dismissed.
On July 26, 2023, plaintiffs filed a motion for reconsideration of the trial court’s opinion
and order, noting that it was obliged to make its decision on the entire record, and that it appears
to have overlooked medical evidence regarding plaintiffs, as well as their deposition transcripts,
which were attached to defendants’ motion. The motion itemized many ways in which the
plaintiffs’ deposition transcripts evidence how the impairments they suffered affected their general
ability to lead their normal lives. This included Vaag now being unable to maintain his yard,
participate in recreational hockey, and post-concussive disorder issues with memory, mood
swings, focus, and headaches. It further included Carolina now being unable to take care of her
chickens and garden or homeschool her children; suffering from anxiety issues that were not
present pre-crash, short-term memory issues, difficulty reading and other vision issues; and her
ability to engage in recreational running being materially affected. This additionally included the
entire family now missing out on children’s hockey tournaments and vacation and other travel that
they used to attend together via long drives. With regard to objectively manifested impairments,
in addition to Vaag’s knees, the motion additionally noted that the record shows plaintiffs suffered
concussions as a result of the crash, and whether those neurological injuries rose to the level of a
serious impairment of body function presented a fact question for the jury’s resolution.
The trial court denied plaintiffs’ motion for reconsideration, stating they “presented
evidence which suggests that, at most, they have concussions,” and yet found that this does not
support their claims that their head injuries were objectively manifested. As to the third prong of
the serious impairment analysis, it acknowledged plaintiffs’ deposition testimony reflecting

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“changes attributable to the accident,” but that it was “not sufficient to overcome the lack of
evidence regarding objectively manifested impairments.” Plaintiffs’ appeal followed.
III. STANDARD OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo. El-
Khalil v Oakwood Healthcare Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). A motion under
MCR 2.116(C)(10) examines the factual sufficiency of a claim. Id.
Under MCR 2.116(G)(3), “[a]ffidavits, depositions, admissions, or other documentary
evidence in support of the grounds asserted in the motion are required (a) when the grounds
asserted do not appear on the face of the pleading or (b) when judgment is sought based on subrule
(C)(10).”
A motion under subrule (C)(10) must specifically identify the issues as to which
the moving party believes there is no genuine issue as to any material fact. When a
motion under subrule (C)(10) is made and supported as provided in this rule, 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. If the adverse party
does not so respond, judgment, if appropriate, shall be entered against him or her.
[MCR 2.116(G)(4).]
If a party moving under MCR 2.116(C)(10) fails to properly present or support its motion for
summary disposition, the nonmoving party has no duty to respond and the trial court should deny
the motion. See Meyer v Center Line, 242 Mich App 560, 575; 619 NW2d 182 (2000); MCR
2.116(G)(4).
When reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a
court must examine the pleadings, affidavits, depositions, admissions, and any other documentary
evidence submitted by the parties and, considering both direct and circumstantial evidence and
drawing all reasonable inferences in the light most favorable to the nonmoving party, determine
whether a genuine issue of material fact exists. MCR 2.116(G)(5); Maiden v Rozwood, 461 Mich
109, 120; 597 NW2d 817 (1999); Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App
482, 485-486; 502 NW2d 742 (1993).
A (C)(10) motion for summary disposition may only be granted if there is no genuine issue
of material fact. El-Khalil, 504 Mich at 159. There is a genuine issue of material fact when “the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d
468 (2003).
IV. ANALYSIS
Plaintiffs contend the trial court erred in holding, as a matter of law, that neither of them
sustained serious impairment of body function as a result of their minivan being rear-ended by the
semi-trailer truck and granting summary disposition to defendants pursuant to MCR 2.116(C)(10).
We agree.

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Michigan’s no-fault act, MCL 500.3101 et seq.,11 allows for insured people to recover from
their insurers for certain economic losses caused by motor vehicle accidents, regardless of fault.
McCormick, 487 Mich at 189. This act also limits tort liability. Id. Liability for noneconomic
losses arising out of the “ownership, maintenance or use of a motor vehicle” is limited to when the
“injured person has suffered death, serious impairment of body function, or permanent serious
disfigurement.” MCL 500.3135(1). “[S]erious impairment of body function” is defined as an
impairment that meets the following three 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 accident. [MCL 500.3135(5).]
An objectively manifested impairment “is evidenced by actual symptoms or conditions that
someone other than the injured person would observe or perceive as impairing a body function.”
McCormick, 487 Mich at 196. When considering this first prong of the serious impairment
analysis, the focus is on “whether the impairment is objectively manifested, not the injury or its
symptoms.” Id. at 197. For a plaintiff’s impairment to be objectively manifested, there must be
“evidence establishing that there is a physical basis for their subjective complaints of pain and
suffering.” Id. at 198 (internal quotations marks and citation omitted). Medical testimony is
generally, but not always, required to show an objectively manifested impairment. Patrick v
Turkelson, 322 Mich App 595, 607; 913 NW2d 369 (2018).
“[T]o ‘affect’ the person’s ‘general ability’ to lead his or her normal life is to influence
some of the person’s power or skill, i.e., the person’s capacity, to lead a normal life.” McCormick,
487 Mich at 201. This is a subjective, person-specific analysis that examines what a normal life
was for the person who was injured. Id. at 202. Their ability to live their normal life must only
be affected, not completely destroyed. Id. There is no requirement that the impairment last a
certain period of time. Patrick, 322 Mich App at 607. “[T]here is no quantitative minimum as to
the percentage of a person’s normal manner of living that must be affected.” McCormick, 487
Mich at 203.
11 The no-fault act was modified extensively in 2019. All cited portions of the no-fault act are
current.

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The issues of whether the injured person has suffered serious impairment of
body function or permanent serious disfigurement are questions of law for the court
if the court finds either of the following:
(i) There is no factual dispute concerning the nature and extent of the
person’s injuries.
(ii) There is a factual dispute concerning 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. [MCL 500.3135(2)(a).]
The Legislature additionally created a provision addressing situations where a plaintiff has
sustained a closed-head injury, providing:
However, for a closed-head injury, a question of fact for the jury is created if a
licensed allopathic or osteopathic physician who regularly diagnoses or treats
closed-head injuries testifies under oath that there may be a serious neurological
injury. [MCL 500.3135(2)(a)(ii).]
But the language of section 3135 does not indicate that this “closed-head injury exception” is the
only manner in which a plaintiff who has suffered a closed-head injury may establish a question
of material fact precluding summary disposition. Churchman v Rickerson, 240 Mich App 223,
232; 611 NW2d 333 (2000). As Churchman explains, “[i]n the absence of an affidavit that satisfies
the closed-head injury exception, a plaintiff may establish a factual question under the broader
language set forth in subsection 3135(2)(a)(i) and (ii).” Id. (noting that “a trial court cannot
determine whether a plaintiff has suffered a serious impairment of body function and enter
judgment in favor of a defendant as a matter of law without first making the factual findings
required under subsections 3135(2)(a)(i) or (ii)”). Accordingly, if there is a dispute about the
“nature and extent” of a plaintiff’s closed-head injury and if that dispute is material to the
determination of if they suffered a serious impairment of body function, this establishes a factual
question regarding a closed-head injury in the absence of an affidavit that satisfies the closed-head
injury exception. Id.
In its opinion and order, the trial court found that the parties “did not dispute the nature and
extent of [plaintiffs’] injuries.” On the contrary, defendants’ motion, by way of the orthopedic and
neurologic DMEs of both plaintiffs and otherwise, contended that both Vaag’s and Carolina’s
“orthopedic and neurology [DME] reports show minimal injury that is not equivalent to a threshold
injury”; contended that many of plaintiffs’ asserted injuries were preexisting in nature, unrelated
to the accident (such as Vaag’s left knee injury), or both (such as Vaag’s right knee, back and neck
injuries and Carolina’s back and neck injuries); and they likewise failed to acknowledge or address
any aggravation of such injuries to the extent such injuries may in fact have been preexisting.
Also, defendants contended plaintiffs’ neurological injuries, including concussions, were not
causally connected to the accident and were not objectively manifested. Accordingly, viewing the
facts concerning the nature and extent of plaintiffs’ injuries in their favor we look to whether the
disputes are material to whether they have suffered a serious impairment of body function.

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If there is a material factual dispute regarding the nature and extent of the person’s
injuries, the court should not decide the issue as a matter of law. Notably, the
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.” [McCormick,
487 Mich at 193-94, quoting Black’s Law Dictionary (8th ed.) (defining “material
fact”).]
A. OBJECTIVELY MANIFESTED IMPAIRMENTS
Plaintiffs argue that the trial court should not have considered whether their impairments
were objectively manifested because defendants did not argue this first prong of the serious
impairment analysis as a basis for summary disposition in their motion. A review of defendants’
brief confirms that most of the analysis contained therein is devoted to defendants’ argument
regarding the third prong of the statute. However, defendants did, in fact, rely upon MCL 500.3135
as a whole, i.e., they argued that plaintiffs’ respective “injuries [sic: impairments] do not rise to
the statutory threshold required by MCL []500.3135.” That said, we need not decide whether that
extremely general argument was sufficient to provide notice to plaintiffs that the first prong of the
statute would be a basis on which defendants were seeking summary disposition from the trial
court, because we find that ample evidence was presented to the trial court establishing a genuine
issue of material fact as to whether plaintiffs each suffered objectively manifested impairments.
Again, the trial court found that Carolina failed to establish any genuine issue of material
fact with regard to whether she sustained any objectively manifested impairment from the subject
collision. It also found Vaag had not shown a genuine issue of material fact as to objectively
manifested impairments related to the head, neck and back injuries he sustained, but that there was
a material fact question whether his right and left knees each demonstrated objectively manifested
impairments caused by the subject accident.
The trial court found the impairment to Vaag’s right knee was objectively manifested by a
statement of medical necessity for surgery thereon by Kyle Stuart, MD stating that Vaag had pain
and dysfunction for twelve months following the collision, which failed to improve with
conservative non-operative management. Further, after his right knee surgery, Vaag’s diagnoses
were “right knee loose body and chondromalacia and complex lateral meniscal tear.” As to his
left knee, the trial court noted a Foundation Physicians Group note recommending arthroscopy for
meniscal tearing, which observed that Vaag complained of pain at the medical center walk-in clinic
the day following the accident and “the pain has progressively gotten worse over the past two years
to the point of daily pain and instability as well as mechanical signs” and “the patient cannot squat
without significant pain, cannot walk stairs.”
Regarding Vaag’s back and neck issues, we note that he likewise complained of this pain
at the walk-in clinic the day following the accident, and continued to indicate he has been “having
constant neck and back pain” since that time, with radiation of pain down to his feet, and no relief
provided by lumbar epidural steroid injections administered on February 25, 2021 and April 15,
2021 and a cervical epidural steroid injection on March 18, 2021. He candidly admitted that he
may have experienced some neck pain in the past, had ongoing mild lower back pain for a number
of years (for which he was not under any active treatment prior to the subject accident), and he
was diagnosed with a “[m]ild degenerative disc and facet disease of the lower lumbar spine” in

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2012. However, at a February 2019 doctor’s appointment, no issues were noted with Vaag’s head,
back, neck, or knees. MRIs conducted after the accident confirmed herniated discs at L3-L4, L4-
L5, and L5-S1; impinged nerve roots at L4, L5, and S1; and a disc osteophyte complex at levels
C3-C4, C4-C5, and C5-C6. Although his doctor recommends operative intervention to his lumber
spine, the record reflects that he has thus far declined it. At a July 8, 2021 evaluation, Vaag could
only walk or stand for 5 minutes before needing to rest due to constant back pain that radiates to
his legs and bottom of his left foot and he had problems with balancing and tripping. The DME
claimed these were degenerative changes, and that Vaag suffered “lumber and cervical strain or
sprain” for which typical treatment would be six to eight weeks of physical therapy and
medications. However, contrary to the trial court ruling, properly viewing this evidence in the
light most favorable to the non-movant, the neck and back pain arising just after the rear-end
collision resulting in an inability to walk or stand for more than 5 minutes at a time and balance
and tripping issues, establishes questions of material fact as to the origin of Vaag’s impairment,
and aggravation of the preexisting, previously asymptomatic neck and back conditions. “[T]he
aggravation or triggering of a preexisting condition can constitute a compensable injury.” Fisher
v Blankenship, 286 Mich App 54, 63; 777 NW2d 469 (2009), citing Wilkinson v Lee, 463 Mich
388, 394-395; 617 NW2d 305 (2000).
We disagree with the trial court and find that, viewing the direct and circumstantial
evidence in the non-movant’s favor, there is a question of material fact whether Vaag suffered an
objectively manifested impairment of his head and brain. In the November 18, 2020 neurology
examination, Vaag was diagnosed as having suffered a concussion with a loss of consciousness
for 30 minutes or less and meeting the criteria of post-concussion syndrome, acute posttraumatic
headaches, and a mild cognitive impairment diagnoses. This assessment was based in part on
Vaag having a Montreal Cognitive Assessment score of 25/30, where a score of 18-25 points
typically suggests mild cognitive impairment and a score of 26-30 points typically suggests normal
cognitive performance.12 Additionally, following months of acute posttraumatic headaches that
first manifested shortly after the subject collision, Vaag was administered a bilateral trigeminal
nerve block injection at the base of his skull. The May 6, 2021 procedure note assessed the primary
purpose of the procedure was to address sequela of his concussion with loss of consciousness, i.e.,
his post-concussion syndrome, ongoing acute posttraumatic headaches and mild cognitive
impairment.
In denying their motion for reconsideration, the trial court rejected plaintiffs’ reliance on
Orvis v Moore, unpublished opinion of the Court of Appeals, issued December 22, 2022 (Docket
No. 358646), finding the present case’s facts were distinguishable from Orvis’s finding that
documents from medical providers who diagnosed that plaintiff with “closed-head injury,
concussion, and post-concussion syndrome” were sufficient to demonstrate objectively manifested
impairment. However, we do not perceive any meaningful basis for distinguishing Vaag’s
12 <https://mocacognition.com/faq/> (accessed September 16, 2025).

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evidence from what was present in Orvis and are persuaded by that decision’s reasoning.13
Specifically, this Court stated in Orvis:
Although plaintiff did not present medical testimony establishing a closed-head
injury diagnosis, she submitted to the trial court documents from various medical
providers who diagnosed her with a closed-head injury, concussion, and post-
concussion syndrome. Such documentation demonstrated the existence of a
genuine issue of material fact regarding whether plaintiff sustained an objectively
manifested impairment. [Orvis, unpub op at 4-5, citing McCormick, 487 Mich at
198; MCL 500.3135(2).]
Likewise, in the instant case, record evidence establishes that a medical provider diagnosed him
with a closed head injury and concussion, which establishes another genuine issue of material fact
as to whether he sustained an additional objectively manifested impairment as a result of his brain
injury.
We likewise find a question of material fact as to whether Carolina suffered an objectively
manifested impairment of her head and brain function based on her “actual symptoms [and]
conditions that someone other than the injured person would observe or perceive as impairing a
body function,” including the evidence of concussion-related vision issues. McCormick, 487 Mich
at 196. The medical evidence included the November 18, 2020 neurology examination, wherein
Carolina was diagnosed as having suffered a concussion with loss of consciousness and sequela, a
mild cognitive impairment, insomnia, acute posttraumatic headaches, a diffuse TBI and sequela,
and visual disturbances, among other conditions.
B. ABILITY TO LEAD A NORMAL LIFE
Turning to whether plaintiffs’ general ability to lead their normal lives have been affected
by the respective impairments of body function they sustained, we find that the deposition
testimony of plaintiffs, as well as the medical record evidence contained in the lower court record,
when considered as a whole, create questions of material fact. As indicated in earlier sections of
this opinion, Vaag presented extensive testimony about the affect these impairments had upon his
ability to lead his normal life, including the above referenced memory, concentration, and sleep
issues, having to spend time suffering through chronic headaches, being barely able to walk prior
to surgery, his inability to drive long distances or take his family on their normal travels, being
unable to squat, having difficulty with stairs, being unable to sit for extended periods of time, being
unable to participate in recreational hockey, and the issues with house maintenance (both inside
and outside of the home). As for Carolina, she likewise suffered from an inability to perform the
household maintenance described above, suffered from breakdowns, could no longer run
continuously, was unable to perform activities without blurry vision (and had to start wearing
glasses at all times), was unable to read, had difficulty focusing, and was unable to homeschool
13 Unpublished decisions of this Court are not binding under the rule of stare decisis, but may still
be considered as having instructive or persuasive value. Youmans v Charter Twp of Bloomfield,
336 Mich App 161, 217; 969 NW2d 570 (2021), citing MCR 7.215(C)(1).

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her children. All of that testimony should have been considered by the trial court in ruling on the
motion for summary disposition. MCR 2.116(G)(5).
In addition, plaintiffs rely upon medical record evidence demonstrating that they
underwent extensive treatment as a result of their injuries. The record before us demonstrates that,
after the accident, Vaag spent a significant amount of time attending a large number of medical
appointments, attending physical therapy, and undergoing testing and diagnostic studies.
Likewise, Carolina’s records show that she likewise spent a significant amount of time after the
accident attending rehabilitation, undergoing testing and diagnostic studies, as well as other
medical appointments. Because the evidence indicates that their normal lives, prior to the accident,
did not include devoting such a significant amount of time to attending medical appointments,
their extensive time spent doing so must be considered when determining whether each plaintiff’s
general ability to lead his or her normal lives was affected by their impairments. Thus, the fact
that plaintiffs had to rearrange so much of their lives to attend this treatment should have been
considered by the trial court.
Considering this evidence as a whole, as to each plaintiff, genuine issues of material fact
exist as to whether the respective impairments that they suffered as a result of the accident affected
their general ability to lead their normal lives.
V. CONCLUSION
We find that there are factual disputes concerning the nature and extent of the plaintiffs’
respective injuries that are material to the determination whether each of them has suffered a
serious impairment of body function. MCL 500.3135(2)(a). Thus, we find that the trial court erred
by granting defendants’ motion for summary disposition. Accordingly, we reverse the trial court’s
grant of summary disposition for the reasons stated herein and remand for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ Allie Greenleaf Maldonado
/s/ Randy J. Wallace

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