January 22, 2018
In Patrick v Turkelson, ___ Mich App ___; ___ NW2d ___ (1/16/18), a published decision by the Court of Appeals, the Court reversed the trial court’s order determining the Plaintiff did not suffer a serious impairment of body function and, instead, determined that an issue of material fact exists regarding whether Plaintiff’s mild high frequency sensorineural hearing loss and tinnitus constitute a serious impairment of a body function.
When Plaintiff was involved in a motor vehicle accident, the air bags deployed, including a side curtain airbag above the driver’s side door which she claims hit the side of her face and left ear. At the scene of the accident, the Plaintiff reported that the sound in both of her ears was muffled and that her left ear was ringing. Following the accident, Plaintiff was examined twice by an audiologist. An audiogram test “revealed hearing to be within normal limits at 250-4000Hz with a slight dip at 6 and 8000 Hz.” Plaintiff’s word recognition was “excellent bilaterally” and her speech recognition was in accordance with her other testing.
Plaintiff then was examined twice by Dr. Heidenreich, a specialist in otology and neurotology. Dr. Heidenreich determined that Plaintiff had a “mild high frequency sensorineural hearing loss in both ears but with excellent word recognition scores”. Dr. Heidenreich testified that tinnitus was a “phantom sound that somebody perceives”. Dr. Heidenreich testified that components of an audiogram required a patient to acknowledge whether or not the patient heard a sound that was present to the patient and acknowledged that this kind of testing relied on the patient “subjectively reporting what they heard.” She further testified that an audiogram includes objective components as well such as the movement of the eardrum and the acoustic reflexes.
Plaintiff testified that following the accident, she did not have trouble hearing people speaking during normal conversation but she had trouble hearing whispering. Before the accident, Plaintiff worked three days a week. After the accident she continued working three days a week until she had a second child at which point she started working one day a week. She attributed this change to caring for her small children and to road noise which she claimed made the ringing in her ears worse. Plaintiff testified she did not attend concerts as often or go hiking because of the ringing in her ears. She also claimed that the ear problems affected her ability to take care of her children because she was less patient. Plaintiff’s husband claimed she had difficulty communicating because she spoke too softly or too loudly.
The trial court concluded that Plaintiff had “not shown any objective manifestation of her subjective complaints of tinnitus or otherwise demonstrated any physical basis for those complaints.” The trial court further found that the hearing loss was “mild” and there was “not a manifestation of or physical basis for tinnitus”. Finally, the trial court concluded that there was “no indication that plaintiff’s general ability to live her normal life is affected by that mild hearing loss.”
With respect to whether this is an objectively manifested impairment, the Court of Appeals did not agree that because a subjective component to the hearing tests existed, Dr. Heidenreich’s conclusions were not evidence of an objectively manifested impairment. Instead, the Court found the fact that there exists a subjective component to the hearing test does not negate a finding that Plaintiff’s hearing loss could be an objectively manifested impairment. The Court concluded that an issue of fact exists as to whether Plaintiff’s hearing was impaired. The Court supported its conclusion with Dr. Heidenreich’s testimony as well as Plaintiff’s husband’s testimony in that Plaintiff had difficulties speaking too softly or too loudly and that he observed Plaintiff experiencing frustration over her own lack of awareness about the volume of her voice.
The Court then proceeded to conclude that there was conflicting evidence directly related to determining whether Plaintiff’s overall ability to lead her normal life was impacted by the alleged impairment and that this issue should be left to a jury to decide. Finally, the Court determined that summary disposition could not have been properly granted on causation grounds because there was a genuine issue of material fact on the current record regarding both the cause in fact and the legal cause of Plaintiff’s hearing loss.
This case appears to be the first case to examine whether mild hearing loss meets the statutory threshold to establish a serious impairment of body function.