Michigan Court of Appeals; Docket #238824; Unpublished
Judges Meter, Talbot and Borrello; 2-1 (Judge Talbot dissenting); per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era - 1996-2010) [3135(7)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious body function, the Court of Appeals originally affirmed the trial court’s judgment for the plaintiff following a jury trial [RB #2429]. The Michigan Supreme Court remanded the matter for reconsideration in light of Kreiner v Fischer [RB #2428]. On remand, the Court of Appeals again affirmed, finding that plaintiff’s injuries affected his general ability to lead his normal life.
In this case, the plaintiff suffered tearing of the head of his right biceps tendon as well as multiple abrasions and contusions to his right lower shin and ankle, right wrist abrasions and contusions, and an injury to his lower spine. As a result of the injuries, plaintiff was unable to work for two months. Although many of his injuries healed, plaintiff testified he could no longer stream fish, pheasant hunt, hunt from a tree stand, or play softball. Plaintiff also testified he could no longer bow hunt because his biceps injury prevented him from pulling on the bow and holding it. His doctor corroborated this testimony, stating that the biceps injury caused plaintiff to lose about half his strength.
The court concluded these injuries met the serious impairment no-fault threshold. In so holding, the court stated:
“Indeed, [plaintiff-Terry Ream’s] injuries required him to wear a cast, and he missed two months of work. Although Terry returned to work after two months with no physician-imposed restrictions, [his doctor] specifically noted during his deposition that, when Terry returned to work, his boss was planning to limit him at first to ‘driving a truck’ because of his injuries. Moreover, Terry’s injuries prevented him, at least as of the time of trial, from engaging in numerous recreational activities that he had previously enjoyed, and [his doctor] testified that Terry will require anti-inflammatory medication ‘indefinitely.’ Further, Terry’s biceps injury is not amenable to complete repair without risky surgery, and rehabilitation was or is necessary in order for Terry to regain ‘most of the strength’ in his arm. Viewed as a whole, the circumstances demonstrate that Terry’s ‘general ability to conduct the course of his . . . normal life’ has been affected, especially considering the significance that outdoor activities played in Terry’s life before the accident occurred.”
The court then referred to Kreiner footnote 17, in which the Supreme Court said self-imposed restrictions do not establish the existence of a residual impairment, and noted that even though the plaintiff’s doctor in this case did not restrict him from outdoor activities, the doctor did give testimony that corroborated plaintiff’s testimony regarding his physical restrictions. In this regard, the court stated:
“We note that the Kreiner Court stated, in a footnote, that ‘[s]elf-imposed restrictions, as opposed to physician-imposed restrictions, based on real or perceived pain do not establish’ the existence of any residual impairment caused by an injury. . . . However, in analyzing the situation of one of the plaintiff’s in Kreiner, the Court referred to testimony by the plaintiff – testimony involving residual impairments – that apparently was not corroborated by a physician. Accordingly, the meaning of the footnote in Kreiner is not entirely clear to us. At any rate, while there was no testimony in the instant case that Terry Ream’s physician had restricted him from various outdoor recreational activities, the physician did provide testimony that tended to corroborate Terry’s recreational restrictions. We continue to hold that Terry Ream’s injuries satisfied the no-fault threshold.” (Emphasis in original)
The court also noted that plaintiff’s injuries differed from the plaintiff’s injuries in Straub v Collette [RB #2428]. In Straub, the plaintiff testified at his deposition that he was 99 percent back to normal. Here, the plaintiff testified at trial that he was still unable to engage “in activities he once enjoyed.” The court further noted that plaintiff’s injuries differed from the plaintiff’s injuries in Kreiner. In Kreiner, the plaintiff reduced his working day from eight to six hours. Although he could no longer hunt rabbits because he could only walk about half a mile without resting, he could still hunt deer. The Supreme Court compared the Kreiner plaintiff’s preimpairment life to his postimpairment life and found that it was not so different as to affect his general ability to lead his normal life. In ruling for the plaintiff in this case, the court stated:
“Considered against the backdrop of his preimpairment life, Terry Ream’s postimpairment life is sufficiently different such that his ‘general ability’ to conduct the course of his normal life has been affected.”
Judge Talbot dissented, reasoning that a comparison between the plaintiffs in Kreiner and Straub compelled a finding that the plaintiff’s injuries in this case did not affect his general ability to lead his normal life because he was able to work full time without restrictions. Although plaintiff missed two months of work, the plaintiff in Straub was also off work for two months, which, according to the Supreme Court, is a “‘temporary limitation’ that did not meet the requirement.” And, although plaintiff claimed that residual impairments prevented him from participating in certain recreational activities, plaintiff’s doctors did not place him on ongoing restrictions. Therefore, Talbot stated, “under the holding of Kreiner, supra, Ream did not meet the threshold for recovery for noneconomic damages under the no-fault act.”