Michigan Court of Appeals; Docket #264016 and #264017; Unpublished
Judges Owens, Kelly, and Fort Hood; unanimous; 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)]
Permanent Serious Disfigurement Definition [3135(1)]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious body function,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 reversed the trial court order denying defendants’ motion for summary disposition on plaintiffs’ claim for non-economic losses. Plaintiff Ziad Bazzi and his brother, Bilal Bazzi, were injured in an motor vehicle accident. Ziad Bazzi sustained a fracture to his right shoulder which caused him to miss two and a half months of work. Bilal Bazzi sustained a dislocated right shoulder with a Hill Sachs fracture as well as a T6 compression fracture for which he wore a sling and a Jewett brace. In reversing, the Court of Appeals found that neither plaintiff’s injuries affected his general ability to lead his normal life. As to Ziad Bazzi, the court noted that he was able to perform all his activities of daily living within two months after the accident. It also noted that although Ziad Bazzi missed two and a half months of work, he returned to work without restrictions and, although he alleged that he could no longer lift weights, jet ski, play soccer, paint or swim, his medical records indicate that his injury had healed and that he had full range of motion. In this regard, the court stated:
“While he missed two and one-half months of work, he was able to return to work in March 2004 without restrictions, and he used his right arm for self-care activities as early as two months after the accident. Despite his claim that he continued to be limited by his shoulder injury, his medical records reflected that the fracture healed well and, as of February 2005, his range of motion was ‘full.’ Although Ziad stated he was no longer able to participate in lifting weights, throwing things, jet skiing, soccer, painting, and swimming, he was not restricted from these activities by a physician; rather, these restrictions were self-imposed. Self-imposed restrictions, based on real or perceived pain, are insufficient to establish an impairment. . . . Therefore, even when viewed in a light most favorable to Ziad, the evidence does not raise a material fact whether his injuries affected his general ability to lead a normal life.”
As to Bilal Bazzi, the court noted he returned to work as a medical resident within a few days after the accident. And, even though he testified that he could not hold his patients in the same manner as he did before his injury, there was no indication that this interfered with his work. In addition, even though his doctors recommended that he receive physical therapy, he did not because he was too busy. Further, any restrictions on activities such as soccer, basketball, fishing and swimming were self-imposed. In this regard, the court stated:
“Bilal was able to return to work as a medical resident a few days after the accident, albeit wearing a sling and a Jewett brace. Moreover, he admitted that his doctors recommended physical therapy, but he did not regularly attend because he was too busy with his medical residency and could perform the physical therapy by himself at home. . . . Bilal also claimed his injuries affected his ability to do his job because he could not ‘hold’ his patients like he used to without the risk of dislocating his shoulder again. . . . Nevertheless, . . . there was no evidence this alleged limitation caused him to miss work or be disciplined. . . . Finally, while Bilal stated that like his brother he was no longer able to participate in soccer, basketball, fishing, and swimming, these restrictions were also self-imposed. Hence, there was no genuine issue of material whether his injuries affected his general ability to lead a normal life.”
Finally, the court found that Bilal Bazzi’s facial scar was “hardly discernable” and, therefore, held that defendant was entitled to summary disposition on plaintiff’s claim for permanent serious disfigurement. In this regard, the court explained: “. . . [A] ‘hardly discernable scar’ below the lip is not the type of injury for which the Legislature intended to allow recovery when it established the threshold of permanent serious disfigurement. . . . Because the scar was not readily noticeable, it was not a permanent serious disfigurement for purposes of meeting the no-fault threshold, and the trial court should have granted summary disposition on this issue. . . .”
