Michigan Court of Appeals; Docket #248107; Unpublished
Judges Whitbeck, Griffin, and Borrello; 2-1 (Judge Griffin 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)]
Objective Manifestation Element of Serious Impairment (Kreiner Era: 1996-2010) [3135(7)]
General Ability / Normal Life Element of Serious Impairment (Kreiner Era: 1996-2010) [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unpublished 2-1 per curiam opinion decided after the Supreme Court’s opinion in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious impairment of body function, the Court of Appeals reversed a bench trial determination that plaintiff had not suffered a serious impairment of body function and concluded, to the contrary, that plaintiff had in fact established that his injury constituted a serious impairment of body function under the Kreiner analysis.
The plaintiff in this case sustained a severe hyperextension hyperflexion injury to his cervical spine as a result of a rear-end collision. Although plaintiff did not go to the hospital immediately after the collision, the next morning he was hardly able to move his neck and had an intense headache causing nausea. He then went to the emergency room, was x-rayed and given a soft cervical collar and medications and then released. Two (2) days later, plaintiff was seen by his physician who felt some swelling in plaintiff’s neck and a limitation of neck motion. X-rays were taken which revealed that plaintiff’s fourth and fifth cervical vertebra were “blocked” and that his fifth and sixth cervical vertebra were closer together than they should have been. Plaintiff was sent to a neurosurgeon who noted spondylitic facet degeneration in the cervical spine without radiculopathy or myelopathy. Plaintiff remained under the care of his personal physician who continued to note muscle spasms in the neck with range-of-motion limitations. Plaintiff’s doctor opined that plaintiff’s condition was permanent and that he would suffer increasing arthritis and neck pain for the rest of his life.
Plaintiff was subsequently sent to a neurologist who examined plaintiff and issued a recommendation that plaintiff should not continue to pursue his career as a welder because of the affect on his neck condition. The neurologist also treated plaintiff with occipital nerve block injections.
At trial, the testimony was that plaintiff had been a welder for 25 years and was very good at his job which was described as physically very demanding. Plaintiff was also an “outdoorsman” who participated in gardening, sports, hunting, snowmobiling and scuba diving after the accident which had now been significantly limited. In addition, testimony from plaintiff and his wife revealed that plaintiff’s sexual relationship with his wife had been dramatically affected by his neck injury.
In reversing the bench trial determination that plaintiff’s injury did not constitute a serious impairment of body function under the Kreiner decision, the Court of Appeals noted that for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis. With respect to this requirement, the court held that plaintiff had met his burden, inasmuch as “this court has held that muscle spasms or contractions are objective manifestations of injury. [Plaintiff’s physician] testified that he could feel [plaintiff’s] muscle spasms during his September, 2000 examination.” The court went on to note that plaintiff’s physician determined that plaintiff had demonstrable limited range-of-motion when attempts were made to manually move plaintiff’s head. In this regard, the court observed, “A plaintiff’s limited range of motion may be an objectively manifested injury if a doctor diagnosed it using a passive range of motion test. ‘Passive movement’ is defined as ‘the movement of a limb, or any part of the body, accomplished with the aid of another person (or a mechanical device), rather than by the use of the person’s own muscles.’ Because [plaintiff’s physician] diagnosed [plaintiff’s] limited range of motion by a passive test, it can properly be considered an objective manifestation of his injury.” The court also went on to note that plaintiff had experienced a straightening of the spine’s normal curvature or “lordosis,” which the court characterized as an objective manifestation of injury. The court also noted that it was not disputed that plaintiff’s injury affected an important body function, i.e., his cervical spine.
With regard to the requirement that the injury affect plaintiff’s general ability to lead a normal life, the court reviewed the five “non-exhaustive list of factors” set forth in the Kreiner decision and, with respect to these factors, the court stated:
“Behnke’s impairments consisted of tissue, muscle, and vertebral damage that caused him to suffer neck pain and intense headaches that were exacerbated by physical activity. While we recognize that these impairments do not render it impossible for Behnke to engage in most of his usual physical activities in the same way that, for example, the amputation of a limb or severe brain damage might have, the impairments did render it extremely painful to do so. In other words, while Behnke was not physically foreclosed from doing some activities, he was effectively foreclosed from doing many activities because they aggravated his injuries and caused intense pain. . . . The medical testimony indicated that surgery would not remedy Behnke’s injuries. . . . Dr. Graham concluded that the only available treatment for Behnke was chronic pain relief. . . . The trial testimony indicated that Behnke’s impairment had worsened, not improved, over the course of time, and would likely continue indefinitely. . . . Testimony indicated that Behnke’s residual impairments would continue to limit his activities. Dr. Graham testified that Behnke’s injury physically limited his career choices, and specifically stated that it would be ‘less aggravating’ to Behnke’s injuries if he would discontinue working as a welder. Dr. Zimmerman likewise indicated that welding could aggravate Behnke’s condition and cause it to become chronic. Finally, Dr. Anderson testified that she would not recommend that Behnke pursue his career as a welder because the ‘combination of the constant flexion position of the head’ and ‘the head gear that they need to wear’ ‘would most assuredly exacerbate the problem.’ . . . Behnke testified that he was unable to pursue his usual recreational activities, help maintain his mother’s motel, or engage in sexual intercourse without incurring painful headaches a significant amount of the time. . . . In a footnote, the Supreme Court indicated that ‘self-imposed restrictions, as opposed to physician-imposed restrictions, based on real or perceived pain do not establish this point,’ that is, the extent of residual impairment. Indeed, Auto Owners argues that Behnke has no physician-imposed restrictions and is able to work full time. In our view, however, this point is not dispositive. First, although Behnke’s doctors did not forbid him to return to his welding job, they did advise him against it. Second, if the salient question under the statute is whether Behnke’s injury affected his ability to lead his normal life, it makes little difference whether a doctor had forbidden him to return to welding or whether he was simply unable to do so because of debilitating headaches. In sum, while we are cognizant of the requirement that the underlying injury be objectively manifested, the statute does not indicate that the consequences of the injury must be objectively manifested. . . .
Dr. Graham testified that Behnke’s condition was likely permanent, and he expected Behnke to have ‘increasing arthritis and maintaining a painful neck syndrome probably the remainder of his natural life.‘ Bearing these factors in mind, we find that Behnke’s life changed substantially as a result of his injury. Before the accident, Behnke had been a professional welder for twenty-five years. Behnke described himself as an ‘outdoorsman’ who liked gardening, sports, hunting, snowmobiling and scuba diving. . . . After the accident, Behnke explained that physical activity caused him such excruciating headaches that they keep him ‘from doing anything whatsoever,’ and that when the headaches occur, he is extremely sensitive to light, sound, and touch, and only wants to ‘go somewhere dark, cold, and quiet and not move.’ Behnke testified that he would be unable to work as a welder in his present condition, and his doctors all agreed that working as a welder was inadvisable. . . . In our view, the case at bar is easily distinguishable from Straub. In Straub, the plaintiff suffered injuries to his non-dominant left hand and required a cast, surgery, and physical therapy. The plaintiff was able to resume all of his previous activities, including full-time work, within four months of the accident, although he remained unable to straighten his middle finger or to completely close his left hand. The plaintiff himself established that ‘he was ninety-nine percent back to normal by mid-January 2000.’. . . In the case at bar, by contrast, Behnke is not expected to recover from the effects of his injury, and the effects of that injury will limit his ability to engage in activities that require movement of the head and neck.
Whether the case at bar is distinguishable from Kreiner is a much closer question. . . . Here, by contrast, Behnke was required to miss several weeks of work because of his injuries. Although Behnke could eventually return to full-time work, unlike the plaintiff in Kreiner, he could not do so in the capacity in which he had worked before the accident. . . . Although Behnke is currently working full time, his job duties are limited to feeding lumber into a cutting machine.
Most importantly, in light of the testimony of both Behnke and his wife, we are unable to conclude that Behnke’s life, unlike that of the plaintiff in Kreiner, is ‘not significantly different than it was before the accident.’ The testimony indicated that whereas Behnke had been a successful welder, active outdoorsman, and an ‘energetic,’ ‘fun-loving’ husband, he is now unable to work as a welder or maintain his active lifestyle, which has caused him to become a frustrated and depressed person. Moreover, Behnke testified that his injuries had been ‘devastating’ to his marriage because his headaches increased during sexual intercourse, and he estimated that at least a third of the time he would have to stop ‘in the middle of making love.’ We are convinced that these changes have altered the course of his life, causing him to change from a generally active person who excelled at a skilled job to being a generally inactive person with an unskilled job. Considering the totality of the circumstances in this case, we hold that the trial court erred in concluding that Behnke did not suffer serious impairment of body function.”
Judge Griffin dissented, stating that, “This case involves a routine and highly ordinary cervical soft tissue strain, commonly known as a whiplash injury.” Judge Griffin disagreed that plaintiff’s injuries were objectively manifested, arguing that the Court of Appeals’ decision in Williams v Payne, 131 Mich App 403 (1984), decided during the Cassidy era, requires that an injury be subject to medical measurement in order for it to be objectively manifested. In this case, Judge Griffin argued that plaintiff’s headaches were not subject to medical measurement and, therefore, were not objectively manifested. He also disagreed that muscle spasms and range-of-motion limitations are objectively manifested impairments. Judge Griffin went on to state:
“I view the Supreme Court’s requirement of a ‘medically documented’ injury to indicate that the Court has concluded that the Legislature has overruled DiFranco v Pickard and reinstated the medical measurement standard of Williams v Payne. As previously indicated, this line of authority holds that temporary muscle spasms, tenderness, and limited range of motion are manifestations of possible symptoms, not an objective manifestation of an injury. . . . Based on 1995 PA 222 and its construction in Kreiner, I would hold that plaintiff’s temporary muscle spasm, tenderness, and temporary limited range of motion, while indicative of possible symptoms, do not constitute an objectively manifested impairment of an important body function.”
