Michigan Court of Appeals; Docket #251128; Unpublished
Judges Whitbeck, Zahra and Owens; 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:
Not applicable
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In this unanimous unpublished per curiam opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious body function,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 affirmed the trial court order granting summary disposition in favor of defendant on plaintiff’s claims for non-economic losses and permanent serious disfigurement. Plaintiff sustained very ill-defined injuries to her back which rendered her unable to bowl, golf, take long walks, cut grass, tend the garden or do home improvements. However, the only thing plaintiff was medically restricted from was shoveling snow. She also complained of sleeplessness from the pain, breathing problems from a nose injury and scarring on her lips. In holding that plaintiff’s injuries did not affect her general ability to lead her normal life, the court found that plaintiff’s restrictions were self-imposed. In this regard, it stated:
“The only documented restriction imposed on plaintiff was with regard to snow shoveling on October 24, 2000. In addition, plaintiff testified that she must carry less at one time. However, Dr. Weingarden did not impose any lifting restriction on plaintiff and, in fact, encouraged her to start doing so as early as March 14, 2000. Here, any restriction to plaintiff’s activities, except for shoveling snow, was self-imposed. And self-imposed restrictions do not establish that an injury has affected a person’s ability to lead her normal life.”
The court also rejected plaintiff’s sleep deprivation claim even though it was medically documented. In rejecting the claim, the court stated:
“This sleep deprivation is documented in Dr. Weingarden’s reports and appears to negatively affect the plaintiff’s daily life. However, plaintiff is still able to function day to day even with the sleep deprivation. And our Supreme Court has stated that ‘[a] negative effect on a particular aspect of an injured person’s life is not sufficient in itself to meet the tort threshold, as long as the person is still generally able to lead his normal life.’”
The court also found that plaintiff’s back injury did not affect her general ability to lead her normal life. In so finding, it reasoned:
“Further, plaintiff is still able to work [and has] only missed a total of three weeks of work over the course of three years. . . . And since October 24, 2000, plaintiff has been self-treated with hot and cold compresses and over the counter medications for her back pain, and she has not returned to Dr. Weingarden for any treatment. Finally, as early as June 12, 2000, Dr. Weingarden noted that, at that time, plaintiff did not seem to have any restrictions on her daily life because of her back injury.”
Moreover, the court found that plaintiff failed to allege that her nose injury was a serious impairment of body function. In this regard, it stated,
“Initially, we note that plaintiff’s deposition testimony regarding the nose injury focuses on the nerve damage to the nose, not breathing problems. Indeed, her testimony and affidavit state that she attributes the breathing problems after the accident to the tightness in her back, and not the injury to her nose. In any event, there is likewise no evidence that plaintiff’s nose injury has affected her ability to lead her normal life. Therefore, the trial court did not err in granting defendant’s motion for partial summary disposition because plaintiff has not established that she suffered a serious impairment of body function.”
As to the scarring on plaintiff’s lips, the trial court granted defendant summary disposition on the permanent serious disfigurement claim because the scarring was hardly discernable. In so holding, the court stated:
“We agree with the trial court that plaintiff’s scar is not serious. From the photos provided, we conclude that plaintiff’s scar is not readily apparent to the casual observer, and thus similar to a ‘hardly discernable’ injury. . . . Therefore, the trial court did not err when it granted defendant’s motion.”
