Michigan Court of Appeals; Docket #254232; Unpublished
Judges Saad, Fitzgerald and Smolenski; 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)]
Objective Manifestation Element of Serious Impairment [3135(7)]
Liability for Excess Economic Loss Caused by Insured Tortfeasors [3135(3)(b)]
Closed Head Injury Question of Fact [3135(2)(a)(ii)]
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In this unanimous unpublished per curiam opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious body function,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 in part a judgment in favor of plaintiff following a jury trial on her non-economic loss claim. The plaintiff in this case suffered a closed head injury and ill-defined injuries to her back, neck and knee. Her treating neurologist testified that abnormalities in visual evoked response tests and an MRI indicated plaintiff sustained a closed-head injury and postconcussion syndrome. The neurologist testified that these injuries barred plaintiff from returning to her former employment. Plaintiff testified she was unable to work at her previous level of functioning and was compelled to discontinue most of her pre-accident recreational activities. Family and friends also testified that plaintiff could no longer participate in activities she enjoyed before her accident.
On appeal, defendant first argued that plaintiff’s subjective complaints of headache, tinnitus and dizziness are insufficient to establish that her injuries are objectively manifested under MCL 500.3135(7). The Court of Appeals found this argument without merit, noting that under MCL 500.3135(2)(a)(i) and (ii) the court determines as a matter of law whether a person has met the threshold for a serious impairment of body function only if there is no factual dispute regarding the nature and extent of a person’s injuries. In this case, the court said, the nature and extent of plaintiff’s injuries was highly contested. Moreover, the court determined, because the plaintiff asserted a closed head injury, and her doctor, a physician who regularly treats closed-head injuries, provided sworn testimony that she sustained a serious neurologic injury, the plaintiff created an issue of fact under MCL 500.3135(2)(a)(ii). In this regard, the court stated:
“In this instance, the ‘nature and extent’ of Amos’ injuries was highly contested, with RTI asserting that Amos did not incur a closed head injury and that, even if she did, the resultant condition did not sufficiently impact her ability to lead her ‘normal life.’ Furthermore, in cases involving the assertion of a closed-head injury, a question of fact for the jury’s determination is created if a physician, ‘who regularly diagnoses or treats closed-head injuries’ provides sworn testimony that ‘there may be a serious neurological injury.’ . . . Gerald F. Robbins, D.O., Amos’ treating neurologist, stated, under oath, that Amos had ‘sustained a serious neurologic injury.’ As such, the trial court did not err in permitting the issue of the existence of a ‘serious impairment of body function’ to be resolved by the jury.”
The court then rejected defendant’s argument that plaintiff failed to objectively verify her complaints, noting that the no-fault statute does not require that a plaintiff submit medical testing results to support the existence of the alleged injury. In this regard, it stated:
“The statute requires only that a plaintiff demonstrate an ‘objectively manifested impairment’ not objectively verifiable medical testing results. . . . The term ‘objectively manifested’ has been defined by case law as not being ‘predicated on serious pain and suffering, but on injuries that affect the functioning of the body.’ . . . Amos met this requirement through evidence presented regarding her inability to return to her prior job post-accident, her decreased socialization and inability to participate in activities that comprised her ‘normal life.’ RTI also ignores the testimony of Amos’ neurologist that indicated an abnormality in the visual evoked response test and anomalies in an MRI performed on Amos indicating ‘findings in the periventricular region with a suspicion of demyelinating process.’ Upon follow-up testing, Amos’ neurologist opined that the MRI findings and symptoms were not consistent with a diagnosis of demyelinating disorder, but more likely demonstrated ‘a closed-head injury and postconcussion syndrome.’”
The court further held that even though neuropsychological testing may in itself not be sufficient to establish a serious impairment of body function, it nonetheless is sufficient to submit the issue of whether a plaintiff suffered a closed head injury to the jury. In this regard, it stated:
“Contrary to RTI’s assertion, MCL 500.3135 does not provide the exclusive manner by which a plaintiff may establish the existence of a closed-head injury and the existence of a factual dispute. . . . MCL 500.3135(2)(a)(ii) does not serve to limit the admissibility of evidence relating to the existence of a closed-head injury. Instead, it merely provides an exception that permits a plaintiff to automatically create a jury question by providing testimony of a medical physician that a serious neurologic injury may exist. Amos came forward with sworn testimony from a neurologist that satisfied the requirements of MCL 500.3135(2)(a)(ii). The neuropsychological testing performed was merely another mechanism available to Amos to establish the existence of a medically verifiable serious neurological impairment that affected her ability to lead her life. Issues that subsequently arise regarding the interpretation of test results or methodologies employed in testing and the resulting diagnoses are evidentiary in nature and go to the weight of the evidence.”
(Emphasis in original)
The court next held that plaintiff, as part of her claim that her closed head injury constituted a serious impairment of body function, was entitled to present evidence of all her other injuries even though they were not claimed to be threshold injuries. In this regard, the court stated:
“Counsel for Amos made it abundantly clear that she did not assert that injuries to her back, neck and knee, which were admittedly resolved, constituted a serious impairment of body function meeting the required threshold criteria. Amos consistently claimed that evidence of these injuries was submitted to the jury because noneconomic damages were compensable once the claimed threshold injury of a closed-head injury was established. Byer v Smith, 419 Mich 541, 544; 357 NW2d 644 (1984). Because evidence of these injuries was properly presented to the jury for its evaluation of noneconomic damages, the trial court did not err in failing to preclude reference to medical testing that originally established the existence of the physical condition. Further, although RTI contends that reference to such medical testing improperly influenced the jury’s determination, it offers no proof that such evidence was improperly considered or given exaggerated importance by the jury in its determination of damages.”
Finally, the court agreed with defendant that defendant was improperly denied its right under MCL 500.3135(3)(c) to exempt the amount of taxes plaintiff would have paid on the income claimed as future damages. Moreover, there was ample evidence of plaintiff’s prospective tax status without defendant providing expert testimony. Therefore, the court remanded to recalculate plaintiff’s wage loss damages with a credit for prospective tax liability. In this regard, the court stated:
“Amos’ W-2's for three consecutive years prior to the accident were submitted into evidence. As Amos’ tax rate could easily be extrapolated by the wage verification information submitted into evidence, the trial court did not lack a factual basis upon which to reduce Amos’ award or require expert testimony for this determination. Therefore, the trial court did not err in not permitting RTI to receive an exemption for Amos’ prospective tax liability.”
