Michigan Court of Appeals; Docket #260622; Unpublished
Judges Neff, Smolenski, and Talbot; 2-1 (Judge Neff concurring in part and dissenting in part); 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)]
Important Body Function Element of Serious Impairment [3135(7)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion, decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the statutory definition of serious body function,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 grant of summary disposition in favor of defendant on plaintiff’s claim for non-economic losses.
In this case, plaintiff was injured in a motor vehicle accident on July 12, 2003. He went to the hospital immediately with complaints of shoulder pain. He was diagnosed with “chronic shoulder problems,” but the attending physician noted “none of this is related to the injury today.” On the following day, plaintiff returned to a different hospital with complaints of lower back pain. He was released with instructions to rest and avoid strenuous activities. Subsequently, he went to several doctors for treatment of his continuing low back and shoulder pain. His family physician recommended he refrain from working for a period of eight weeks. His family physician diagnosed plaintiff with “lumbar strain and shoulder pain” which the family physician believed was caused by the accident. Plaintiff was referred to another physician for shoulder surgery which was performed on December 22, 2003.
In upholding the trial court determination that plaintiff did not meet the threshold requirement of serious impairment of body function, the court noted plaintiff’s injuries were objectively manifested impairments of important body functions. Further, although some physicians questioned whether the injuries were caused by the accident rather than a pre-existing condition, the Court of Appeals noted that in Wilkinson v Lee, 463 Mich 488 (2000), the Supreme Court held that, regardless of the presence of a pre-existing condition, “recovery is allowed if the trauma caused by the accident triggered symptoms from that condition.”
In addressing whether plaintiff’s injuries satisfied the statutory requirement that they affect his general ability to lead his normal life, the court noted plaintiff’s claim was that he was unable to work, play basketball, bowl, shoot pool, perform household chores, and his frequency of sexual relations with his wife had decreased. The court found, however, that under the unique facts of this case, it did not believe plaintiff’s claim met the serious impairment threshold. Plaintiff’s family physician took him off work for eight weeks but thereafter, any continuing inability to work was “self-imposed.”
With regard to his recreational activities of basketball, bowling, shooting pool, and his household activities of performing chores, the court noted plaintiff had not presented any evidence that his inability to do these activities but was anything other than “self-imposed restrictions.” Plaintiff’s physician did not restrict him from performing any of these activities and there is no other objectively verifiable evidence the injuries would prevent him from performing these activities.
Finally, the court concluded the temporary physician-imposed work restrictions of eight weeks off of work did not significantly alter the course of plaintiff’s life. Therefore, plaintiff failed to demonstrate his injuries have affected his ability to lead his normal life and, therefore, the trial court properly granted summary disposition in favor of the defendant.
The Court of Appeals also rejected a constitutional challenge to the Kreiner decision and the statutory requirements of MCL 500.3135(7).
Judge Neff, in her dissent, noted the trial court’s opinion concluded “plaintiff was totally disabled from work for a total of approximately seven months.” She would find this finding alone is sufficient grounds to submit this case to the fact finder. Therefore, she would reverse.
