Michigan Court of Appeals; Docket #263150; Published
Judges Smolenski, Murphy, and Davis; unanimous
Official Michigan Reporter Citation: 268 Mich. App. 269, 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)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous published opinion written by Judge Murphy, the Court of Appeals reversed the trial court order granting defendant’s motion for summary disposition on plaintiff’s claim of serious impairment of body function and held plaintiff’s injuries constituted threshold injuries as a matter of law. The plaintiff in this case was a 40 year old woman who sustained severe hyperextension hyperflexion type injuries to her back and neck in a high speed intersectional collision involving her van and a pick up truck. In the collision, plaintiff’s head was thrown violently forward and backward and struck the window of the vehicle. Plaintiff was taken to the hospital by ambulance where she was treated and released and thereafter, received extensive medical treatment and physical therapy over the next three years. An MRI study revealed “injuries to the cervical spine” which were subsequently diagnosed by a specialist as “foraminal stenosis exacerbated by bulged discs at two different levels.” After many months of conservative treatment, plaintiff’s physician further diagnosed her injuries, based upon a digital motion X-ray, in an affidavit where he stated: “Damage to the posterior longitudinal ligament, indicated by an anterolisthesis at C3 on C4, C4 on C5, and C6 on C7 and widening of the posterior intervertebral disc spaces at C3 on C4, C4 on C5 and C6 on C7; Possible damage to the anterior longitudinal ligament, indicated by a retrolisthesis and anterior widening of the intervertebral disc spaces at C6 on C7; Damage to the alar and accessory ligaments, indicated by the overhang of the lateral mass of C1 bilaterally.” Plaintiff’s physician further expressed the opinion plaintiff’s cervical injuries were caused by the motor vehicle collision and further described her injury as “[B]oth the posterior and anterior longitudinal ligaments, which hold the vertebrae in place in the cervical area, were damaged and/or torn, thereby allowing the vertebrae to move out of their normal alignment. This slippage of the vertebrae [the ‘listhesis’] causes the intervertebral discs to be pushed or bulged out. In addition, the vertebrae do not articulate properly with one another, causing an abnormal wearing of the uncovertebral joints, and the misalignment also causes the narrowing of the neural foramina. When ligaments are stretched or torn, they do not heal nor go back to their original shape. Instead, injured ligaments allow for abnormal movement of the vertebrae . . . and this in turn causes inflammation of all of the soft tissues in the cervical area . . .”
As the result of these injuries, plaintiff was disabled from her employment as a school bus driver and school food services worker. She was initially disabled from work for six weeks pursuant to her physician’s restrictions. After returning to work, her pain increased and approximately six months after the accident, her physician again restricted her from working. At this point in her treatment, she had palpable muscle spasm and positive MRI findings. Plaintiff’s second period of work disability lasted approximately six months. However, after returning to work for two months, plaintiff again experienced increased neck and head pain which required ongoing medical treatment. At this point, plaintiff’s physician informed her that her neck pain and headaches were likely to be “a permanent injury.” Furthermore, plaintiff’s physician expressed the opinion there was no surgery to repair her ligament damage or to realign her vertebrae and her ligamentous injuries “are most likely a permanent condition.” In his affidavit, plaintiff’s physician stated, “Mrs. McDanield will continue to experience headache and neck pain for a long period of time, and she has to adapt her life accordingly; there are certain activities which she may not be able to do, or if she does, she probably will have pain and discomfort. She can continue to take medication to control her headache and neck pain, continue with things such as cervical traction and stretching exercises at home, or undergo repeat nerve blocks for any flare-ups of intense neck pain; beyond that, there is nothing more that would afford Mrs. McDanield any relief from her ongoing symptoms and complaints.”
Plaintiff testified at her deposition that her neck and head injuries cause pain that is so severe she is unable to interact with her children, play baseball and basketball, go camping, play volleyball, go bowling, and does limited gardening, housework and cooking for her family.
In reversing the trial court, the Court of Appeals held plaintiff’s injuries affected plaintiff’s general ability to lead her normal life. The Court noted the defendants did not contest plaintiff had suffered an objectively manifested impairment of an important body function and indeed, the trial court had so concluded. Therefore, the only issue in this case was whether plaintiff’s injuries affected her general ability to lead her normal life. In concluding this element of the threshold had been satisfied, the Court stated:
“On review of the entire record, McDanield’s injuries resulted in her being out of work approximately six to seven months, needing assistance from coworkers while currently employed because of the pain, having to forgo recreational activities once enjoyed, significantly curbing her household chores, limiting her gardening activities, interfering with her sleep habits, decreasing intimacy with her husband, and has resulted in years of visits to doctors for tests and treatment, which treatment included the use of pain medications, nerve blocks, muscle relaxers, and physical therapy, with a prognosis that she will have to continue such a regimen, in whole or in part, because she will most likely have pain for the remainder of her life. There can be no legitimate or honest dispute that the course or trajectory of McDanield’s normal life has been inextricably affected. . . . Comparing McDanield’s life before and after the accident is similar to comparing day to night; all aspects of her life have been significantly impacted with no meaningful relief in sight. According to Dr. Juneja, McDanield will have a life of pain and discomfort and will need to adapt accordingly. We note that McDanield was only forth years old at the time of the accident.”
The Court then reviewed the “five Kreiner factors” in detail, citing the evidence with respect to each of these factors. In this portion of the opinion, the Court of Appeals made a very significant observation regarding Kreiner footnote 17 and the so-called “physician imposed restriction requirement.” This footnote states, “Self-imposed restrictions, as opposed to physician-imposed restrictions, based on real or perceived pain do not establish this point.” The Court stated the context of this footnote clearly indicates it relates to Kreiner factor number 4 which is the factor relating to “the extent of any residual impairment.” In this regard, the Court made the following observation regarding footnote 17:
“. . . it is important to take notice of the fact that footnote 17 is not a general proposition enunciated by our Supreme Court, but rather it is tied directly to one factor, factor d, and the Court emphasized that the enumerated factors are ‘not meant to be exclusive nor are any of the individual factors meant to be dispositive by themselves.’ Accordingly, simply because there may be self-imposed restrictions based on pain does not mean that a plaintiff has not established a threshold injury. A trial court must look to all of the evidence presented, consider, if relevant, all of the Kreiner factors, and view ‘the totality of the circumstances’ in determining whether an impairment has affected ‘the person’s general ability to lead his or her normal life’ as required by MCL 500.3135(7).”
With regard to the concept of “residual impairment” the Court, citing dictionary definition, stated the term “residual” means “pertaining to or constituting a remainder; remaining; leftover; or something that remains to discomfort or disable a person following an illness, injury, operation, or the like.” The Court then, referring to Kreiner footnote 17, drew a distinction between self-imposed restrictions based upon pain versus self-imposed restrictions based upon physical incapacity. In this regard, the Court stated:
“Consistent with the Kreiner footnote, the extent of this residual impairment cannot be proven by way of self-imposed restrictions based on real or perceived pain. Stated differently, McDanield cannot establish the extent of her residual impairment by merely claiming that she has restricted herself from engaging in activities or making certain movements because she experiences pain. We note that a self-imposed restriction not based on real or perceived pain can be considered. If a plaintiff restricts himself or herself from doing something because they are physically incapable of doing so, but not on the basis of pain, the restriction should be subject to consideration in determining the extent of any residual impairment. For example, if a right-handed plaintiff’s right arm is in a full cast, and said plaintiff, on his or her own, claims to be restricted from playing sports that involve throwing a ball, the self-imposed restriction would suffice. We think it evident that our Supreme Court crafted footnote 17, in the context of establishing the extent of any residual impairment, because the nature of pain tends to be subjective and therefore inherently questionable. While there may exist a medically identifiable or physiological basis for the pain, self-imposed restrictions due to pain, in and of themselves, fail because there is no medical expertise supporting the restrictions, which expertise would in all likelihood take into consideration the source of the pain before restrictions are imposed. That said, if there are physician-imposed restrictions based on real or perceived pain, footnote 17 does not require that the doctor offer a medically identifiable or physiological basis for imposing the restrictions.”
Based on the foregoing, the Court concluded that “under the totality of the circumstances” plaintiff had suffered a serious impairment as a matter of law.
