Michigan Court of Appeals; Docket #262594; Unpublished
Judges Cavanagh, Smolenski, and Zahra; 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam, decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the statutory definition of serious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’s order granting summary disposition in favor of defendant on plaintiff’s claim for non-economic loss.
Plaintiff was injured in an automobile accident in June, 2004. Diagnostic tests revealed several impairments to his back and neck, including cervical radiculopathy, bilateral carpal tunnel syndrome, decreased range-of-motion in his neck, bilateral C5-C6 radiculopathy, a bulging disc at L4-L5 and L5-S1, and balance problems. Because these injuries were medically identifable, the court agreed they were “objectively manifested” for purposes of §3135(7). However, the defendant argued these diagnostic tests did not provide medically verifiable evidence of injury because the medical records from before the accident revealed plaintiff had identical pre-existing injuries.
In its ruling, the Court of Appeals first held the testimony of plaintiff’s doctor established plaintiff had both an aggravation of pre-existing injuries and some new ones. The court concluded that, when considered in the light most favorable to plaintiff, plaintiff’s doctor’s testimony was sufficient to establish the existence of an objectively manifested impairment. The only remaining question was whether the injuries affected plaintiff’s general ability to lead his normal life. Comparing his life before the accident to his life after the accident, the court noted the plaintiff had testified that after the accident he could no longer job, could not socialize at the club he use to frequent, could not go to his son’s football games, could no longer hunt or fish, and could not engage in regular activities like playing with the dog. Further, his doctor testified he was not to drive or pick up anything heavy or perform chores. He also claimed his sex life had suffered and his wife had to help him dress and bathe.
The court stated, “Although these changes will often be sufficient to establish that an impairment has affected a person’s general ability to lead his or her normal life,” under the presence circumstances, the court did not believe plaintiff had successfully met the threshold requirements. The plaintiff had admitted he does in fact participate in some of the activities described above. He admitted he continued to go to the club to socialize, and he testified he chose not to engage in many activities as a result of pain and not because he was physically unable to do so. Further, there was evidence his inability to jog or do chores pre-existed the second accident.
The court stated, “Given the totality of these circumstances and the limited scope of plaintiff’s lifestyle before the accident in question, we cannot conclude that the course or trajectory of plaintiff’s normal life has been affected by the injuries allegedly sustained in the accidents in question.”
