Michigan Court of Appeals; Docket #262713; Unpublished
Judges Saad, Jansen, and Markey; 2-1 (Judge Jansen dissenting); 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)]
Causation Issues [3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion, Judge Jansen dissenting, decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the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, a pedestrian, was struck while walking. She lost consciousness for a short time. She presented to the emergency room with complaints of headache and pain from a small cut over her right eye. Diagnostic tests, including x-rays, were negative. In subsequent months, plaintiff consulted her family physician and a neurologist, complained of headaches, dizziness, blurred vision, and neck and back pain. Her family physician diagnosed plaintiff as suffering from a concussion. The neurologist diagnosed plaintiff as suffering from “post concussion syndrome, traumatic cervical/lumbar sprain, and paraspinal muscle spasm and tenderness, and prescribed medication.” An MRI performed several months after the accident showed mild “cervical disc bulging” as well as other changes. Both physicians indicated plaintiff required assistance with daily living activities.
In upholding the trial court grant of summary disposition, the Court of Appeals held plaintiff had not produced evidence that as a result of the accident she sustained an objectively manifested, medically identifiable injury or condition that has a physical basis. Plaintiff’s reliance upon the MRI results performed several months after the accident, according to the court, did not objectively verify medically identifiable injury causally related to the automobile accident. Plaintiff’s neurologist had diagnosed “traumatic cervical/lumbar sprain” and does not specifically relate to conditions shown in the MRI as being caused by the accident. Further, although the neurologist found evidence of “paraspinal muscle spasm and tenderness,” and although a muscle spasm may be objective evidence of an identifiable injury, as was held in Chumley v Chrysler Corp, 156 Mich App 474 (1986), in this case, plaintiff only had muscle spasms as evidence of an objective injury, whereas in Chumley, the muscle spasm was one of three physical problems plaintiff was suffering, including a herniated disc, loss of natural curvature of plaintiff’s cervical spine, and muscle spasms.
The court here held, “It stretches Chumley beyond our Supreme Court’s holding in Kreiner to find that muscle spasms alone are an objectively identifiable injury that satisfies the no-fault tort liability threshold under 3135(7).”
Finally, even if plaintiff’s muscle spasms are an objectively identifiable injury, the court found they do not satisfy the threshold because plaintiff experienced “temporary, albeit uncomfortable, minor limitation” which the court held did not satisfy the no-fault threshold.
In her dissent, Judge Jansen stated she believed a genuine issue of material fact existed with regard to whether plaintiff suffered a serious impairment of body function. A muscle spasm is an objectively identifiable injury, and the ability to use the back is an important body function.
