Michigan Court of Appeals; Docket #263714; Unpublished
Judges Murphy, Sawyer, and Meter; 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)]
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In this unanimous unpublished per curiam opinion, decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the statutory definition of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 reversed the trial court’s order granting summary disposition to defendant on plaintiff’s claim for non-economic loss.
Plaintiff was involved in an accident in October, 2003. X-rays taken of plaintiff’s spine following the accident showed the presence of thoracic disc protrusions and an EMG showed the presence of carpal tunnel syndrome. Plaintiff underwent physical therapy and his physician attributed his condition to the accident. In early 2005, plaintiff underwent nerve decompression surgery on both elbows. The Court of Appeals held these injuries were objectively manifested and the ability to use one’s back and arms are important body functions. The court further held the trial court erred in finding the injuries did not affect plaintiff’s general ability to lead his normal life. Plaintiff asserted his injuries prevented him from working as a painter and from engaging in sporting activities. Although he had no physician placed restrictions on his employment or recreational activities, the court relied on its earlier decision in McDanield v Hemker [RB #2611], in which it pointed out a self-imposed restriction based upon something other than pain, such as physical incapacity, may establish the existence of a serious impairment of body function. Here, plaintiff testified that after the accident, he could no longer work as a painter, because the physical activities required by that occupation, i.e., holding brushes and moving his arms, caused his upper extremities to become numb. The court held, “Although plaintiff had no physician-imposed restrictions on his employment activities, he presented evidence that a physical incapacity prevented him from working. Under McDanield, supra, the presentation of such evidence is sufficient to create a question of fact regarding the existence of a serious impairment of body function.”
The trial court order granting defendant’s motion for summary disposition was reversed and the matter was remanded for further proceedings consistent with this Opinion.
