Michigan Court of Appeals; Docket No. 268571; Published
Judges Whitbeck, Hoekstra, and Wilder; 2-1 (Judge Wilder concurring)
Official Michigan Reporter Citation: 272 Mich. App. 289, 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 2-1 published opinion by Chief Judge Whitbeck, decided without oral argument, the Court of Appeals held that under Jackson v Nelson, 252 Mich App 643 (2002) [RB #2329], the proper standard for determining whether an injury or condition is objectively manifested is the standard set out in DiFranco v Pickard, 427 Mich 32 (1986) [RB #978]. However, the Court held that Kreiner v Fischer [RB #2428] modified that standard somewhat so as to require “some sort of objective verification.” The Court also determined that even though the plaintiff may have produced objective evidence of her injuries, summary disposition for defendant was proper under Kreiner v Fischer, because plaintiff failed to show she sustained a serious impairment of body function.
The 17-year-old plaintiff in this case was pregnant with twins when the motor vehicle accident at issue occurred. Plaintiff filed this third-party action, alleging her premature delivery, as well as soft tissue damage described as lumbar radiculopathy, and cervical, dorsal, and trapezius myositis, constituted serious impairment of body function. The trial court granted defendant summary disposition, finding plaintiff failed to show she suffered an objectively manifested injury. In so finding, the trial court opined that with the 1995 passage of MCL 500.3135(7), the Legislature signaled its disapproval of the current definition of objective manifestation under DiFranco and its intent to return to the more restrictive definition under Williams v Payne, 131 Mich App 403 (1986) [RB #708]. The Court of Appeals disagreed, stating it was required to follow its 2002 decision in Jackson v Nelson, supra. In Jackson, the issue was whether SJI2d 36.11 accurately reflected the Legislature’s intent regarding the objective manifestation of an injury after it amended the statute in 1995. This jury instruction provided, “‘[i]n order for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis.’” In approving the use of that instruction, the Court in Jackson noted that this language reflected the standard set out in DiFranco of which the Legislature was aware when it amended the statute. The Court added that if the Legislature disapproved of this standard, it could have so stated. Due to the Legislature’s silence, the Court concluded it did, in fact, approve of the standard. Because Jackson is binding precedent, the Court in this case was required to follow it. Therefore, the Court held that for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis. In this regard, the Court stated:
“In Jackson, both parties requested that the trial court give the standard jury instruction found in SJI2d.36 that ‘[i]n order for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis. . . . [T]he Jackson panel acknowledged that the Legislature’s amendment of MCL 500.3135 reflected a return to the more restrictive Cassidy standard of objective manifestation. However, the Jackson panel found it significant that the Legislature did not specifically indicate in the plain language of the statute that it was disclaiming DiFranco’s medically identifiable standard, of which the Legislature was presumed to be aware. That is, the Jackson panel explained, ‘The Legislature is presumed to have been aware that our Supreme Court in DiFranco construed the phrase “objectively manifested” to require proof that the injury is medically identifiable.’ Therefore, the Jackson panel held that SJI2nd 36.11 was an accurate reflection of the law and that that [sic] the trial court erred in its instructions to the jury. . . . Thus, in light of Jackson, we are bound to follow the rule that, for an impairment to be objectively manifested, there must merely be a medically identifiable injury or condition that has a physical basis. The trial court here was therefore in error when it substituted the medically measurable standard. But that is not the end of the inquiry. We must also analyze Netter’s injuries in light of Kreiner and its progeny.
As mentioned, in Kreiner, the Court stated that ‘[s]ubjective complaints that are not medically documented are insufficient’ to meet the threshold injury requirement. The Court did not expound on that requirement any further. But it is significant to note that in the underlying case of Kreiner v Fischer, objective tests, including magnetic resonance imaging (MRI) and an electromyography (EMG), showed the degeneration in the plaintiff’s discs and radiculopathy. Indeed, the Court noted that ‘EMG testing is a process by which impairment to nerves in the arms and hands may be verified objectively. It involves measuring and analyzing the responses of muscles to stimulation by electricity.’ It thus appears that Kreiner intended to require the use of some sort of objective verification to evidence the injury. And the Kreiner progeny of published cases supports this conclusion. . . .
In light of Kreiner and its progeny, we conclude that the current meaning of ‘objectively manifested’ — whether described as ‘medically measurable,’ ‘medically identifiable,’ or ‘medically documented’ — requires that a plaintiff’s injury must be capable of objective verification by a qualified medical person either because the injury is visually apparent or because it is capable of detection through the use of medical testing. This interpretation comports with the Legislature’s intent that the ‘serious impairment of body function’ requirement to be as significant an obstacle to recovery as that posed by the requirement of permanent serious disfigurement and death.”
The Court then determined that even though the plaintiff’s injuries were objectively manifested, summary disposition for defendant was nonetheless proper because plaintiff failed to show that the injuries affected her general ability to lead her normal life. In so finding, the Court noted that plaintiff was released from medical care within six months of the accident. In this regard, the Court stated:
“The trial court concluded that Netter’s ability to lead her normal life was indeed impaired. We disagree. Although her July 2005 deposition testimony indicates that she was still suffering residual effects from the accident, the evidence submitted to the trial court demonstrates that she reached her ‘maximum medical improvement and pre-injury status’ as of November 2004 and . . . that she was discharged from physical therapy, and, by implication, any physician-imposed restrictions, by December 2004. We therefore conclude that Netter failed to show that the course or trajectory of her normal life was affected as a result of this relatively brief period (six months) of recuperation.”
