Michigan Court of Appeals; Docket #264557; Unpublished
Judges Borrello, Jansen, and Cooper; 2-1 (Judge Cooper 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion, decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428], interpreting the statutory definition of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 impairment of body function, the Court of Appeals affirmed the trial Order granting summary disposition in favor of defendant on plaintiff’s claim for non-economic losses.
The plaintiff in this case sustained a herniated disc at the L4 level and degenerative disc disease for which she was prescribed a TENS unit and underwent physical therapy. Due to her injuries, plaintiff was off work intermittently and could no longer engage in activities such as playing with her 2-year-old grandchild, dancing, or bowling. Although she and her husband continued to travel, she was required to use a wheelchair.
In affirming the trial court’s decision, the Court of Appeals found that plaintiff’s injury did not affect her general ability to lead her normal life. The court recognized she missed work, but reasoned she was not off work for an extended period of time. And, even though plaintiff stated she could no longer engage in certain activities, there was no evidence of physician-imposed restrictions. In so deciding, the Court of Appeals stated:
“[T]he evidence did not create a question of fact whether the accident resulted in injuries that affected Cates’ general ability to lead her normal life. Cates missed work from time to time after the accident, but was not off work for any extended period. She was able to sit or stand as needed while on the job. Cates and her husband continued to travel after the accident, notwithstanding the fact that Cates was required to use a wheelchair on occasion. Cates testified that she could not participate in various activities following the accident; however, no evidence showed that any physician restricted Cates’ activities. Self-imposed restrictions, as opposed to physician-imposed restrictions, based on real or perceived pain do not establish the existence of a residual impairment. Kreiner, supra at 133, n 17. Self-imposed restrictions based on something other than pain, such as physical incapacity, may establish the existence of a serious impairment of body function. McDanield v Hemker, 268 Mich App 269, 282-283; 707 NW2d 211 (2005). No evidence showed that Cates’ restrictions were anything other than self-imposed limitations based on real or perceived pain.”
