Michigan Court of Appeals; Docket No. 273017; Published
Judges O’Connell, Murray, and Davis; 2-1 (Judges Murray and O’Connell concurring)
Official Michigan Reporter Citation: 275 Mich. App. 220, Link to Opinion 
STATUTORY INDEXING:
Noneconomic Loss Liability for Serious Impairment of Body Function Threshold (Definition) [3135(1)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
Closed Head Injury Question of Fact [3135(2)(a)(ii)]
Determining Permanent Serious Disfigurement As a Matter of Law [3135(2)]
Evidentiary Issues [3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 published opinion written by Judge Davis, the Court of Appeals reversed summary disposition for defendant on plaintiff’s claim that her closed head injury constituted serious impairment of body function. The Court also reversed summary disposition for defendant on plaintiff’s claim that her facial scar constituted permanent serious disfigurement. However, with regard to plaintiff’s orthopedic injuries, the Court affirmed summary disposition in favor of defendant.
The plaintiff in this case was a 67- year- old woman who was diagnosed with a “mild traumatic brain injury.” This injury caused frequent headaches, dizziness, memory problems, and insomnia. For these difficulties, plaintiff required physical therapy, speech therapy, and language therapy. In granting defendant’s motion for summary disposition, the trial court first determined that plaintiff’s injuries were not prolonged and did not affect her ability to lead her normal life. In support of her claim, plaintiff failed to offer the sworn testimony of an allopathic or osteopathic physician confirming that she may have suffered a serious neurological injury pursuant to the procedures set forth in §3135(2). In spite of that failure, the Court of Appeals, referring to Churchman v Rickerson, 240 Mich App 223 (2000) [Item No. 2130], held that this sworn testimony procedure was not the exclusive way for a plaintiff to create a fact question entitling a claim of closed head injury to be jury submissible. In this regard, the court stated, “Therefore, the lack of medical testimony on point only precludes plaintiff from taking advantage of the automatic route to a jury issue, it does not necessarily preclude her from establishing a question for the jury by other means.” (emphasis in original) In reversing the trial court’s ruling regarding plaintiff’s closed head injury claim, the court held:
“The parties do not dispute the bare fact that plaintiff sustained a closed head injury. She was 67 years old at the time. The headaches of which she complains are irrelevant under Kreiner. However, she also asserts that she suffers from dizziness, confusion, and blurred vision; as a result, she has a reduced ability to locomote independently, to perform routine tasks necessary to life, and to engage in the social activities she enjoyed previously. ‘We note that a self-imposed restriction not based on real or perceived pain can be considered.’ McDanield, supra at 283 (emphasis in original). These impairments may or may not be self-imposed, but they are due to dizziness and confusion in addition to pain. The ‘trajectory’ of plaintiff’s ‘normal’ life, past the age of 70, where her ability to take care of herself and enjoy socializing with friends and family, would seem to have been at least potentially affected. Moreover, defendant apparently disputes some of these complaints, giving rise to a ‘factual dispute concerning the nature and extent of the person’s injuries’ that is ‘material to the determination as to whether the person has suffered a serious impairment of body function.’ Therefore, the conditions of MCL 500.3135(2)(a) necessary to make the determination one of law for the court are not satisfied. We conclude that, notwithstanding the fact that no allopathic surgeon provided the requisite testimony to satisfy the second sentence of 500.3135(2)(a)(ii), the trial court erred in granting summary disposition as to the closed head injury”
(emphasis in original)
With regard to plaintiff’s orthopedic injuries, which consisted of a broken toe and a cervical strain for which plaintiff wore a special soft shoe for a week and a soft collar for two weeks with limited household activities for three months and residual stiffness for six months did not constitute a threshold injury. In this regard, the court stated:
“We agree with the trial court that plaintiff’s broken toe and cervical strain do not meet this standard. At most, she had to wear a soft shoe for a month and a soft collar for two weeks, and she had to refrain from activities that she was mostly or completely unable to do anyway. Plaintiff does not experience any ongoing effects of either injury. The trial court properly granted summary disposition regarding plaintiff’s broken toe and cervical strain.”
With regard to plaintiff’s claim that her facial scar constituted a permanent serious disfigurement, the court reversed the trial court and made note of the fact that her facial scar caused her embarrassment and also affected her facial expressions, and thus had functional as well as cosmetic implications. In this regard, the court held:
“Plaintiff contends that her scar causes her a considerable amount of embarrassment and discomfort, as well as an inability to move her eyebrow in a ‘normal’ manner. . . . Presuming the truth of plaintiff’s contentions, the scar is not only visible, it causes a functional problem with her ability to express emotions or otherwise communicate nonverbally. If the issue was purely a cosmetic one, we would find this to be a much closer question. However, quite aside from appearance and embarrassment, a great deal of human face-to-face communication is nonverbal — it involves facial expressions and bodily gestures that are, consciously or subconsciously, attended to and interpreted by others. If plaintiff truly cannot move her eyebrow in a normal or natural manner, that could add to a claim of disfigurement. And if a significant amount of her interaction with others is face-to-face, the scar could objectively be determined to have a great deal of impact on her life. We therefore find that the parties’ factual dispute regarding the scar is sufficient to give rise to a jury question.”
(emphasis in original)
