Michigan Court of Appeals; Docket #274532; Unpublished
Judges Cooper, Murphy, and Neff; 2-1 (Judge Murphy dissenting); per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Noneconomic Loss Liability for Serious Impairment of Body Function Threshold (Definition) [3135(1)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
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In this 2-1 unpublished per curiam opinion, decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [Item No. 2428] interpreting the statutory definition of serious impairment of body function, the Court of Appeals reversed the trial court order granting summary disposition in favor of defendant on plaintiffs’ claim for non-economic losses.
The plaintiff in this case was a police officer who sustained compound comminuted fractures of the tibia plateau and fibula of his left leg and irreversible damage to his right perineal nerve, causing permanent numbness on the left side of his left foot. Plaintiff underwent reconstructive knee surgery and was off work for several months. Initially, plaintiff returned to work on a restricted basis and eventually returned to “unrestricted duty.” Although he was on unrestricted duty, he could not resume his prior activities as a police officer because of problems with his left knee and foot.
In reversing the trial court’s decision, the Court of Appeals determined that due to the seriousness of the initial injury, the treatment plaintiff required, and the duration of his disability, plaintiff sustained a serious impairment of body function. In so finding, the court noted that plaintiff was unable to return to his normal duties as a detective and police officer, despite his unrestricted status. It also noted that he suffers from pain and instability in his left knee and foot. Moreover, plaintiff has curtailed other pre-accident activities, including recreational sports and volunteer activity with the Sheriff’s Dive Team, carpentry, and construction on his home and in his workshop. The court noted that although self-imposed restrictions do not establish the extent of a residual impairment, plaintiff’s medical examination records support the limitations on his activity. In this regard, the court stated:
“Given the ‘seriousness of the initial injury, the treatment required, and the duration of disability,’ plaintiff sustained a serious impairment of body function. . . . Although plaintiff worked as a detective at the time of the accident and worked overtime hours as a patrol officer, he is unable to return to his normal duties despite his unrestricted duty status. He suffers from pain and instability in his left knee and foot, which requires a conscious effort to insure his footing in every step,. . . Additionally, plaintiff has necessarily curtailed other pre-accident physical activities that he engaged in, including recreational sports and volunteer activity with the St. Clair County Sheriff’s Department dive team, carpentry, and construction on his home and in his workshop. Generally, self-imposed restrictions, as opposed to physician-imposed restrictions, based on real or perceived pain do not establish the extent of a residual impairment. . . . Here, plaintiff’s medical examination record supports his indicated limitations on activity and further states that x-rays show some progressive degenerative changes compared to his previous x-rays.”
