Michigan Court of Appeals; Docket #306159; Unpublished
Judges Murphy, Sawyer, and Hoekstra; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
On April 1, 2013, the Michigan Supreme Court DENIED Leave to Appeal; Link to Order
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(7)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – present) [§3135(2)]
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(7)]
TOPICAL INDEXING:
Not applicable
In this unanimous unpublished per curiam Opinion regarding plaintiff’s threshold claims for noneconomic loss, the Michigan Court of Appeals reversed the trial court’s grant of summary disposition in favor of defendant on the issue of whether plaintiff suffered serious impairment of body function. The trial court ruled in favor of the defendant on this issue because the plaintiff had not introduced evidence that plaintiff had suffered an objectively manifested impairment and that plaintiff had produced insufficient evidence that his impairment affected his general ability to lead his normal life.
The plaintiff in this case suffered an injury that the Court described as an injury to his “neck and back” that required plaintiff to undergo “16 months of treatment before he was allowed to return to unrestricted work.” The Court further noted that plaintiff had undergone a functional capacity evaluation approximately 10 months after his injury in order to determine his ability to return to work. This evaluation revealed that “plaintiff could lift at most 10 pounds continuously throughout the day, below the requirements for his former position has a kiln worker.”
In reversing the trial court’s conclusion that plaintiff had not presented evidence of an objectively manifested impairment, the Court, citing McCormick v Carrier, held that “medical documentation is not always required to establish an objectively manifested impairment.” Moreover, citing the Supreme Court decision in DiFranco v Pickard, the Court stated “’the objectively manifested’ requirement signifies that plaintiffs ‘must introduce evidence establishing that there is a physical basis for their subjective complaints of pain and suffering and that a showing of impairment generally requires medical testimony.’” The Court went on to conclude that a genuine issue of material fact existed as to whether plaintiff had suffered an objectively manifested impairment. In that regard, the Court noted “several physicians treated plaintiff for 16 months after the accident. A number of these physicians concluded that plaintiff’s spinal injuries resulted from the accident and not degenerative disc disease. A functional capacity evaluation revealed that plaintiff could lift only 10 pounds continuously throughout the course of the workday. Plaintiff was not allowed to return to unrestricted work until 16 months after the accident. Viewing this evidence in the light most favorable to plaintiff, a rational factfinder could find that plaintiff suffered an objectively manifested impairment. The medical documentation demonstrates more than mere subjective allegations of pain by plaintiff.”
The Court also concluded that a genuine issue of material fact existed as to whether plaintiff’s ability to lead his normal life was impaired. Again, citing to McCormick, the Court noted, “a plaintiff need not show that his ability to lead his normal life was destroyed, but merely affected. . . . Here, plaintiff could not return to unrestricted work for 16 months. He had continuing difficulty with walking and bear hunting, and was unable to jet ski, snowshoe, bike, or play basketball. Based on this evidence, a rational factfinder could conclude that plaintiff’s ability to lead his normal life was affected. Genuine issues of material fact existed; thus, summary disposition was improper.”
