Michigan Court of Appeals; Docket No. 70293; Published
Judges Kelly, Maher, and Reilly; Per Curiam; (with J. Kelly dissenting)
Official Michigan Reporter Citation: 140 Mich App 190; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Cassidy Era – 1983-1986) [§3135(1)]
Objective Manifestation Element of Serious Impairment (Cassidy Era – 1983-1986) [§3135(1)]
Important Body Function Element of Serious Impairment (Cassidy Era – 1983-1986) [§3135(1)]
General Ability / Normal Life Element of Serious Impairment (Cassidy Era – 1983-1986) [§3135(1)]
Determining Serious Impairment of Body Function as a Matter of Law (Cassidy Era – 1983-1986) [§3135(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
This is another Opinion dealing with summary disposition of the threshold question. In a 2-1 per curiam Opinion, the court held that plaintiff did not sustain serious impairment of body function and therefore affirmed the trial court's grant of summary judgment for defendant
Plaintiff’s alleged injury consisted of an inguinal hernia for which plaintiff first sought medical attention 12 days after the automobile accident Plaintiff’s treating physician subsequently diagnosed the problem as an inguinal hernia and hospitalized plaintiff for four days during which time the condition was surgically repaired. Nine months later, Plaintiff was hospitalized a second time for a period of six days for a second operation to remove scar tissue which had apparently resulted from the first surgery. Both operations were uneventful and plaintiff was advised by his physician three weeks after the second operation to make an attempt to return to his normal level of activity. However, plaintiff was not able to lift more than 30 or 40 pounds at work. Plaintiff is, by profession, a logger.
In ruling that the Plaintiff had not sustained serious impairment of body function, the court stated, "we hold that the trial court did not err in finding as a matter of law that plaintiff did not suffer serious impairment of body function. From the time of the accident until after recovery from the second operation the plaintiff was somewhat restricted in walking and lifting, but he was not incapacitated for an extended period of time, nor has he, in any significant manner, prohibited from engaging in his normal daily activities. After the second operation plaintiff was permitted, and indeed encouraged, by his doctor to return to employment which did not involve heavy lifting. Although plaintiff allegedly continues to experience some pain, he is not confined to bed and he is able to perform normal body functions, and to engage in normal day-to-day activities. There is nothing to indicate that plaintiff is incapacitated or that his discomfort interferes with his normal life style. See McDonald v Oberlin, 111 Mich App 73, 76; 338 NW 2d 725 (1983), Braden v Lee, supra. The fact that plaintiff’s previous employment involved some heavy lifting does not change the intrinsic nature or extent of the injury. The seriousness of the injury must be determined by an objective evaluation of its effect on the person's.body functions and the ability to perform common day-to-day activities, and not by extrinsic considerations such as the nature of the person's employment."
Judge Kelly dissented. He believes a more workable standard for resolving serious impairment cases is to view the evidence in a light most favorable to the insured person and determine whether reasonable minds could differ on whether the impairment suffered is serious. He referred to his reasoning set forth in the concurring opinion in Kelleher v Kuchta (Item No. 781). In applying this standard, Judge Kelly would hold that reasonable minds could differ as to the seriousness of the impairment suffered by plaintiff and would thus reverse the trial court.
[Author's Comment: This panel's reference to Braden v Lee (Item No.725), like the decision in Sherrell v Bugaski above, raises the question of what is meant by "objective manifestation." The analysis employed in this case seems to involve an "objective evaluation of effect" on a person's lifestyle, as opposed to underlying pathology. Furthermore, it is respectfully submitted that the court's apparent conclusion that the nature of a person's employment is irrelevant constitutes an extension of Cassidy with no basis in other appellate decisions dealing with the threshold question.]
