Michigan Court of Appeals; Docket No. 18-873; Published
Judges R. B. Burns, Gillis, and Brennan; 2-1
Official Michigan Reporter Citation: 89 Mich App 176; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Pre-Cassidy Era – 1973-1982) [§3135(1)]
General Ability / Normal Life Element of Serious Impairment (Pre-Cassidy Era – 1973-1982) [§3135(1)]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In what could be one of the most important decisions under the no-fault statute, the Court of Appeals in a lengthy 2-1 decision by Judge R. B. Burns held that a plaintiff who had sustained a classic whiplash syndrome had suffered a "serious impairment of body function" under §3135(1) and was entitled to recover noneconomic losses. In so holding, the Court of Appeals reversed a bench trial determination to the contrary holding that the trial judge's factual finding that plaintiff had not sustained a threshold injury was clearly erroneous.
In its lengthy opinion, the Court of Appeals carefully reviewed the plaintiff’s history, treatments and the expert testimony of one of plaintiff’s treating physicians. The Court noted that plaintiff had sought medical help frequently which involved treatment by several physicians. Plaintiff had 56 chiropractic manipulations, traction treatment, ultrasonic therapy, and extensive medications. Plaintiff’s expert testified she was suffering from a trapezius muscle spasm which was described as a vicious cycle where by the muscle contracts to limit motion in response to pain, which causes more pain and more spasm. Plaintiff’s condition had also produced a gentle scoliosis in the dorsal-lumbar area caused by muscles pulling harder on one side than the other. She further developed a loss of sensation in the right shoulder and arm which extended into the hand and which indicated a compression of the nerve routes in the neck. Plaintiff also displayed personality changes and depression which Plaintiff’s expert described as being caused by muscle spasm compressing the vertebral artery as it goes into the skull.
The Court of the Appeals ruled that the trial court had attached too much significance to the fact that the plaintiff was not disabled from employment and that plaintiff had attempted to lead an active and vigorous lifestyle. The Court noted that the evidence demonstrated that plaintiff has to "pay the fiddler" for her activity. In holding that the plaintiff’s attempts to lead a normal lifestyle do not detract from the seriousness of her injury, the Court of Appeals stated "it is clear that plaintiff was once very active but is no longer. That she is not willing to completely curtail her former active lifestyle, and is willing to pay the price to have some fun, indicates courage rather than that the injury was not serious."
Judge Gillis dissented on the basis that the record presents a strong question of fact for the fact finder and, accordingly, the trial court's decision was not "clearly erroneous."
