Michigan Court of Appeals; Docket #289680; Unpublished
Judges Meter, Murray, and Beckering; 2-1 (Judge Murray dissenting), per curiam
Offical Michigan Reporter Citation: Not applicable, Link to Opinion
STATUTORY INDEXING:
Important body function element of serious impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion, the Court of Appeals dealt with the statutory definition of serious impairment of body function, as interpreted by the Supreme Court’s decision in Kreiner v Fischer [Item No. 2428], and reversed the trial court’s Order granting summary disposition in favor of defendant on plaintiff’s claim for noneconomic damages and remanded for entry of an Order granting summary disposition to plaintiff on the issue of serious impairment of body function.
The plaintiff in this case initially sought treatment after a motor vehicle accident for pain in his neck, shoulder, ribs, and back. Plaintiff was diagnosed with a broken collarbone and underwent pain treatment for a year which was unsuccessful. After a year, plaintiff’s physician ordered an MRI of his lower back and upper pelvic area which revealed two herniated discs and three bulging discs in his lumbar spine. By that time, plaintiff could no longer walk and was in constant pain. Plaintiff underwent a bilateral laminectomy of the L4 through S1 and discectomy with decompression of the L4-5 and S1 nerve roots with fusion. After surgery, plaintiff used a walker for three months. After three months of recovery, plaintiff was able to walk unassisted, but continued to suffer from lower and upper back pain, as well as increased depression. Plaintiff’s physicians agreed that plaintiff’s back injuries were the direct result of the motor vehicle accident and that he continued to suffer persistent pain and will likely continue to suffer back pain throughout his life. They also agreed that the plaintiff continued to be restricted in his daily activities, continued to be restricted from prolonged, repetitive, or strenuous activities, including reaching or stretching, pushing or pulling, lifting, bending, stooping, turning, twisting, walking, standing, and climbing. They further agreed that he continued to require household assistance and will continue to require future medical treatment over the course of his life due to traumatic back injuries. In addition, plaintiff was receiving Social Security disability benefits for depression at the time of the accident. Plaintiff’s Social Security records revealed that he spent many days in bed and could not do anything around the house. On other days, the records showed that he would grocery shop, clean or repair the house, watch television, read, play chess, attend doctor appointments, engage in activities with his children, and walked and fed the dog.
In reversing, the Court of Appeals noted that although the evidence indicated that plaintiff’s life was relatively unchanged by the injuries he sustained in the accident, it is more severely limited as a result of the accident. The court found that although he had previous back pain, he now suffers from persistent lower and upper back pain which makes it difficult for him to bend, lift, stand, carry, and twist. The court also noted that plaintiff’s doctors have restricted him from prolonged, repetitive, or strenuous activities. Further, the court noted that the plaintiff participated in activities, such as cleaning or household repair. However, he now suffers from severe pain for one or two days after doing any light work. Furthermore, the court found that before the accident, plaintiff had planned to renovate his family condominium, but can no longer do so. It also noted that he cannot work on his car or walk the dog for long distances. Finally, the court noted that plaintiff’s depression has been exacerbated as a result of his medical condition. Based upon the totality of plaintiff’s circumstances before and after the accident, the court concluded that the plaintiff’s general ability to lead his normal life has been affected. Therefore, the court reversed and remanded for entry of an Order granting summary disposition to plaintiff. In this regard, the court stated:
“In this case, plaintiff suffered a broken collarbone, two herniated discs, and three bulging discs in his lumbar spine as a result of the accident on December 3, 2005. He underwent pain treatment for one year. When plaintiff’s condition became so severe that he could no longer walk and was in constant pain, he underwent back surgery. After the surgery, plaintiff used a walker for three months. After those three months of recovery, he was able to walk unassisted, but still suffers from lower and upper back pain. Although Dr. Friedman concluded that plaintiff had an objectively normal neurological examination and ‘is likely at maximum medical improvement as is related to his lumbar spine fusion,’ Drs. Schwartz and Soo agreed that plaintiff continues to suffer persistent back pain and will likely continue to suffer back pain and require future treatment throughout his lifetime. They agreed that plaintiff is restricted in his daily activities, including ‘any prolonged, repetitive, or strenuous activities involving reaching or stretching, pushing or pulling, as well as lifting, bending, stooping, turning, twisting, walking, standing, or climbing,’ and requires household assistance. . . .
Looking solely at this evidence, it appears that plaintiff’s life was relatively unchanged by the injuries he sustained in the accident. But, while plaintiff’s life was limited before the accident, it is more severely limited as a result of the accident. Plaintiff had some back pain before, but now suffers from persistent lower and upper back pain, making it difficult for him to bend, lift, stand, carry, and twist. Indeed, plaintiff’s doctors have restricted him from any prolonged, repetitive, or strenuous activities involving those motions, as well as others. While plaintiff used to participate in activities such as cleaning or household repairs, depending on how he felt emotionally, he now suffers from severe back pain for one or two days after doing any light work such as laundry, taking out the trash, or lifting grocery bags. He intended to renovate his family’s condominium, but can no longer pain or lay carpet because of his back pain. He cannot work on his car or walk the dog for long distances. Plaintiff’s depression has also been exacerbated as a result of his back condition. Before the accident, plaintiff attempted to cope with his depression by engaging in activities around the house such as cleaning, house repairs, or car repairs—activities that now cause him to suffer severe physical pain. Plaintiff’s inability to perform simple tasks such as these without pain has only increased his depression. . . .
Considering the totality of plaintiff’s circumstances before and after the accident, plaintiff’s general ability to lead his normal life, or the course or trajectory of his normal life, has been affected by the injuries he sustained. . . . We reverse the trial court’s order granting summary disposition to defendants and remand for entry of an order granting summary disposition to plaintiff on the issue of serious impairment of body function and further proceedings.”
