Michigan Court of Appeals; Docket #283823; Unpublished
Judges Cavanagh, Fort Hood, and Davis; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era - 1996-2010 [3135(7)]
Determining Serious Impairment of Body Function As a Matter of Law [3135(2)]
Evidentiary Issues [3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided without oral argument, the Court of Appeals dealt with the statutory definition of serious impairment of body function, as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 losses.
The plaintiff in this case sustained various injuries, including cervical disc abnormalities; right cervical radiculitis; thoracic and lumbar pain; a closed-head injury with depression, anxiety, and impaired memory function.
In reversing, the Court of Appeals determined that the trial court improperly refused to consider the opinion of plaintiff’s psychologist and other evidence regarding the existence of her closed-head injury. According to the court, MCL 500.3135(2)(a)(ii), which provides that “a question of fact for the jury is created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury,” does not provide the exclusive manner or means for a plaintiff to establish a closed-head injury. Instead, the court stated this statutory language creates an exception that permits a party to automatically create a jury question through testimony by a physician that a serious brain injury might exist. However, in this case, the trial court failed to consider whether plaintiff presented evidence of a closed-head injury separate and apart from the automatic exception provided by MCL 500.3135(2)(a)(ii). Therefore, the Court of Appeals reversed and remanded for consideration of evidence of the brain injury. In this regard, the court stated:
“Contrary to the determination of the trial court and argument of defense counsel, the statutory provision enumerated in MCL 500.3135(2)(a)(ii) does not provide the exclusive manner or means for a plaintiff to establish a closed-head injury and the existence of a factual dispute. . . . MCL 500.3135(2)(a)(ii) does not delimit the admissibility of evidence pertaining to the existence of a closed-head injury. Rather, it is an exception that permits a party to automatically create a question for a jury through provision of testimony by a physician that a serious neurologically based injury might exist.
The record reveals that the trial court failed to properly consider the issue whether plaintiff presented the requisite proof of a closed-head injury, separate and distinct of the automatic exception in MCL 500.3135(2)(a)(ii). Because the trial court did not make the required findings, we reverse and remand for the purpose of determining the existence of a threshold ‘closed-head’ injury. . . .”
The Court of Appeals also found that when the trial court determined that plaintiff had not sustained a threshold injury, it did so without the benefit of the evidence associated with her closed-head injury. In this regard, the court stated:
“In this case, the trial court granted defendant’s motion for summary disposition on plaintiff’s neck and back claims without the benefit of considering evidence related to her claimed associated closed-head injury. The court erred when it did not properly consider whether plaintiff presented the requisite proof of a closed-head injury. With this in mind, if admissible, evidence relating to the closed-head injury could affect the nature and extent of plaintiff’s injuries on the whole, especially in relationship to her other asserted neck and back injuries.”
