Michigan Court of Appeals; Docket #285371; Unpublished
Judges Borrello, Meter, and Stephens; 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)]
Objective Manifestation Element of Serious Impairment [3135(7)]
General Ability / Normal Life Element of Serious Impairment [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In this unanimous unpublished per curiam opinion decided without oral argument, the Court of Appeals dealt with the statutory definition of serious impairment of body function, as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 in part and affirmed in part the trial court’s Order granting summary disposition in favor of defendants on plaintiff’s claim for noneconomic losses.
The plaintiff in this case sustained ill-defined injuries to his cervical and lumbrosacral spine, which included an aggravation of his pre-existing arthritic condition resulting in muscle spasms and radiculopathy and a traumatic brain injury resulting in diminished cognitive abilities with emotional and behavioral sequelae. Defendants moved for summary disposition, arguing that plaintiff had not met the serious impairment threshold under MCL 500.3135(1), and that plaintiff failed to provide evidence of a serious neurological injury in order to create a question of fact for the jury under MCL 500.3135(2)(a)(ii). The trial court granted defendants’ motion, specifically mentioning plaintiff’s neck and back, but failed to mention the closed head injury.
In reversing on the issue of whether plaintiff presented sufficient evidence to establish a question for the jury regarding whether he sustained a closed head injury, the Court of Appeals noted that plaintiff presented evidence from two treating physicians: Mary Ann Guyon, M.D., who is board-certified in physical and rehabilitative medicine and regularly diagnoses and treats individuals with back, neck, and head injuries; and Gerald A. Shiener, M.D., a psychiatrist and also regularly diagnoses and treats individuals with closed head injuries. Dr. Guyon averred in her affidavit that she evaluated plaintiff and diagnosed him with, among other things, a “mild traumatic brain injury,” and determined he “sustained a closed head injury that is a serious neurological injury resulting in severe consequences.” Likewise, Dr. Shiener averred in his affidavit that the plaintiff suffered from “psychomotor slowing, paucity of thought, constricted affect, depressed mood with a somatic trend to his conversation.” On the basis of these findings, Dr. Shiener averred that plaintiff “sustained a closed head injury that may be a serious neurological injury resulting in severe consequences.” Based on these affidavits, the court concluded that plaintiff did indeed create a jury question under §3135(2)(a)(ii). In this regard, the court stated:
“The affidavits of Dr. Guyon and Dr. Shiener did indeed create a jury question under MCL 500.3135(2)(a)(ii). The affidavits indicated that plaintiff may have sustained a serious neurological injury as a result of the accident.”
As to plaintiff’s neck and back injuries, the court affirmed summary disposition for defendant, concluding that even though plaintiff had a physician-imposed restriction on lifting more than 8 to 10 pounds in a repetitive manner, driving more than 1½ hours, and reaching, pulling, pushing, or twisting, and that he had trouble working and performing some activities, the plaintiff had similar difficulties before the accident due to a pre-existing knee injury. Therefore, the court found that plaintiff presented insufficient evidence that his injuries affected his general ability to lead his normal life. In this regard, the court stated:
“[W]e simply cannot conclude that the trial court erred in finding that plaintiff presented insufficient evidence that his injuries affected his general ability to lead his normal life. Although the evidence suggested that plaintiff had trouble working as a result of the accident, he also had work difficulties before the accident. Moreover, while the evidence suggested that plaintiff has difficulty performing certain activities to the same degree as he did before the accident, he still is able to perform them. . . . We find no basis for reversal with regard to the trial court’s findings concerning whether plaintiff’s injuries affected his general ability to lead his normal life.”
