Michigan Court of Appeals; Docket #287152; Unpublished
Judges Murray, Markey, and Borrello; unanimous, per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Permanent Serious Disfigurement Definition [3135(1)]
Serious Impairment of Body Function Definition (Kreiner Era - 1996-2010) [3135(7)]
Causation Issues [3135]
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In this unanimous unpublished per curiam opinion, decided without oral argument, the Court of Appeals dealt with the statutory definition of serious impairment of body function, as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 affirmed the trial court’s Order granting summary disposition in favor of defendant on plaintiff’s claim for noneconomic damages.
The plaintiff in this case sustained ill-defined injuries to his neck, back, and shoulder. He also sustained a closed-head injury and permanent disfigurement from a scar in his hairline.
In affirming, the court noted that plaintiff’s injuries to his neck, back, and shoulder were not supported by objective evidence. According to the court, there is almost nothing in the medical records which show detectable problems with his neck and back and only objectively manifested problems with his shoulder. However, the court noted that plaintiff had problems with his shoulder for at least three years before the accident. In regard to plaintiff’s closed-head injury, the court noted that there was evidence that plaintiff’s cognitive testing before and after the accident showed that at both times he was performing at below-average levels. Therefore, the court agreed that plaintiff failed to meet his burden of establishing that the accident caused his impairment. Finally, the court determined that plaintiff failed to show that his scar constituted a serious permanent disfigurement. In reaching this conclusion, the court noted that plaintiff only presented one photograph which showed a high cut on his head. However, plaintiff’s deposition testimony indicated that the scar goes into his hairline a few inches. In addition, there is no evidence that the scar is visible or that it cannot be made invisible with cosmetic surgery. In this regard, the court stated:
“Plaintiff’s complaints about his neck, back, and shoulder are . . . not supported by objective evidence. There is almost nothing in the medical record showing medically detectable problems with his neck and back, and the only objectively manifested problems with his shoulder, once the initial emergency treatment was complete, are those documented after he reinjured it in early 2006. Moreover, the record shows that he had had problems with his shoulder for at least three years before the accident, so there is no proof that the accident made him more prone to reinjury.
[R]egarding plaintiff’s alleged closed head injury, . . . defendants provided test results from 2004, before the accident, which show plaintiff was at that time performing below his expected level and suffering from emotional impairment. There is no indication Dr. Van Horn had the advantage of seeing these pre-accident test results; in contrast, defendants’ experts’ analyses make note of the earlier tests. Consequently, we agree plaintiff failed to meet his burden of establishing that defendants’ conduct caused the impairment, consistent with the general elements of proof for negligence claims.
Turning . . . to plaintiff’s allegations concerning his scar, we find that plaintiff has not shown it to be a serious permanent disfigurement. . . . The sole photograph plaintiff provided was taken only a week after the accident; it shows a cut high on plaintiff’s head, consistent with the drawings in the emergency treatment record. Plaintiff’s deposition testimony indicates no more than that the scar goes back a few inches into his hairline. There is no evidence that it is visible on his face, or that it cannot be made more invisible with cosmetic surgery. Thus, the evidence does not support plaintiff’s allegations that the scar is either permanent or seriously disfiguring.”
(emphasis in original)
