Michigan Court of Appeals; Docket #254922; Unpublished
Judges Meter, Whitbeck, and Schuette; 2-1 (Judge Meter dissenting); 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Evidentiary Issues [3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious body function, the Court of Appeals reversed the trial court order denying defendants’ motion for summary disposition on plaintiff’s claim for non-economic losses. The plaintiff in this case sustained a Type II acromioclavicular separation and dislocation as well as a compression injury involving the ball of her humerus and the lateral acromion. Plaintiff took pain medication, wore a shoulder sling for about a month, underwent several weeks of chiropractic treatment and attended seven sessions of physical therapy over a two-month period. Due to the injury, plaintiff, a hair-dresser, was unable to work for two months because she could not lift her left arm higher than shoulder level. Upon completion of her second month of physical therapy, plaintiff was released to work. Eight months after the accident, her orthopedic surgeon noted in his office records that she was “doing well.” However, plaintiff testified that 14 months after the accident her shoulder felt numb and she would have occasional shooting pains. Moreover, due to her ongoing pain she reduced her hairdressing clients by half. She also testified she could no longer salmon fish.
In reversing the trial court’s decision, the Court of Appeals reasoned plaintiff merely presented evidence of temporary impairments which do not satisfy the serious impairment threshold. For example, it noted that two months after the accident she was returned to work without restrictions. Moreover, although she limited the number of clients she saw each week and could no longer fish for salmon, the injury did not entirely limit her ability to cut hair or fish. In this regard, the court stated:
“Plaintiff presented evidence of short-term changes, which do not satisfy the no-fault threshold. First, the evidence established that plaintiff’s shoulder impairment affected her ability to work as a hairdresser, albeit not completely. . . . Furthermore, before the accident the plaintiff used to fish at her daughter’s home. Following the accident she is still able to fish, but was no longer able to catch salmon fish. Plaintiff’s shoulder injury did not entirely limit her ability to cut hair or to fish, and therefore the impairment did not affect her ‘general ability’ to perform those activities. ‘[M]inor changes in how a person performs a specific activity may not change the fact that the person may still “generally” be able to perform that activity.’”
Finally, the court concluded that due to the fact plaintiff underwent minimal medical treatment, her residual impairment is self-imposed, limited in nature and may not be permanent, plaintiff failed to allege a sufficient basis in which to find defendants liable. In so concluding, the court declared:
“The instant facts are an insufficient basis upon which to hold defendants subject to tort liability under section 3135(1) of the no-fault insurance act. Plaintiff’s impairment is unlikely permanent, her treatment was not extensive and her residual impairment is limited. Furthermore, when comparing the plaintiff’s life before and after the accident, the alleged impairments are self-imposed rather than medically imposed, as she was instructed to return to work without restrictions two months after the accident.”
