Michigan Court of Appeals; Docket #262627 and #262693; Unpublished
Judges Schuette, Murray, and Donofrio; 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)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious body function, the Court of Appeals affirmed the trial court order denying defendants’ motion for summary disposition on plaintiff’s claim for non-economic losses. The plaintiff in this case was injured when the bus in which he was a passenger was struck by a bus owned by the SMART Corporation. Plaintiff sustained severe, chronic cervical sprain with myositis; severe, chronic dorsal sprain; severe chronic lumbar sprain with myositis and radiculopathy; and chronic instability of the cervical, dorsal and lumbar spine; and a herniated disc. In order to address these disabilities, over a two-year period plaintiff received shock treatment, heat pack therapy and massages. In addition, he was advised to refrain from physical and occupational duties that required lifting, bending, stooping, twisting, prolonged standing and walking. These restrictions rendered plaintiff unable to perform his job as a mail carrier and, since he could not work, he could no longer afford to attend college. Moreover, due to the pain caused by the herniated disc, plaintiff was unable to ride his bike, which was his primary means of transportation. In finding for plaintiff, the Court of Appeals noted that although the inability to ride his bike was a self-imposed restriction, plaintiff’s general ability to lead his normal life was nonetheless affected by his injury. In this regard, the court stated:
“. . . Dr. Meeron diagnosed plaintiff with the following: 1. Severe and chronic cervical sprain with myositis. 2. Severe and chronic dorsal sprain. 3. Severe and chronic lumbar sprain with myositis and right side radiculitis. 4. Chronic instability of the cervical, dorsal and lumbar spine. Dr. Meeron believed that plaintiff had sustained a herniated disc and he had advised plaintiff ‘to abstain from any physical or occupational duties that require any lifting, bending, stooping, twisting, prolonged standing or walking.’ Plaintiff received treatment from Dr. Meeron from approximately February 2002 until June 2004. The treatment included shock treatment, heat packs, and massages. . . .
In deciding . . . whether plaintiff created a genuine issue of material fact on whether the impairment affected his general ability to lead his normal life . . . we must consider the plaintiff’s pre-and post-accident lifestyle. . . . Before the accident, plaintiff worked a mail position at a community college, a job which paid for plaintiff’s attendance at the college. Plaintiff’s sole means of transportation was a bike, or riding the bus. Plaintiff testified that his injuries have prevented him from continuing his college education and working as a campus mailman, which involved heavy lifting. Without that job, he could no longer pay for the schooling. Plaintiff further testified that he quit riding a bike based on the amount of pain he was experiencing. And, although self-imposed restrictions based on real or perceived pain are insufficient to establish a residual impairment, . . . plaintiff’s doctors recommended that he not engage in activities that involve heavy lifting, repetitive bending, or prolonged walking. These restrictions affected his ability to lead his normal life.”
The court next addressed defendant-SMART’s argument that it should be entitled to summary disposition because plaintiff failed to provide 60 days notice of his personal injury claim as required by MCL 124.419. Although MCL 124.419 requires that a plaintiff provide a transportation authority 60 days notice of a personal injury claim from the date the injury occurred, plaintiff’s failure to provide such notice is fatal to his claim only if the defendant would suffer actual prejudice. The trial court failed to determine whether defendant was prejudiced by lack of notice, therefore, the Court of Appeals remanded the matter for further proceedings on this issue. In this regard, the court stated:
“MCL 124.419 clearly states that notice of a claim for personal injury must be provided to a transportation authority ‘no later than 60 days from the occurrence through which the injury is sustained. . . . The plain language of MCL 124.419 is clear and unambiguous. . . . Therefore, this Court holds that the trial court erred in concluding that plaintiff complied with the 60 day notice provision in MCL 124.419. . . . Plaintiff’s failure to comply with the 60-day notice provision is fatal, however, if SMART and Campbell have suffered actual prejudice from plaintiff’s failure to provide timely notice. . . . The trial court did not address whether SMART and Campbell suffered actual prejudice because it held that plaintiff complied with the 60 day notice provision. Therefore, we remand for the trial court to consider whether SMART and Campbell have suffered actual prejudice.”
