Michigan Court of Appeals; Docket #266637; Unpublished
Judges Neff, Saad, and Bandstra; 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of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 impairment of body function, the Court of Appeals reversed the trial court order granting summary disposition in favor of defendants on plaintiff’s claim for non-economic losses. The plaintiff in this case sustained a complex left hand and wrist injury involving a seven centimeter laceration to his palm, lacerated tendons, and three puncture lacerations to his left wrist for which he underwent reconstructive surgery and physical therapy. After the injury, plaintiff testified that although he could play football, he could not use his left hand. Also, he had to change his career plans. He had planned on pursuing a career in auto mechanics upon graduation from high school but could no longer perform mechanic work due to the residual effects of his injury. Moreover, he had a drywalling job but he could no longer lift the sheets of drywall. Further, he could not grip handles so he could no longer push a lawnmower or ride dirt bikes. In addition, cold weather caused his hand to “curl,” so he could not shovel snow and had to limit the amount of time he was outdoors during cold weather. In reversing, the Court of Appeals noted that although plaintiff was medically released to resume regular activity four months after his injury, it is undisputed the residual effects of his injury have continued to impede his normal activity. In this regard, the Court of Appeals stated:
“Shane suffered a deep, seven-centimeter laceration to his left hand that left a jagged scar in the center of his palm. After receiving initial emergency treatment the day of the accident, he was treated by a hand surgeon the following day, and underwent reconstructive surgery the following week. The operative report indicated the nature and extent of his injury, including significant damage to the tendons, nerves and some bones: 75 percent laceration of the flexor carpi radialis tendon; 50 percent laceration of the palmaris longus tendon; 90 percent laceration of the radial artery, with clot at the vessel; complete transection of the flexor digitorum sublimis and flexor digitorum profundus tendons to the small finger, and partial injuries to the long and ring fingers. There was also notable injury to the ulnar nerve and apparent complete transection of the deep motor branch of the ulnar nerve at the midpalmar arch. A portion of the ulnar vascular arch was disrupted. The deep fourth lumbrical was completely transected. At the very depth of the wound was a large fragment of glass. There was also a unicortical fracture of the trapezium and several fracture fragments within the depth of the wound.
Following surgery to repair the damage, Shane did not have use of his left hand for nearly two months pursuant to medical restrictions. As defendants note, over the course of the four months following the accident, Shane underwent 22 sessions of physical therapy. While it is true that following these physical therapy sessions Shane was medically released to resume regular activity on April 29, 2003, it is undisputed that the residual effect of his injury has continued to curtail or prohibit his normal activity.
Further, even at the time of the medical release, Shane’s recovery, while noted to be excellent, was not in any sense complete. Follow-up treatment with the hand surgeon on August 12, 2003, noted ‘evidence of intrinsic muscular wasting with interosseous muscle bulk diminishment and slight limitation to abduction and adduction.’ At a follow-up one year later, the physical examination reflected diminished strength in the left hand, with a grip strength of 75 lbs. In his left hand, compared to 120 lbs. in his right hand, and key pinch strength of 8 lbs. in his left hand, compared to 20 lbs. in his right hand. At the one-year follow-up, the surgeon recommended that Shane utilize a padded glove to minimize impact and subsequent pain with physical activity, which Shane testified he has necessarily used, for instance, in playing high school football.
Evidence indicated that Shane has significant scar tissue, which is attached to a tendon, is a source of severe pain, and limits the use of his hand. He also has tingling and numbness in his hand, which precludes certain activities. ‘[W]here there is evidence that the physician has pinpointed a physiological basis for the pain or believes that the patient is truly suffering pain, such evidence, while not conclusive, lends support to a conclusion that instructions by the physician constitute physician-imposed restrictions.’ McDanield v Hemker, 268 Mich App 269, 284-285; 707 NW2d 211 (2005). . . .
While Shane forthrightly testified that he is able to undertake many regular activities to a limited extent, such as washing dishes, yard work, football, and working on cars, he clearly testified that he could not undertake many other activities, and that his life had significantly changed in numerous respects.
For instance, Shane played football, but was limited to using mostly his right arm, and he wore the padded glove to protect his hand. He could no longer perform mechanic work on cars, which was a key activity in his life before his injury, and thus he had changed his career plan. He had a summer drywalling job, but he could not grip and lift the drywall sheets, which limited his job performance. He could not grip handles, and thus could not push a lawn mower or ride dirt bikes or ‘four-wheelers’ as he did before his injury.
Further, the cold weather affects his hand, causing it to ‘curl,’ and so he no longer shovels snow, and must limit his outside activities in rainy weather. And his diminished grip, loss of strength and dexterity, and pain otherwise preclude many activities that a teenager would normally undertake, such as sports, work, and recreation activities.
Shane’s post-impairment life is significantly different from his pre-accident life. Considering the ‘totality of the circumstances,’ including the enunciated Kreiner factors, we conclude that Shane’s hand and wrist injury affects his general ability to lead his normal life. . . . Accordingly, the trial court’s grant of summary disposition in favor of defendants was improper.”
