Michigan Court of Appeals; Docket #266291; Unpublished
Judges Cooper, Cavanagh, and Fitzgerald; 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In this unanimous unpublished per curiam opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious impairment of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 affirmed the trial court order granting summary disposition in favor of defendants on plaintiffs’ claim for non-economic losses finding their injuries did not affect their general ability to lead their normal lives. The plaintiffs in this case were involved in a motor vehicle accident occurring on May 2, 2003. Plaintiff Kim Eichler claimed he sustained a herniated disc at the L4-L5 level. His wife, plaintiff Kathryn Eichler, claimed she sustained a chip fracture to her right hip.
In affirming, the Court of Appeals first found that plaintiff Kim Eichler failed to present sufficient evidence the motor vehicle accident caused his injury. In so finding, the court noted that although the motor vehicle accident occurred on May 2, 2003, Kim did not seek emergency treatment until about three weeks later when he experienced pain after he lifted a trash can. X-rays revealed degenerative conditions of his spine and a herniated disc at the L4-5 level. Plaintiff sought additional treatment the following January after he slipped and fell on the ice. In this regard, the court stated:
“To the extent that plaintiff’s own testimony indicates the cause of his injury, it amounts to speculation. Under these circumstances, plaintiffs did not meet their burden of showing sufficient evidence to create a genuine issue of material fact that the back problems he reported beginning on May 26, 2003, arose from the traffic accident that occurred on May 2, 2003. The trial court properly found that plaintiffs had not met their burden of establishing causation and properly granted defendants’ motion for summary disposition as to Kim.”
Furthermore, even if the motor vehicle accident had caused plaintiff’s problems, the court determined the back injury did not meet the threshold for serious impairment of a body function because it did not affect plaintiff’s general ability to conduct the course of his normal life. Plaintiff continued to work, and, although he wore a back brace, he was under no physician-imposed restrictions. Moreover, although plaintiff testified that he no longer plays softball or basketball, these restrictions were self-imposed. In this regard, the court stated:
“Kim continues to be employed with the same employer doing the same job as before the accident. His treatment merely consists of wearing a back brace at work, and he is no longer under a doctor’s care. He has no physician-imposed work or activity restrictions. Although he no longer works the overtime that he did before the accident and no longer plays softball or basketball, refraining from these activities was Kim’s personal decision based on his subjective belief that he could be injured again if he engages in these activities. Such self-imposed restrictions are not sufficient under the objective standards required by Kreiner. . . . Because plaintiffs failed to establish that Kim’s impairment affected his general ability to conduct the course of his normal life, he did not satisfy the serious impairment of body function threshold for recovery of non-economic damages under Michigan’s No-Fault Statute.”
As to plaintiff Kathryn Eichler, the court noted that she continued to work at her regular employment until she took a medical leave of absence in order to care for her ailing parents. She also continued to do her regular housework and gardening. And, although she complained of headaches, plaintiff produced no evidence which linked her headaches to the motor vehicle accident. Further, plaintiff was under no physician-imposed restrictions. In this regard, the court stated:
“The dispute with regard to Kathryn is whether her impairment has affected her general ability to lead her normal life. She continued to work at her regular employment after the accident until taking a Family Medical Leave Act leave of absence to care first for her husband and then for her ailing parents. She continued to do her regular housework consisting of doing dishes, window washing, laundry, vacuuming, and floor scrubbing. She continues to garden, though she testified that she may plant a smaller garden because too much bending causes her pain. She also suffers from headaches. Kathryn briefly treated with Dr. Manofar on three occasions between March and May 2004 regarding her pain, and treated with Dr. Dafnis regarding her headaches in 2004. Dr. Manofar testified that an MRI did not show anything that would warrant the symptomatology that Kathryn was having and that he did not think that the chip fracture could be a pain generator. Dr. Dafnis opined that her headaches could be related to tension. Plaintiffs were unable to submit evidence pinpointing a physiological basis for Kathryn’s pain. Kathryn no longer treats with a physician, and has no restriction on her activities. Any restriction, such as not engaging in the craft hobby, is self-imposed instead of physician-imposed. Self-imposed restrictions based on real or perceived pain do not establish the extent of any residual impairment. . . . As noted by the Court in Kreiner, ‘the totality of the circumstances must be considered, and the ultimate question that must be answered is whether the impairment “affects the person’s general ability to conduct the course of his or her normal life.”’ . . . Considering the totality of the circumstances here, Kathryn’s general ability to conduct the course of her normal life has not been affected.”
