Michigan Court of Appeals; Docket #264854; Unpublished
Judges White, Fitzgerald, and Talbot; 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Causation Issues [3135]
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In this unanimous unpublished per curiam opinion decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of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 denying defendant summary disposition on plaintiff’s claim for non-economic losses. The plaintiff in this case claimed he sustained a subluxed coccyx in a January 2002 motor vehicle accident and subsequently developed coccyodynia and spinal arthritis. In reversing the trial court’s decision, the Court of Appeals noted that although plaintiff presented objective evidence of his injuries, he failed to provide evidence these injuries were causally related to the motor vehicle accident. In so finding, the court noted the traffic crash report indicated plaintiff sustained no injuries and his medical records show that although he sought chiropractic treatment a few weeks after the accident, he sought no further treatment until nearly a year later. In addition, X-rays taken more than a year after the accident revealed only mild degenerative changes and a subluxed coccyx, which age was indeterminate. Moreover, plaintiff was involved in other motor vehicle accidents both before and after the accident at issue and sustained an accident at work in which he fell on his tailbone. In this regard, the court stated:
“We first note that plaintiff has failed to establish an objectively manifested impairment stemming from the January 2002 accident. Plaintiff did present evidence that he had a subluxed coccyx and that he had been diagnosed with coccyodynia and spinal arthritis. However, he presented absolutely no evidence connecting these problems to any injury sustained in the automobile accident. The traffic crash report filed by the Lansing Police Department following the accident states that plaintiff suffered no injury. A physician whom plaintiff saw within weeks of the accident—apparently for reasons unrelated to the accident—told plaintiff that he needed counseling rather than chiropractic treatment, and plaintiff did not seek any further medical treatment until one year later. An ‘accident questionnaire’ completed by plaintiff at his chiropractor’s office on January 9, 2002, indicated that he did not sustain any loss of movement following the accident, and that he was not disabled or unable to perform any work or physical activities. . . . Notes taken by a physician one year after the accident indicated that plaintiff stated that he ‘does exercise, biking and weight lifting daily.’ X-rays taken more than a year after the accident revealed only ‘mild degenerative changes’ and a subluxed coccyx, the age of which injury was ‘radiographically indeterminate.’ Furthermore, plaintiff was involved in several other automobile accidents before and after the subject accident, and he suffered an on-the-job accident in May 2002 in which he fell on his tailbone. Plaintiff presented no evidence supporting a finding that his tailbone and back problems were attributable to the January 2002 accident rather than to any of these other incidents.”
Furthermore, the court concluded that even if plaintiff’s injuries were related to the accident at issue, plaintiff failed to show that his injuries affected his general ability to lead his normal life. Although plaintiff alleged that he can no longer sit for long periods of time, this assertion does not support a finding that the course and trajectory of his normal life has been affected. Contrary to plaintiff’s assertion, he is able to drive his delivery truck for nine hours a day and he was off work only one day. Moreover, plaintiff has no physician-imposed restrictions. In this regard, the court added:
“Plaintiff’s testimony that he could no longer sit in one place without shifting positions, thus affecting his ability to ride his bike and to go to movies and on long trips, does not support a finding that the ‘trajectory’ of his normal life has been affected. Indeed, he remains able to drive a delivery truck for nine hours per day, and he missed only one day of work. Moreover, each of these limitations has been self-imposed by plaintiff based on real or perceived pain, rather than imposed by a physician; thus, this evidence may not be used to establish the extent of plaintiff’s residual impairment.”
