Michigan Court of Appeals; Docket No. 242602; Unpublished
Judges Fort Hood, Murphy, and Neff; 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 (Kreiner Era: 1996-2010) [§3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals upheld grant of summary disposition on the issue of serious impairment of body function, where plaintiff claimed he suffered from post-traumatic stress disorder (PTSD) as a consequence of the first of three rear-end collisions he was involved in between December, 1997 and July, 1998.
Plaintiff’s original complaint made claims of damages arising from three separate rear-end collisions in which he was involved on December 31, 1997, January 20, 1998 and July 24, 1998. The second and third collisions were not a part of this appeal, in that those cases were settled. The trial court granted summary disposition to the defendant on plaintiff’s claim of serious impairment of body function arising from the first accident.
In the first accident, plaintiff was rear-ended while driving a full-size pickup truck. He was struck from behind while slowing to navigate a right hand turn at an intersection. The accident shook plaintiff and tossed him back and forth. He thought he hit his head on the head rest, but was not certain. No other part of plaintiff’s body struck anything within the truck when the impact occurred, and he did not detect any bleeding. The only damage to the truck was to the rear bumper and the truck remained driveable. Plaintiff told the responding police officer that he was shaken and that he had back and shoulder pain and that his head hurt. He refused medical treatment, however, drove himself home, went to bed, and eventually went back to work that same day.
After his second accident, plaintiff complained to his doctors that he developed physical symptoms and pain and complained of having hit his head. He did seek medical attention at the emergency room following the second accident.
In support of their motion for summary disposition, defendants in the first accident argued that there was no evidence that plaintiff suffered a physiological injury as a result of that first accident. With respect to plaintiff’s PTSD claim, defendants argued that plaintiff had failed to submit objective evidence of a medically identifiable injury.
Evidence presented on plaintiff’s behalf in connection with the first accident included the psychiatric opinion and evaluation by Dr. Frank M. Ochberg. Dr. Ochberg diagnosed post-traumatic stress disorder which Dr. Ochberg believed was the result of the first accident, coupled with the death of plaintiff’s brother in a motor vehicle accident prior to plaintiff’s first accident. The affidavit of another expert, a psychiatrist treating the plaintiff, further confirmed the opinion that the PTSD was precipitated by the inseparable events of plaintiff’s brother’s death and the three car accidents.
The basis of the trial court’s ruling was the absence in the record of medical testing, examination, or other assessment before the second accident, suggesting and/or confirming an objective physical basis of his claimed injuries from the first accident.
The Court of Appeals, in addressing defendants’ argument that plaintiff had failed to prove that he went to a doctor after the first injury but before the second injury and that plaintiff’s deposition itself did not establish a threshold injury because the testimony reflected purely subjective complaints first noted that there was no legal basis to support the proposition that plaintiff was required to obtain medical or psychiatric treatment before the first and second accidents in order to establish serious impairment of body function. The medical and psychiatric care given to plaintiff subsequent to the second accident could establish an outcome-determinative factual issue on serious impairment, when considered in relation to plaintiff’s deposition, if this evidence can be shown to relate to plaintiff’s alleged symptoms arising directly after the first accident and if supportive of a finding of serious impairment.
While acknowledging that Luce v Gerow, 89 Mich App 546 (1979) held that mental injuries are considered just as real as physical injuries, Luce must be considered cautiously, because Luce was decided before the 1995 amendment to MCL 500.3135.
In upholding the trial court grant of summary disposition, the Court of Appeals held that it would not address the current status of mental or psychiatric injury, standing alone, in the context of whether such an injury can constitute a serious impairment of body function under the statutory and judicially-created definitions that now control. In this case, assuming that a mental or psychiatric injury such as PTSD is cognizable under MCL 500.3135, it still requires a physical injury causing the psychiatric injury, a physical basis, or physical symptoms arising out of the psychiatric injury.
In this case, the available medical records, reports, and letters indicate that plaintiff confided he had no physical symptoms or pain directly after the first accident. Plaintiff did not go for medical care after the first accident, yet sought medical care after the second accident. The Court of Appeals held that the evidence indicated a lack of physical problems resulting from the first accident. Therefore, summary disposition was affirmed.
