Michigan Court of Appeals; Docket #265886; Unpublished
Judges Kelly, Markey, and Meter; 2-1 (Judge Kelly dissenting); 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In this 2-1 unpublished per curiam opinion decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of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 vacated the trial court order denying defendant’s motion for summary disposition on plaintiff’s claim for non-economic losses. The plaintiff in this case sustained ill-defined injuries to her back for which she treated with pain medication, was off work for four months and received physical therapy. The trial court denied defendant’s motion for summary disposition, finding that plaintiff’s range of motion was still significantly impaired. In vacating that decision, the Court of Appeals noted that although plaintiff had not regained complete range of motion, she had no doctor imposed restrictions. Moreover, the trial court failed to consider whether the evidence supported plaintiff’s claim the injury affected her general ability to lead her normal life. In this regard, the court reasoned:
“Plaintiff was off work for over four months, during which she received eighteen physical therapy sessions. Plaintiff’s final physical therapy report stated that plaintiff ‘feels that she has got 95% of her life back’ and that plaintiff does not take pain medication, even though she experiences ‘discomfort 20% of the time.’ The physical therapy report also reflected some limitation in plaintiff’s trunk flexion, extension, and right side bending, which was ‘approximately ¾ into available ROM [range of motion], without pain.’ . . . The physical therapist imposed no physical limitations and required no continued physical therapy, other than home exercise. Plaintiff claims that her physicians imposed lifting restrictions of twenty-five to thirty pounds after the accident occurred but is unsure if the restrictions were lifted. However, plaintiff has not identified any documentation signed by a physician restricting her activities. In plaintiff’s deposition testimony, she claimed that her injury precludes her from numerous sports, gardening, and cleaning activities that require bending, lifting, and reaching. After plaintiff returned to work, she resigned within six weeks to take another position that paid slightly less but had shorter hours and required less physical exertion. In this case, it does not appear that plaintiff has shown that a physician imposed the painbased restrictions that she alleges. At most, she has presented the report of the physical therapist that plaintiff had twenty-five percent limitations of trunk flexion, extension, and right-side bending. . . . In the absence of any limitations imposed by a physician or even a physical therapist, it does not appear that plaintiff has shown that her limitations are other than self-imposed. Further, contrary to the trial court’s conclusion, the court did not fully apply the Kreiner test. The trial court only found that plaintiff submitted evidence of an objective manifestation of an injury and that ‘she treated for quite some time’ and had ‘considerable limitation in the range of motion.’ However, the trial court did not consider whether the evidence supported plaintiff’s claim that the injury affected her general ability to lead her normal life. Moreover, the trial court did not comment on the apparent absence of any physician-imposed restriction on plaintiff’s activities. Accordingly, we vacate the trial court’s order denying defendant’s motion for summary disposition and remand for further proceedings to determine whether plaintiff made a sufficient showing under Kreiner and McDanield that her limitations were not simply self-imposed and that they affected her general ability to lead her normal pre-accident life.”
Judge Kelly dissented, finding plaintiff failed to present sufficient documentary evidence establishing the existence of a material factual dispute in response to defendant’s motion for summary disposition.
