STATE OF MICHIGAN
COURT OF APPEALS
ALOMA WELCH, as Next Friend of SHANE
WELCH, a Minor,
UNPUBLISHED
April 18, 2006
Plaintiff-Appellant,
v
BRENT ALAN YUHL, CONNIE MARIE YUHL,
and DOUGLAS LAVERN,
No. 266637
Branch Circuit Court
LC No. 04-012772-NI
Defendant-Appellee.
Before: Neff, P.J., and Saad and Bandstra, JJ.
PER CURIAM.
Plaintiff Aloma Welch appeals as of right an order granting defendants’ motion for
summary disposition. We reverse. This appeal is being decided without oral argument pursuant
to MCR 7.214(E).
I
This third-party no-fault insurance action arises out of an automobile accident in which
plaintiff’s 14-year-old son, Shane, was a passenger in a car driven by defendant Brent Yuhl.
Yuhl lost control of the car on a curve. The car struck a phone junction box and rolled over.
Shane, who was in the rear seat, suffered a severe laceration and trauma to his left hand when his
hand struck the window of the car.
II
This Court reviews de novo a trial court’s grant of a motion for summary disposition.
West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In reviewing a motion
under MCR 2.116(C)(10), this Court must consider the pleadings, admissions, affidavits, and
other relevant documentary evidence submitted in the light most favorable to the nonmoving
party. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). If no genuine issue
of material fact exists, the moving party is entitled to judgment as a matter of law. West, supra at
183. “A genuine issue of material fact exists when the record, giving the benefit of reasonable
doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.”
Id.
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III
On appeal, plaintiff argues that the trial court erred in finding that Shane did not suffer a
serious impairment of body function that affected his general ability to lead his normal life under
the standard established in Kreiner v Fischer, 471 Mich 109, 132; 683 NW2d 611 (2004). Our
consideration of Shane’s injury, and the standard of Kreiner, compels us to agree.
A
Under the no-fault automobile insurance act, MCL 500.3101 et seq., tort liability for
noneconomic losses is generally limited to instances in which the injured person has suffered
death, serious impairment of body function, or permanent serious disfigurement. MCL
500.3135(1); Kreiner, supra at 129; Williams v Medukas, 266 Mich App 505, 507; 702 NW2d
667 (2005). A serious impairment of body function is an objectively manifested impairment of
an important body function that affects the person’s general ability to lead his normal life. MCL
500.3135(7); Kreiner, supra at 130.
A multi-step analysis is used to determine whether a plaintiff has suffered a serious
impairment of body function. Id. at 131. A court must first determine if there is a factual dispute
concerning the nature and extent of the plaintiff’s injuries. Id. at 131-132. If there is no factual
dispute concerning the nature and extent of the injuries, or the dispute is not material to whether
the plaintiff has suffered a serious impairment of body function, the question whether the
plaintiff has suffered a serious impairment of body function is decided by the court as a matter of
law. MCL 500.3135(2)(a); Kreiner, supra at 131-132. The court must then decide if an
important body function has been impaired. Id. If the court concludes that an important body
function has been impaired, it must then determine if the impairment was objectively manifested.
Id. If the impairment was objectively manifested, the court must then decide whether the
impairment affected the plaintiff’s general ability to lead a normal life. Id.
B
In the present case, there is no factual dispute concerning the nature and extent of
plaintiff’s injuries. Plaintiff suffered a complex left hand and wrist injury involving a sevencentimeter laceration of the palm, lacerations of tendons in his left hand, and three puncture
lacerations to his left wrist. Therefore, it was proper for the court to determine as a matter of law
whether Shane suffered a serious impairment of body function. MCL 500.3135(2)(i); Kreiner,
supra at 131-132.
In determining whether an injury constitutes a serious impairment of an important body
function, a court should consider the totality of the circumstances, including the nature and
extent of the injury, the treatment required, the duration of the impairment, the extent of residual
impairment and the prognosis for eventual recovery. Kreiner, supra at 133-134. In assessing
whether the course of one’s normal life has been affected, a court should compare the
individual’s lifestyle before and after the injury. Id. An injury need not be permanent to be an
impairment of an important body function. Id. at 135.
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Defendants do not challenge the conclusion that Shane’s injury meets the requirement of
an objectively manifested impairment. Although defendants do not expressly concede that the
use of one’s hand and wrist is an “important body function,” they also do not contend that it is
not. Under the facts of this case, it cannot be seriously disputed that Shane’s injury involved an
important body function since he lost complete use of his left hand for a period of time. See
Kreiner, id. at 134 (closed fracture, open wounds, tendon injuries to two fingers, and quarter-size
wound on the palm of non-dominant hand constituted an impairment of body function that was
objectively manifested).
The remaining question is whether the impairment affected Shane’s general ability to
lead his normal life. Id. at 132. Viewing the totality of the circumstances, and all five factors
listed in Kreiner, we conclude that Shane’s injury meets this threshold requirement under
Kreiner.
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.
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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).
Additionally, the medical record coincides with Shane’s deposition testimony, and
supports a conclusion, that his hand and wrist injuries have affected his “‘general ability’ to
conduct the course of his normal life.” Kreiner, supra at 133. 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.
Kreiner, supra at 134; McDanield, supra at 286. Accordingly, the trial court’s grant of summary
disposition in favor of defendants was improper.
Reversed.
/s/ Janet T. Neff
/s/ Henry William Saad
/s/ Richard A. Bandstra
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