RICHARD ADAM KREINER V ROBERT OAKLAND FISCHER
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
June 3, 2003
9:00 a.m.
No. 225640
Lapeer Circuit Court
LC No. 98-026072-NI
ON REMAND
RICHARD ADAM KREINER,
Plaintiff-Appellant,
v
ROBERT OAKLAND FISCHER,
Defendant-Appellee.
Updated Copy
July 7, 2003
Before: White, P.J., and Murphy and Fitzgerald, JJ.
MURPHY, J.
This appeal, involving the issue whether plaintiff suffered a "serious impairment of body
function," as defined in MCL 500.3135(7), is once again before us by order of the Michigan
Supreme Court, which, in lieu of granting leave to appeal, vacated our previous decision, Kreiner
v Fischer, 251 Mich App 513; 651 NW2d 433 (2002), and remanded the matter for further
proceedings consistent with the order. 468 Mich 884 (2003). The Supreme Court remand order
provided, in pertinent part:
The no-fault act, MCL 500.3135(7), defines "serious impairment of body
function" as "an objectively manifested impairment of an important body function
that affects the person's general ability to lead his or her normal life." The circuit
court granted defendant's motion for summary disposition, concluding that
plaintiff's impairment is not "serious enough" to meet the tort threshold. The
Court of Appeals reversed, concluding that plaintiff is not required to show that
his impairment "seriously" affects his ability to lead his normal life in order to
meet the tort threshold. The Court of Appeals then concluded that, if the facts as
alleged by plaintiff are true, his impairment has affected his general ability to lead
his normal life. In our judgment, both the circuit court and the Court of Appeals
erred. Although a serious effect is not required, any effect does not suffice either.
Instead, the effect must be on one's general ability to lead his normal life.
Because the Supreme Court believes that neither of the lower courts accurately
addressed this issue, the case is remanded to the Court of Appeals for it to
consider whether plaintiff's impairment affects his general ability to lead his
normal life. [Id. at 884-885 (emphasis in original).]
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After consideration of the Supreme Court's remand order, we again reverse the trial
court's judgment granting defendant's motion for summary disposition. Our Supreme Court's
order does not change in any manner a significant portion of our analysis in the previous opinion;
therefore, because the Supreme Court's order vacated our entire opinion, we find it appropriate
and necessary to incorporate and adopt here that portion of our earlier opinion. We stated in
Kreiner, supra at 514-518, in part:
Under the no-fault act, a plaintiff may recover noneconomic losses only if
the plaintiff has suffered "death, serious impairment of body function, or
permanent serious disfigurement." MCL 500.3135(1).
Pursuant to MCL 500.3135(2)(a), the issue whether an individual has
suffered serious impairment of body function is a question of law for the trial
court to decide if the court finds either of the following:
(i) There is no factual dispute concerning the nature and extent of the
person's injuries.
(ii) There is a factual dispute concerning the nature and extent of the
person's injuries, but the dispute is not material to the determination as to whether
the person has suffered a serious impairment of body function or permanent
serious disfigurement.
Issues of law, as well as rulings on motions for summary disposition, are
reviewed by this Court de novo. Armstrong v Ypsilanti Charter Twp, 248 Mich
App 573, 582-583; 640 NW2d 321 (2001).
We read MCL 500.3135(2) as requiring a trial court to determine, as a
matter of law, whether a plaintiff has suffered serious impairment of body
function where there is no factual dispute, or where the facts are in dispute, but
the disputed facts are not outcome-determinative with respect to a proper
resolution of determining serious impairment. Kern v Blethen-Coluni, 240 Mich
App 333, 341-342; 612 NW2d 838 (2000). Because MCL 500.3135(2) is not all
encompassing, the Legislature apparently intended that in limited circumstances,
a jury would resolve material or outcome-determinative factual disputes, and in so
doing, would determine whether a plaintiff suffered a serious impairment of body
function.1 See Kern, supra at 341-344.
MCL 500.3135(7) provides: "As used in this section, 'serious impairment
of body function' means an objectively manifested impairment of an important
body function that affects the person's general ability to lead his or her normal
life."
Questions regarding statutory interpretation are reviewed de novo. In re
MCI Telecommunications Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999).
Recently our Supreme Court in Roberts v Mecosta Co General Hosp, 466 Mich
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57, 63; 642 NW2d 663 (2002), reaffirmed the following rules concerning
statutory interpretation:
"An anchoring rule of jurisprudence, and the foremost rule of statutory
construction, is that courts are to effect the intent of the Legislature. People v
Wager, 460 Mich 118, 123, n 7; 594 NW2d 487 (1999). To do so, we begin with
an examination of the language of the statute. Wickens v Oakwood Healthcare
System, 465 Mich 53, 60; 631 NW2d 686 (2001). If the statute's language is clear
and unambiguous, then we assume that the Legislature intended its plain meaning
and the statute is enforced as written. People v Stone, 463 Mich 558, 562; 621
NW2d 702 (2001). A necessary corollary of these principles is that a court may
read nothing into an unambiguous statute that is not within the manifest intent of
the Legislature as derived from the words of the statute itself. Omne Financial,
Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999)."
The statutory definition of serious impairment in MCL 500.3135(7) can be
broken down into three requirements that must be established in order to find a
serious impairment of body function. First, there must be an objectively
manifested impairment. Second, the impairment must be of an important body
function. Third, the impairment must affect a person's general ability to lead his
or her normal life.
The facts not being contested for purposes of determining serious
impairment of body function indicate that following the motor vehicle accident,
plaintiff complained of lower back, right hip, and right leg pain. Objective
medical tests of plaintiff 's back indicated that plaintiff had radiculopathy, or a
malfunction, of the L4 nerve root, grade one to grade two spondylolysis (arthritic
like changes) between the L5 and S1 locations, degenerative disc disease, and
facet degenerative changes.2 Plaintiff 's doctor also found, on examination, sciatic
nerve irritation in plaintiff 's right leg. The doctor noted that plaintiff had
tenderness and stiffness in the lumbar region. The doctor further indicated that the
L4 radiculopathy could possibly heal, but the degeneration of plaintiff 's spine is
permanent.3 A number of treatments were attempted, but plaintiff did not respond
to physical therapy, he did not respond to nerve block injections, and he did not
respond to pain medication. Plaintiff 's doctor advised plaintiff to avoid lifting
anything over fifteen pounds and to avoid unnecessary bending and twisting.
Plaintiff had worked as a carpenter for about twelve years, doing "mostly
remodeling, decks, a little bit of everything; roofing, siding stuff like that."
The trial court found that plaintiff 's injuries were objectively manifested
on the basis of the medical examinations and tests, and that the impairment
involved an important body function, thereby satisfying the first two prongs of the
statutory definition of serious impairment of body function. We agree with the
trial court that plaintiff established an objectively manifested impairment of an
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important body function on the basis of the uncontested medical evidence
presented by plaintiff.4
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1
The Kern panel stated that "[a]bsent an outcome-determinative genuine factual
dispute, the issue of threshold injury is now a question of law for the court."
Kern, supra at 341. In Kern, id. at 343-344, this Court rejected the defendant's
assertion that the trial court correctly submitted the threshold determination to the
jury because issues of material fact existed. This Court did not simply dispose of
the issue on the basis that MCL 500.3135 no longer allowed a jury to determine
serious impairment of a body function but it instead ruled that there was no
genuine issue of fact to be decided. Kern, supra at 343-344. On the basis of Kern
and the plain language of MCL 500.3134(2), we can only conclude that a jury will
become involved in situations where there is a material factual dispute.
2
Plaintiff's doctor testified that one of the most common causes for degeneration
in the discs is trauma, especially in young people because degeneration typically
begins at age sixty or seventy. Plaintiff was thirty-four years old at the time of the
accident.
3
Plaintiff's doctor stated that the L4 radiculopathy can be permanent, or it can be
repaired, "because we're talking about irritation to a nerve and irritation could be
caused from direct or a blunt trauma to the nerve root at the time of the accident."
4
The movement of one's back is an important body function. Shaw v Martin,
155 Mich App 89, 96; 399 NW2d 450 (1986). The objective manifestations of a
back injury can be established through x-rays indicating an abnormal spine.
Sherrell v Bugaski, 140 Mich App 708, 711; 364 NW2d 684 (1984). Here, a
magnetic resonance imaging (MRI) examination and an electromyography (EMG)
showed the degeneration in the discs and radiculopathy. Plaintiff's doctor
testified that these are objective tests.
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At this point in our prior opinion, we began our review and analysis of the issue that has raised a
concern for our Supreme Court as indicated in the Court's remand order. In Kreiner, supra at
518, we stated:
[T]he trial court ruled that as a matter of law the impairment was not
"serious enough" to impinge on plaintiff 's ability to lead a normal life. This was
error. The third prong of the statutory definition explicitly requires only that the
impairment "affect[] the person's general ability to lead his or her normal life."5
MCL 500.3135(7) does not require any additional proof. It would be improper
for us to read any more requirements, limitations, or language into the
unambiguous statutory definition. Roberts, supra at 63.
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5
Plaintiff's doctor testified that one of the most common causes for degeneration
in the discs is trauma, especially in young people because degeneration typically
begins at age sixty or seventy. Plaintiff was thirty-four years old at the time of the
accident.
__________________________________________________________________
Our Supreme Court, in its remand order, clearly indicated its agreement with our
conclusion that a serious effect on a person's general ability to lead his or her normal life is not
required under MCL 500.3135(7) in order to establish a serious impairment of body function. In
reviewing our prior opinion, we did not state that any effect will suffice, but rather that "[t]he
third prong of the statutory definition explicitly requires only that the impairment 'affect[] the
person's general ability to lead his or her normal life.'" Kreiner, supra at 518, quoting MCL
500.3135(7)(omission in original). To the extent that our earlier opinion can be read to
implicitly suggest that any effect will suffice, and consistent with the Supreme Court's remand
order, we now make clear that any effect does not suffice to establish a serious impairment of
body function under MCL 500.3135, rather the effect must relate to a person's general ability to
lead his or her normal life. This leads to the issue regarding the meaning of the phrase "affects
the person's general ability to lead his or her normal life." MCL 500.3135(7).
The Supreme Court's remand order stated that the effect of the injury must be on one's
general ability to lead his or her normal life. The Court emphasized the word "general," thereby
indicating that we had failed to properly take the term into consideration in our analysis. The
Supreme Court did not expand or explain in any detail its position. Once again, we believe that
we addressed this issue in our prior opinion, Kreiner, supra at 518-519, wherein we stated:
The plaintiff 's deposition testimony indicated that, after the accident, he
continued to work as a carpenter, which forced him to perform some tasks that
were painful, and the pain limited his time to work on a project. Plaintiff stated
that he could no longer work eight hours a day but rather is limited to six hours a
day, that he can no longer do roofing work, that he can only do ladder work for
twenty minutes at a time, that he cannot lift more than eighty pounds, that he
cannot walk more than one-half mile, and that he can no longer participate in
certain types of recreational hunting.
If these facts were not in dispute, we would find that they satisfy the third
prong of the statutory definition, and plaintiff would be entitled to summary
disposition on the issue whether he suffered a serious impairment of body
function pursuant to MCL 500.3135(2)(a)(i), contrary to the trial court's ruling.6
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6
Plaintiff's normal life consisted of, in large part, working as a carpenter.
Plaintiff's employment was not an insignificant and occasional event in his life
but was instead a part of his normal routine. If plaintiff's testimony is true, the
impairment "affected" his general ability to lead his normal life by limiting his
activities as a carpenter. Plaintiff's ability to work a full eight-hour day was
reduced by twenty-five percent, and he testified he could no longer accept roofing
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jobs. Plaintiff was allegedly further limited in performing his job by weight and
movement restrictions.
__________________________________________________________________
We find that one's general ability to lead his or her normal life can be affected by an
injury that impacts the person's ability to work at a job, where the job plays a significant role in
that individual's normal life, such as in the case at bar. Employment or one's livelihood, for a
vast majority of people, constitutes an extremely important and major part of a person's life.
Whether it be wrong or right, our worth as individuals in society is often measured by our
employment. Losing the ability to work can be devastating; employment, regardless of income
issues, is important to a sense of purpose and a feeling of vitality. For those working a standard
forty-hour work week, a quarter of their lifetime before retirement is devoted to time spent on the
job. An injury affecting one's employment and ability to work, under the right factual
circumstances, can be equated to affecting the person's general ability to lead his or her normal
life. For many, life in general revolves around a job and work. It would be illogical to conclude
that where a person loses the ability to work because of an injury resulting from a motor-vehicle
collision, after being gainfully employed, the person's life after the accident, in general, would
be unaffected.
The Supreme Court's remand order can be read to require that when considering a
person's "general" ability to lead a normal life, the focus must be on multiple aspects of the
person's life, i.e., home life, relationships, daily activities, recreational activities, and
employment, and not solely on one area of the person's life such as employment. However, our
discussion in the preceding paragraph regarding the significance of employment is not contrary
to such a position. The employment facet of a person's life cannot be viewed in a vacuum; the
inability to work necessarily affects many aspects and areas of a person's life outside the job
itself. There can be no doubt that the inability to work affects home life and relationships and
creates and places monetary limits on daily and recreational activities. As such, an injury
impacting employment can affect a person's life in general. Moreover, injuries affecting the
ability to work, by their very nature, often place physical limitations on numerous aspects of a
person's life.
Here, there was documentary evidence presented by plaintiff that his ability to walk,
undertake certain physical movements, and engage in recreational hunting was limited by the
injury. These limitations along with plaintiff's alleged employment limitations, if true, indicate
that plaintiff suffered a serious impairment of body function under ยง 3135.
Because plaintiff remained employed and was working after the injury, the Supreme
Court's remand order might be read to suggest that the effect on one's employment must be
sufficiently serious in order to properly conclude that a person's general ability to lead his or her
normal life has been affected. However, such a reading would be contrary to the Supreme
Court's own determination that a serious effect is not required. Nevertheless, there was
documentary evidence presented indicating that plaintiff's ability to work a full eight-hour day
was reduced by twenty-five percent, that he could no longer do roofing jobs, that ladder work
was limited, and that there were weight and movement restrictions. These limitations, if proved,
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are significant enough to support a finding that plaintiff's impairment affected his general ability
to lead his normal life.
With a minor modification in the language, as reflected by and contained in brackets, and
additional guidance from this opinion, we incorporate and adopt our previous conclusion,
wherein we stated:
For purposes of clarity on remand, we provide the following direction to
the trial court. The court shall determine whether there are material issues of fact
regarding plaintiff 's claims relative to the effect of the injury on his [general]
ability to [lead his normal life]. In doing so, the court shall consider the
admissibility of the videotape offered by defendant. If the court determines that
there are no material factual disputes regarding plaintiff 's claimed limitations,
then the court shall grant summary disposition to plaintiff on the threshold issue
of serious impairment of body function. If the court determines that there are
factual disputes regarding plaintiff 's claimed limitations, then the matter shall be
submitted to the jury. [Kreiner, supra at 519.]
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ William B. Murphy
/s/ Helene N. White
/s/ E. Thomas Fitzgerald
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