GARY MARK MCMANIGAL V GEORGE JAN LEVOSINSKI
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STATE OF MICHIGAN
COURT OF APPEALS
GARY MARK McMANIGAL,
UNPUBLISHED
February 3, 2009
Plaintiff-Appellee,
v
No. 283030
Oakland Circuit Court
LC No. 2007-080823-NI
GEORGE JAN LEVOSINSKI,
Defendant-Appellant.
Before: Hoekstra, P.J., and Fitzgerald and Zahra, JJ.
PER CURIAM.
Defendant appeals by leave granted from an order denying his motion for summary
disposition pursuant to MCR2.116(C)(10). We reverse and remand for further proceedings.
This appeal has been decided without oral argument pursuant to MCR 7.214(E).
Plaintiff sued defendant for injuries sustained in an automobile-motorcycle collision on
May 31, 2004. Plaintiff suffered “an avulsion fracture off of the ulnar base of the proximal
phalanx” on his right thumb in the collision. A treating physician placed plaintiff’s right hand in
a thumb cast for two and one-half weeks, then replaced the cast with a thumb splint for an
additional ten days. In a December 21, 2004 letter, plaintiff’s doctor, Corey Haber, D.O.,
indicated that plaintiff continued to report pain when flexing and extending his thumb. He also
stated that the healed fracture had resulted in a mild decreased range of motion of about 15%,
and that he thought it a “good likelihood” that plaintiff would suffer from traumatic arthritis in
this joint “in the years to come”. As indicated by subsequent reports from Dr. Haber in March
and December of 2007, the changes in plaintiff’s range of motion and his continued pain appear
to be permanent, as does mildly decreased grip strength.
Plaintiff testified at deposition that, from 1998 until April 2004, he had been employed as
a property manager at an apartment complex. His employment ended for reasons unrelated to
the accident. In October 2004, he was hired as a property manager at another apartment
complex, and he worked at that job until laid off in October 2006. From January to October
2006, plaintiff also worked as a painter. He earned approximately $75,000 during that period.
Plaintiff testified that he had no trouble performing his job duties as a result of his injury,
and that no physician placed any restrictions on the type of work he should perform. However,
in a December 15, 2007 letter, Dr. Haber stated that, because plaintiff’s injury involved his
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dominant hand and he continued to experience pain and weakness, Dr. Haber anticipated that
plaintiff’s injury would restrict his ability to use certain hand tools or “vibratory” tools.
Plaintiff maintained that he was unable to do certain things around the house during the
time his thumb was in a cast or splint, but he was later able to perform normal household tasks
and chores without assistance. Before the collision, plaintiff would hunt, fish, bicycle, ride his
motorcycle, snowmobile, bowl, and play pool. Plaintiff resumed most of these activities after the
cast and splint were removed. Plaintiff testified that he still hunts, rides a bicycle, fishes, and
plays pool, although he noted some changed capacity in his ability to hunt or fish. He still owns
and rides a motorcycle. He testified that extreme cold might stop him from snowmobiling,
because his thumb hurts in the cold, and because the machine required the full use of his thumb
to operate. Nothing about his condition appears to have affected plaintiff’s ability to travel.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that
there was no genuine issue of material fact that plaintiff could not show a serious impairment of
body function as required by MCL 500.3135(1). The circuit court denied the motion, finding
that plaintiff had demonstrated that his injuries had affected his ability to lead his normal life.
Defendant argues that the trial court should have granted its motion for summary
disposition on the ground that plaintiff failed to show that he suffered a threshold injury. We
review a trial court’s decision on a motion for summary disposition de novo. Auto Club Group
Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
Pursuant to MCL 500.3135, a person is subject to tort liability for noneconomic loss
caused by his use of a motor vehicle only if the injured person has suffered death, serious
impairment of a body function, or permanent serious disfigurement. 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 or her normal life.” MCL 500.3135(7).
Under Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004), the reviewing court is to
determine whether a factual dispute exists “concerning the nature and extent of the person’s
injuries; or if there is a factual dispute, that it is not material to the determination whether the
person has suffered a serious impairment of body function.” Id. at 131-132. If there are material
factual disputes, a court may not decide the issue as a matter of law. If no material question of
fact exists regarding the nature and extent of the plaintiff's injuries, the question is one of law.
Id. at 132.
When a court decides the issue as a matter of law, it must then proceed to the second step
in the analysis and determine whether “an ‘important body function’ of the plaintiff has been
impaired.” Id. When a court finds an objectively manifested impairment of an important body
function, “it then must determine if the impairment affects the plaintiff’s general ability to lead
his or her normal life.” Id. This process involves an examination of the plaintiff’s life before
and after the accident. The court should objectively determine whether any change in lifestyle
“has actually affected the plaintiff’s ‘general ability’ to conduct the course of his life.” Id. at
132-133. “Merely ‘any effect’ on the plaintiff’s life is insufficient because a de minimus effect
would not, as objectively viewed, affect the plaintiff’s ‘general ability’ to lead his life.” Id. at
133. The Kreiner Court provided a non-exclusive list of objective factors that may be used in
making this determination. These factors include:
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(a) the nature and extent of the impairment, (b) the type and length of treatment
required, (c) the duration of the impairment, (d) the extent of any residual
impairment, and (e) the prognosis for eventual recovery. Id.
In addition, “[s]pecific activities should be examined with an understanding that not all activities
have the same significance in a person’s overall life.” Id. at 131. Thus, where limitations on
sporting activities “might not rise to the level of a serious impairment of body function for some
people, in a person who regularly participates in sporting activities that require a full range of
motion, these impairments may rise to the level of a serious impairment of a body function.”
Williams v Medukas, 266 Mich App 505, 509; 702 NW2d 667 (2005). However, “a negative
effect on a particular aspect of an injured person’s life is not sufficient in itself to meet the tort
threshold, as long as the injured person is still generally able to lead his normal life.” Kreiner,
supra at 137.
Specifically in regard to residual impairments, the Kreiner Court noted, “Self-imposed
restrictions, as opposed to physician-imposed restrictions, based on real or perceived pain do not
establish this point.” Id. at 133 n 17. However, this Court has held that “[t]he necessary
corollary of this language is that physician-imposed restrictions, based on real or perceived pain,
can establish the extent of a residual impairment.” McDanield v Hemker, 268 Mich App 269,
283-284; 707 NW2d 211 (2005). A physician need not offer a medically identifiable or
physiological basis for imposing restrictions based on pain; however, a recitation of a
physiological basis provides support for the conclusion that the restrictions are physicianimposed, rather than self-imposed. Id. at 284. In addition, this Court has recognized the
difference between self-imposed limitations due to pain, and self-imposed limitations based on
physical inability, which can support a finding that the plaintiff has suffered a threshold injury.
Id. at 283-284.
In this case, plaintiff has arguably shown that he suffered an impairment of an ‘important
body function’ and that this impairment was objectively manifested. However, we find that the
trial court erred when it held that plaintiff had suffered serious impairment as that definition has
been interpreted in Kreiner. The nature and extent of plaintiff's impairment does not approach
those suffered by the plaintiff Straub in the companion case to Kreiner, or by the plaintiff
Kreiner himself, neither of whom was found to have met the threshold requirements for
recovery. Kreiner, supra at 122-127, 135-136. Plaintiff’s thumb was placed in a cast for two
and one-half weeks and was splinted for another ten days, with no apparent residual treatment.
Thus the “nature and extent of the impairment” and “the type and length of treatment required”
were not extensive. Plaintiff’s residual injuries are arguably permanent. The limitations plaintiff
suffers are based, at least in part, on physical limitations of his range of motion. However, these
residual effects are not extensive. Plaintiff’s injury has to this point had little to no impact on his
ability to work. Even crediting Dr. Haber’s recent proposed work limitations as valid, they
would not impact plaintiff’s ability to continue to work as the manager of an apartment complex,
or as a painter. Plaintiff has shown little impact on his daily activities, such as his ability to
perform chores around his home. Nor do plaintiff’s limitations greatly affect his ability to pursue
his other interests. Of those listed, his ability to bowl seems the most impacted here, with
perhaps his ability to snowmobile being also affected. The effects on the remainder of plaintiff’s
activities are minor.
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As a result, we find that, while plaintiff can demonstrate an actual injury with ongoing
residual effects, he does not meet the stringent standards outlined in Kreiner.
Reversed and remanded for entry of summary disposition in favor of defendant. We do
not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Brian K. Zahra
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