Michigan Court of Appeals; Docket #265973; Unpublished
Judges Markey, Schuette, and Borrello; 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 [3135(7)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Permanent Serious Disfigurement Definition [3135(1)]
Determining Permanent Serious Disfigurement As a Matter of Law [3135(1)(2)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious impairment of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 affirmed the trial court order granting summary disposition in favor of defendant on plaintiff’s claim for non-economic losses. The plaintiff in this case sustained ill-defined injuries to her left shoulder, neck, back, jaw and hips. Plaintiff had shoulder surgery and was off work for about one year. When she was released to work, she had a five-pound lifting restriction. However, she testified the restriction did not affect her ability to perform her job duties. As to her hip injury, plaintiff testified that it had resolved with physical therapy. Plaintiff also testified that she could perform her household chores, but that she sometimes experienced pain. In addition, plaintiff testified that since the accident, she experiences pain when she bowls, she cannot play volleyball, softball, bow hunt or serve as a volunteer firefighter.
On appeal, plaintiff argued the trial court improperly focused on her testimony rather than on the objective medical evidence regarding her injuries, such as MRIs and doctor-imposed restrictions. In affirming, the Court of Appeals found that plaintiff’s testimony showed that her doctor-imposed restriction did not affect her general ability to lead her normal life. It also found that plaintiff’s objective medical evidence regarding her range of motion, strength and grip was consistent with plaintiff’s testimony that she could perform activities she had performed before the accident. In addition, the court found that even though plaintiff was off work for about a year, before her accident she was often unemployed for months at a time. Therefore, viewed in the context of plaintiff’s entire life, her temporary inability to work did not prevent her from being able to lead her normal life. Further, the court noted that plaintiff could perform her job without special accommodations and her self-imposed restrictions did not establish a residual impairment. In this regard, the court stated:
“Plaintiff injured her left shoulder, neck, and hips in the automobile accident. She was unable to work for a little over year at her seasonal, low-wage, part-time employment at a greenhouse, but she then obtained a more permanent job as a gas station clerk working about the same number of hours at a slightly higher hourly wage. Plaintiff testified that before the accident she had worked at a series of jobs for months at a time with a month or two of unemployment between jobs. She collected about $8,000 in no-fault work-loss benefits from her insurance carrier. With respect to her injuries, plaintiff testified that her hip problem was resolved by physical therapy but her neck and shoulder continued to bother her. . . .
In addition, plaintiff argues that the trial court erred by focusing on her testimony to the exclusion of the medical evidence she presented. But plaintiff’s testimony demonstrates the lifting restriction imposed by her doctor have not prevented her from working or engaging in non-work activities. Rather, the medical reports support the conclusion that plaintiff’s accident caused injuries have not impaired her body functions. Although medical reports document that plaintiff sustained cervical strain and problems with her hips, which physical therapy resolved within weeks, magnetic resonance imaging (MRI) testing on November 3, 2002, and surgery performed on plaintiff’s shoulder on December 23, 2002, uncovered only degenerative changes, not traumatic injuries. Although the medical reports document plaintiff’s persistent complaints of pain, physical examinations of plaintiff both before and after her surgery demonstrated that she possessed full range of motion of her left shoulder, her neurovasular status was intact, and she had no sensation loss. Before her surgery, Dr. Nallamothou reported on August 27, 2002, that plaintiff possessed good abduction strength, good external rotation strength, and good grip strength. Thus, although the medical reports repeat plaintiff’s claims that certain movements were painful, her range of motion, strength, and grip remained intact. The medical reports are therefore consistent with plaintiff’s testimony: she could perform activities that she had performed before the accident, but certain movements might be painful.
In sum, doctor-imposed restrictions have not established that plaintiff has an ‘objectively manifested impairment of an important body function that affects [her] general ability to lead . . . her normal life.’ MCL 500.3135(7). Unlike the plaintiff in Moore, here, plaintiff can perform her job without special accommodation, aides, or training. Further, pain induced, self-imposed restrictions, which according to plaintiff’s testimony precluded her from playing softball and volleyball, cannot establish plaintiff has a residual impairment. . . .
Although plaintiff was off work for a little over a year after the accident, she had experienced unemployment before the accident for months at a time. Viewed in the context of plaintiff’s entire life, neither the inability to work for a year, nor limitations on playing softball or volleyball, have prevented plaintiff from being generally able to lead her normal life. Similarly, plaintiff lived with the pain of migraine headaches before the accident and continued to live with them after the accident. Although plaintiff claimed her headaches increased after the accident, she also denied that her headaches were caused by the accident. Moreover, although plaintiff claim[s] many movements cause her pain, the no-fault threshold is not satisfied by subjective complaints of pain which cannot establish a residual impairment.”
Plaintiff also argued the trial court improperly granted defendant summary disposition on her claim in which she alleged that her surgical scar constituted permanent serious disfigurement. The Court of Appeals disagreed, noting that plaintiff failed to present evidence the scar is particularly hideous, painful or in what way the scar affects her general ability to lead her normal life. In this regard, the court declared:
“Finally, plaintiff argues her surgical scar is a ‘permanent serious disfigurement.’ But she fails to highlight any evidence that the scar is particularly hideous, painful, or otherwise limits her ‘general ability to lead . . . her normal life.’ . . . Accordingly, her claim in this regard fails as a matter of law.”
