Michigan Court of Appeals; Docket #260033; Unpublished
Judges White, Fitzgerald, and Talbot; 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)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion decided without oral argument after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of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 affirmed the trial court order granting summary disposition in favor of defendant on plaintiff’s claim for non-economic losses. The 63-year-old plaintiff in this case sustained ill-defined back and shoulder injuries for which he underwent arthroscopic surgery to the shoulder. Plaintiff was off work for about six weeks before he was ultimately terminated. He did not seek alternate employment. Plaintiff testified that due to his injury, he could no longer rollerblade or fast dance and that although he still did his woodworking and crafts and participated in craft shows, he needed help setting up his display. Plaintiff further testified that he was able to shovel snow, but that it was painful. In affirming, the Court of Appeals agreed that plaintiff’s injuries did not affect his general ability to conduct the normal course of his life. In so finding, the court noted that although plaintiff no longer participated in all the activities in which he participated before his accident, he had no doctor-imposed restrictions. Likewise, plaintiff was not restricted from work, he simply choose not to seek a new job. In this regard, the court stated:
“Although plaintiff stated that he did not engage in all of the recreational activities that he did before the accident, there was no evidence that a physician restricted him from these activities. Self-imposed restrictions do not establish residual impairment. . . . ‘[T]he extent of this residual impairment cannot be proven by way of self-imposed restrictions based on real or perceived pain. Stated differently, [plaintiff] cannot establish the extent of [his] residual impairment by merely claiming that [he] has restricted [himself] from engaging in activities or making certain movements because [he] experiences pain.’ . . . Similarly, plaintiff’s decision not to seek employment after he was discharged was essentially a self-imposed restriction based on pain, and for that reason is inadequate to establish residual impairment. The records include references to physician-imposed work restrictions, but only for limited periods of time. ”
The court next explained that although residual impairment is not necessary to establish a threshold injury, plaintiff failed to show how his condition during his period of recuperation affected the course of his normal life. In this regard, the court explained:
“The period during which plaintiff recovered from arthroscopic surgery to his shoulder may have provided a basis for plaintiff to argue for an impairment of short duration that nevertheless met the statutory threshold. The discharge summary report indicates that he was placed in a shoulder immobilizer and would remain in it for four weeks before beginning physical therapy. It further indicates that the doctor anticipated work restrictions for four to six months. However, plaintiff did not present any evidence concerning his condition and circumstances during that period of recuperation. Thus, there is no basis for concluding that the impairment during this period of recuperation had an extensive effect on plaintiff’s life. . . . Summary disposition was properly granted in favor of defendant.”
