DocketNumber： Docket 79935
Citation Numbers： 378 N.W.2d 532, 145 Mich. App. 516
Judges： V.J. Brennan, P.J., and D.E. Holbrook, Jr., and C.W. Simon, Jr.
Filed Date： 9/4/1985
Status： Precedential
Modified Date： 8/26/2023
Michigan Court of Appeals.
Kelman, Loria, Downing, Schneider & Simpson (by Nicholas J. Rine), for plaintiff.
Peter Harrington, for defendant.
Before: V.J. BRENNAN, P.J., and D.E. HOLBROOK, JR., and C.W. SIMON, JR.,[*] JJ.
PER CURIAM.
Plaintiff, Christine Denson, appeals as of right from Wayne County Circuit Court Judge Thomas Roumell's July 25, 1984, order which granted defendant summary judgment pursuant to GCR 1963, 117.2(3). Judge Roumell held as a matter of law that plaintiff did not suffer a serious impairment of body function. On appeal, plaintiff asserts that the lower court erred because she suffered objectively identifiable injuries to the musculature of the neck and upper back, causing her to become disabled and to give up important regular activities.
Plaintiff was injured on October 20, 1982, when defendant struck the rear of her vehicle while she was stopped in traffic. Plaintiff declined medical treatment at the scene and proceeded to take her automobile to a car dealership where she called a reative to pick her up. She went home and went *518 to bed. The next day she commenced treatment with Dr. Bader.
X-rays for fractures proved negative. Plaintiff was never hospitalized, and she conceded that her treatments were for muscle aches. She received injections and oral medication and she used a heating pad at home. Dr. Bader's December 28, 1983, report stated that plaintiff suffered from a dorsal vertebral strain and chronic cranio-cervical injury. Her medical care included 45 medical visits in the 14 months following the accident.
At the time of the accident, plaintiff was laid off from her employment as a school teacher and was collecting unemployment benefits. She informed the MESC that she was able to work without restrictions. At the time of the injury, she was also attending Wayne State University on a master's degree program. She did not recall missing any school.
She was still attending college at the time of her deposition and had become employed as a teacher in an alternative-education school. She did state that she could no longer make quick movements on her job, and she no longer engaged in swimming and tennis as she did before her injuries. Plaintiff asserts that, based upon these facts, there were objective findings in support of her soft-tissue injury that compelled the conclusion that she suffered a serious impairment of body function.
The issue for our consideration is whether the trial court erred in ruling as a matter of law that plaintiff's injuries did not constitute a serious impairment of body function within the meaning of MCL 500.3135; MSA 24.13135.
First, we disagree with plaintiff's assertion that a factual dispute existed on the nature and extent of her injuries which was material to a determination *519 of whether plaintiff suffered a serious impairment of body function. Our review of the record reveals that a material factual dispute did not exist regarding the nature and extent of plaintiff's injuries. Thus, under Cassidy v McGovern, 415 Mich. 483; 330 NW2d 22 (1982), reh den 417 Mich. 1104 (1983), the trial court could rule as a matter of law that plaintiff's injuries did not meet the threshold requirement of serious impairment of body function under MCL 500.3135; MSA 24.13135. See Braden v Lee, 133 Mich. App. 215; 348 NW2d 63 (1984), and Williams v McGowan, 135 Mich. App. 457; 354 NW2d 382 (1984).
In Williams v Payne, 131 Mich. App. 403, 409; 346 NW2d 564 (1984), this Court suggested the following standards to assist a court in making a legal determination of whether a plaintiff's injuries do constitute a serious impairment of body function:
"First, `impairment of body function' actually means `impairment of important body functions'. Cassidy v McGovern, 415 Mich. 504. Second, by its own terms, the statute requires that any impairment be `serious'. MCL 500.3135(1); MSA 24.13135(1); McKendrick v Petrucci, 71 Mich. App. 200, 210; 247 NW2d 349 (1976). Third, the section applies only to `objectively manifested injuries'. Cassidy v McGovern, 415 Mich. 505." (Emphasis in Payne.)
The Payne Court held that the plaintiff's injuries did not constitute a serious impairment of body function, despite the plaintiff's testimony of pain in the base of the thumb, since the injuries were not objectively manifested in a scientific or medical context. The Court stated that objective manifestation of symptoms in the form of pain was insufficient to meet the serious impairment of body function threshold and that the plaintiff was left *520 to her remedies under the no-fault act. Id., pp 409-410.
We disagree with plaintiff herein that there is a material factual dispute regarding the nature and extent of her injuries. While defendant did not introduce medical testimony of his own, a fair reading of the plaintiff's physician's reports and plaintiff's own testimony leads us to conclude, as did the trial court, that the plaintiff did not suffer a serious impairment of body function. The doctor placed no work or activity restrictions upon plaintiff, and she testified in her deposition that she never missed any work or school and that she never claimed to the MESC that she was unable to work during that period following the accident when she was receiving unemployment benefits.
Viewing the evidence in a light most favorable to plaintiff, it is not convincing to us that plaintiff changed her job because she was unable to cope with the physical demands of her former job. Rather, plaintiff seems to admit that this job change was more the result of personal preference. Nor do we think that plaintiff's discontinuance of her tennis and swimming activities is significant to establish her claim.
"A limitation self-imposed because of real or perceived pain is not objective manifestation." Salim v Shepler, 142 Mich. 145, 149; 369 NW2d 282 (1985).
It is our opinion that, on the facts presented here, plaintiff did not suffer a serious impairment of body function. "[P]laintiff's generalized assertions that she has resulting physical restrictions and still suffers from pain do not constitute a significant effect on her lifestyle nor an impairment of an important body function." Flemings v Jenkins, 138 Mich. App. 788, 790; 360 NW2d 298 (1984).
Affirmed.
[*] Circuit judge, sitting on the Court of Appeals by assignment.