PAOLA SALVATI V CHRISTOPHER MICHAEL STOICA
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STATE OF MICHIGAN
COURT OF APPEALS
PAOLA SALVATI,
UNPUBLISHED
July 17, 2008
Plaintiff-Appellant,
v
No. 275966
Genesee Circuit Court
LC No. 06-083364-NI
CHRISTOPHER MICHAEL STOICA,
Defendant-Appellee.
Before: Fitzgerald, P.J., and Talbot and Donofrio, JJ.
PER CURIAM.
In the case brought under Michigan no-fault insurance act, MCL 500.3101 et seq.,
plaintiff appeals of right from the trial court’s order granting summary disposition in favor of
defendant pursuant to MCR 2.116(C)(10). We affirm.
Plaintiff was in an automobile accident in March 2004. She was taken to the hospital,
where she was examined and released. Shortly afterward, plaintiff visited her family doctor
complaining of pain in her neck. Plaintiff’s doctor diagnosed a herniated disc in plaintiff’s spine,
and advised plaintiff not to strain her neck. Plaintiff visited her doctor concerning her pain on
three or four occasions. According to plaintiff, her pain has not improved since the accident.
She asserts that she cannot lift heavy objects or do certain repetitive tasks like sweeping, but she
maintains that she is able to care for her home and her children. Plaintiff has had several jobs
since the accident, but left each one for reasons largely unrelated to her pain.
A plaintiff can recover noneconomic damages in a motor vehicle negligence action “if
the injured person has suffered death, serious impairment of body function, or permanent serious
disfigurement.” MCL 500.3135(1). The term “serious impairment of body function” is defined
by statute as “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).
Whether a plaintiff’s injury reaches the serious impairment of body function threshold is
a question for the court to decide if no issue of material fact exists. Behnke v Auto Owners Ins
Co, 474 Mich 1004, 1005; 708 NW2d 102 (2006). The inquiry is focused on three issues: (1)
whether a body function is impaired, (2) whether the impairment is objectively manifested, and
(3) whether the impairment affects the person’s ability to live a normal life. Kreiner v Fischer,
471 Mich 109, 131-132; 683 NW2d 611 (2004). Objective manifestation of an impairment
“requires that a plaintiff's injury must be capable of objective verification by a qualified medical
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person either because the injury is visually apparent or because it is capable of detection through
the use of medical testing.” Netter v Bowman, 272 Mich App 289, 305; 725 NW2d 353 (2006).
The trial court found that plaintiff did not meet this test because the course of her normal
life had not been sufficiently affected by her injuries. While defendant asserted that plaintiff’s
injuries were pre-existing, and not caused by the accident, the court implicitly found this issue of
fact to be immaterial to his decision.
“In determining whether the course of the plaintiff’s normal life has been affected, a
court should engage in a multifaceted inquiry, comparing the plaintiff’s life before and after the
accident as well as the significance of any affected aspects on the course of the plaintiff’s overall
life.” Kreiner, supra at 132-133. Kreiner noted that “[m]erely 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. (internal quotations and emphasis removed). The Court gave
a “nonexhaustive” list of factors to consider: “(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. at 133. The duration
of the impairment may not be established by self-imposed restrictions, but must be evidenced by
physician-imposed restrictions. Id. n 17. The focus is on injuries affecting how the body
functions, not on a plaintiff’s pain and suffering. Netter, supra at 295. An injury that affects the
person’s general ability to lead his or her normal life does not need to be permanent but must be
of sufficient duration to affect the course or trajectory of the plaintiff’s life. Kreiner, supra at
135.
Plaintiff likens her situation to that of the plaintiff in McDanield v Hemker, 268 Mich
App 269; 707 NW2d 211 (2005). In McDanield, the Michigan Court of Appeals applied the
Kreiner analysis to find that a plaintiff’s head and neck injuries had affected her ability to lead
her normal life, based on the following facts:
McDanield’s injuries resulted in her being out of work approximately six to seven
months, needing assistance from coworkers while currently employed because of
the pain, having to forgo recreational activities once enjoyed, significantly
curbing her household chores, limiting her gardening activities, interfering with
her sleep habits, decreasing intimacy with her husband, and has resulted in years
of visits to doctors for tests and treatments, which treatments included the use of
pain medications, nerve blocks, muscle relaxers, and physical therapy, with a
prognosis that she will continue with such a regimen, in whole or in part, because
she will most likely have pain for the remainder of her life. [Id .at 281.]
The present case is distinguishable from McDanield. In McDanield, the plaintiff was out
of work for several months, and then underwent a difficult transition back into work. Id. at 275277. In the present case, plaintiff was out of work for about two weeks, then moved between
jobs largely for reasons unrelated to her injuries. The plaintiff in McDanield had to abandon
several recreational activities as well as some of her household chores because of her disability,
leaving the chores to her children. Id. at 280. Plaintiff here admits that she continues to walk
and swim with her children, and is able to manage her household, though she experiences pain
while doing so.
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Perhaps most telling, the plaintiff in McDanield saw her primary-care physician and a
pain specialist regularly for years in an attempt to gain some relief from her pain. Id. at 275-279.
Her pain specialist concluded that her injuries were permanent and would require continuing
treatment. Id. at 278. Plaintiff, by contrast, visited with her primary care physician on only three
or four occasions shortly after the accident. She failed to document any stay-home
recommendations or restrictions.
While the five factors mentioned in Kreiner are not dispositive, they are enlightening in
this case. The “nature and extent” of plaintiff’s impairment is the first factor. Kreiner, supra at
133. Plaintiff’s impairment is based on an upper back injury. It has been found that the
movement of the back is considered an important body function. Shaw v Martin, 155 Mich App
89, 96; 399 NW2d 450 (1986). And while the nature of back injuries can be quite severe and
debilitating, the extent of plaintiff’s injury seems limited. For example, plaintiff is able to swim,
exercise, to care for her children, and take care of her household. She was also able to hold
down a series of jobs. While plaintiff has experienced some variation to her lifestyle, minor
lifestyle changes, although frustrating, do not necessarily rise to the level of affecting plaintiff’s
ability to lead her normal life. See Behnke, supra at 1005.
The second factor, plaintiff’s treatment for her impairment, Kreiner, supra at 133, has
been negligible in both type and length. She visited her primary-care physician on a few
occasions shortly after her accident, but she has not sought continuing help for her pain, and has
failed to establish that her doctor restricted her activities in any way.
The third and fourth factors are “the duration of the impairment” and “the extent of any
residual impairment.” Id. Presumably, plaintiff’s original impairment was the initial injury from
the accident, which caused her to miss two week’s work at the bakery. Her residual impairment
would be the extent to which she continues to suffer from those injuries. Plaintiff has provided
little to no evidence of her residual impairment other than her own testimony, which centers on
limitations she has placed on herself. “Self-imposed restriction, as opposed to physicianimposed restriction, based on real or perceived pain do not establish” plaintiff’s residual
impairment. Id. at n 17.
The final factor, “the prognosis for eventual recovery,” probably militates in favor of
plaintiff to the extent that she is currently impaired. Id. at 133. Her physician diagnosed her
with a ruptured disc, but did not recommend surgery or physical therapy. With no planned
resolution, plaintiff will presumably continue to suffer in the same manner she has been.
Plaintiff compares this case with McDanield, but the present case is more closely
comparable to Behnke. In Behnke, the Michigan Supreme Court found that a plaintiff was
“generally able to lead his normal life” where the trial court found the following facts:
“‘As a result of the accident plaintiff was never hospitalized nor
underwent surgery. He was off work for eight weeks, but has since worked full
time both as a welder and sawyer. He went to physical therapy on one occasion
and did not return. No doctor has placed plaintiff on medical or work restrictions.
Further, the headaches and neck pain do not limit range of motion other than such
motion normally associated with headaches and occasional neck pain. Currently,
plaintiff takes non-prescription medication for his headaches.’” [Behnke, supra,
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474 Mich at 1004, quoting Behnke v Auto Owners Ins Co, unpublished opinion
per curiam of the Court of Appeals, issued September 16, 2004 (Docket No.
248107) (Griffin, J., dissenting), p 3 (quoting trial court).]
Plaintiff’s life has remained generally the same before and after her accident. While she
left her employment, her leaving was due, largely, to factors other than her injuries. While
plaintiff complains of pain, she has not let that pain stop her from being a full-time mother to her
two children. She takes them swimming, to the park, for walks, and to various school and
church functions. In this case, “the ultimate question that must be answered is whether the
impairment ‘affects the person’s general ability to conduct the course of his or her normal life.’”
Kreiner, supra at 134. Because plaintiff’s impairment has not, overall, altered the trajectory of
her normal life, she was not entitled to collect noneconomic damages under the no-fault
insurance act.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
/s/ Pat M. Donofrio
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