ALISHA ANN RECKER V CHARTER COMMUNICATIONS HOLDING CO LLC
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STATE OF MICHIGAN
COURT OF APPEALS
ALISHA ANN RECKER,
UNPUBLISHED
May 12, 2009
Plaintiff-Appellant,
v
CHARTER COMMUNICATIONS HOLDING
COMPANY, L.L.C., and MICHAEL ALAN
WARNES,
No. 284676
Grand Traverse Circuit Court
LC No. 07-025927-NI
Defendants-Appellees.
Before: Sawyer, P.J., and Murray and Stephens, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendants’ motion for
summary disposition. We affirm. This appeal has been decided without oral argument pursuant
to MCR 7.214(E).
This is an automobile no-fault, threshold injury case, controlled by Kreiner v Fischer,
471 Mich 109; 683 NW2d 611 (2004). The trial court granted defendants’ motion for summary
disposition, concluding that plaintiff’s injuries had not affected her general ability to lead her
normal life, precluding suit under MCL 500.3135.
Plaintiff’s right wrist was fractured in an accident that occurred on October 17, 2006.
Plaintiff asserts that immediately after the accident she was unable to perform basic activities of
daily living, could not drive because the only vehicle available to her had manual transmission,
could not take notes during her college nursing classes, and could not work. Even now, plaintiff
continues to experience reduced range of motion and strength in her right hand and wrist. She
can no longer work as a waitress, which she had been doing before the accident. It continues to
be difficult for her to feed, hold, and carry her child.
Plaintiff’s physician’s last report was dated December 21, 2006, nine weeks after the
accident. The report stated that plaintiff was “getting along quite well” and had gotten “about
90%” of her extension back. The doctor concluded, “I’ll allow her to continue doing anything
she wants to do. She is back to work full duty. I am just going to follow her here on a p.r.n.
basis. I encouraged her to get the motion back and the strength back. I will see her back if she
needs anything.” In her deposition, plaintiff stated she had pain when opening heavy doors,
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lifting heavy objects, writing in school, and driving a vehicle with a manual transmission, and
that she no longer did yoga or rode her dirt bike because of the pain. However, she also stated
that there was no impact on the completion date of her studies, and that her inability to lift heavy
things had not affected her employment at a consignment shop.
This Court reviews de novo the grant or denial of a motion for summary disposition.
Kreiner, supra at 129. Within the no-fault act, MCL 500.3135(1) provides:
A person remains subject to tort liability for noneconomic loss caused by
his or her ownership, maintenance, or use of a motor vehicle only if the injured
person has suffered death, serious impairment of body function, or permanent
serious disfigurement.
MCL 500.3135(7) defines “serious impairment of body function” as “an objectively
manifested impairment of an important body function that affects the person’s general ability to
lead his or her normal life.” In Kreiner, supra at 130, our Supreme Court explained:
Determining whether the impairment affects a plaintiff's “general ability” to lead
his normal life requires considering whether the plaintiff is “generally able” to
lead his normal life. If he is generally able to do so, then his general ability to
lead his normal life has not been affected by the impairment.
The Kreiner Court continued:
Although some aspects of a plaintiff’s entire normal life may be interrupted by the
impairment, if, despite those impingements, the course or trajectory of the
plaintiff’s normal life has not been affected, then the plaintiff’s “general ability”
to lead his normal life has not been affected and he does not meet the “serious
impairment of body function” threshold. [Id. at 131.]
A “serious” effect is not required, but there must be more than just “any” effect. Id. at 131 n 14.
Courts may consider the nature and extent of the impairment, the type and length of treatment
required, the duration of the impairment, the extent of any residual impairment, the prognosis for
eventual recovery, or other objective factors. Id. at 133. However, the Kreiner Court warned,
“Self-imposed restrictions, as opposed to physician-imposed restrictions, based on real or
perceived pain do not establish [residual impairment].” Id. at 133 n 17. The inquiry is factspecific, requiring not just an examination of the impairment but on how it affects the normal life
of the injured person. Id. at 134 n 19.
The trial court did not err in concluding that plaintiff did not suffer a serious impairment
of body function. The court’s rationale was as follows:
The injuries that this woman suffered were in all honestly [sic] not very
significant. She had a broken wrist, it was treated by her doctor and within a few
days by an orthopedic surgeon. She spent something like seven weeks in casts of
various kinds, and her recovery was apparently prompt and unremarkable. Her
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own doctor released her two months after the accident, released her to work with,
to what he called, work full duty. There is no indication other than some selfreporting, which in the Kreiner case they indicate is not sufficient to indicate any
residual serious residual [sic] effects.
The medical reports indicate that the doctor was not only permitting plaintiff to use her hand and
wrist, but was encouraging her to do exercises so that she would recover her range of motion and
strength. The comments on the medical reports indicate she healed well and rapidly, and there is
no indication of any permanent injury.1 Indeed, within two months of the accident, plaintiff’s
doctor had returned her to work and allowed her to do whatever she wanted. This is quite similar
to the situation found insufficient by the Kreiner Court:
Straub’s treatment consisted of having his wounds sutured, wearing a cast,
and taking antibiotics and pain medication. Four days after the accident,
outpatient surgery was performed on the fingers and palm. The treatment was not
significant or long-term. Within two months, the fracture and surgical wounds
had healed. . . . Plaintiff estimated he was ninety-nine percent back to normal by
mid-January, 2000 [injury occurred in September 1999]. Given that Straub’s
injury was not extensive, recuperation was short, unremarkable, and virtually
complete, and the effect of the injury on body function was not pervasive, we
conclude that Straub’s general ability to live his normal life was not affected.
[Kreiner, supra at 135-136.]
The only limitations plaintiff is experiencing are self-imposed, and are due to pain and strength
limits, which the medical reports imply simply require some time and exercises to overcome.
The trial court correctly granted defendants’ motion for summary disposition.
Affirmed.
/s/ David H. Sawyer
/s/ Christopher M. Murray
/s/ Cynthia Diane Stephens
1
Because the plaintiff in Williams v Medukas, 266 Mich App 505, 509; 702 NW2d 667
(2005), suffered a permanent limitation in his right shoulder’s range of motion, that
decision does not control this case. There is no evidence of permanent injury and no
physician imposed restrictions on plaintiff’s activities.
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