Salim v. Shepler

• Decision Date: 19 June 1985
• Docket Number: Docket No. 79891
• Citation: Salim v. Shepler, 369 N.W.2d 282, 142 Mich.App. 145 (Mich. App. 1985)
• Parties: Afaf SALIM, Plaintiff-Appellant, v. Steven Shawn SHEPLER and Jane C. Shepler, Jointly and Severally, Defendants-Appellees. 142 Mich.App. 145, 369 N.W.2d 282
• Court: Court of Appeal of Michigan

Page 282

369 N.W.2d 282

Afaf SALIM, Plaintiff-Appellant, v. Steven Shawn SHEPLER and Jane C. Shepler, Jointly and Severally, Defendants-Appellees.

Docket No. 79891.

142 Mich.App. 145, 369 N.W.2d 282

Court of Appeals of Michigan.

Submitted March 20, 1985.

Decided April 16, 1985.

Released for Publication June 19, 1985.

[142 MICHAPP 146] Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Gregory M. Janks, Detroit, plaintiff-appellant.

Zweig & Harkness, P.C. by Warren M. Heitner, Southfield, for defendant-appellees.

Before WAHLS, P.J., and BRONSON and MEGARGLE, ^* JJ.

PER CURIAM.

Plaintiff was injured in an auto accident on September 4, 1981. She commenced an action on March 21, 1983, alleging serious impairment of body function. Defendants moved for summary judgment, pursuant to GCR 1963, 117.2(3), on the basis that plaintiff's injuries, assumed for purposes of the motion to be as plaintiff claimed them, did not meet the statutory threshold for recovery of noneconomic losses, M.C.L. Sec. 500.3135; M.S.A. Sec. 24.13135. The motion was granted and plaintiff appeals as of right. We affirm.

While plaintiff was driving her car on September 4, 1981, a wheel came off and plaintiff pulled to the side of the road. A man stopped and offered to call for assistance, so plaintiff remained in the car. A short while later, a van driven by defendant Steven Shepler and owned by his wife struck the rear end of plaintiff's vehicle. Plaintiff struck her [142 MICHAPP 147] forehead and blacked out momentarily. When emergency medical assistance arrived, plaintiff declined to go to the hospital in an ambulance but, apparently, went later with a relative and walked in.

At the hospital, plaintiff complained of a headache and pain in the left side of her neck. She was diagnosed as having an acute contusion to her forehead and acute cervical strain. X-rays revealed no abnormalities.

On September 11, 1982, plaintiff was examined by Dr. Joseph Berke, M.D., Ph.D., and began a course of treatment including analgesic medication, moist heat at home and physical therapy. Dr. Berke diagnosed posttraumatic cephalgia and cervical muscle strain. In a May, 1982, letter, he reported that neurologic examination continued to show limited range of motion, tenderness and muscle spasm. He felt that plaintiff could resume normal activity on January 11, 1982. In a letter written in June, 1984, Dr. Berke concluded that plaintiff had chronic cervical strain with persistent left shoulder pain, limited range of motion, spasticity and tenderness. He advised, "Activities which involve excessive or repetitive reaching and pulling as well as causing undue strain to the cervical region should be avoided."

Also on September 11, 1981, plaintiff saw Dr. D.L. Litzenberger, M.D. She complained of neck and shoulder problems. The doctor concluded that she had mild residuals of muscle strain but could do light work with her arms and could do regular work after one week. Plaintiff was an assembler at a Ford plant.

On October 20, 1981, Dr. S.M. Lele, M.D., examined plaintiff and concluded that she had normal function range, was fit for normal duties and did not require treatment. Further X-rays taken on [142 MICHAPP 148] October 23, 1981, were negative. On November 9, 1981, plaintiff was examined by Dr. Paul Forman, D.O., who concluded that three to four weeks of physical therapy to the neck and shoulder should return plaintiff to her full rehabilitative potential. On December 7, 1981, Dr. Forman could make no objective findings and concluded that plaintiff was not medically disabled. On December 10, 1981, Dr. Claude Oster, D.O., examined plaintiff, found no abnormalities and concluded that malingering had to be considered.

Plaintiff apparently returned to work on December 23, 1981, and continued to work until a seniority layoff in early 1982. Subsequently, because of a baby and other responsibilities, she remained unemployed.

While continuing treatment with Dr. Berke, on August 11, 1982, plaintiff went to Dr. Ronald D. Yelen, D.C., and commenced a course of chiropractic treatment. She complained of pain and stiffness in the neck and upper back, headaches, increased nervousness and irritability, and on rare occasions, a temporary numbness in the fingers of her left hand. Dr. Yelen concluded that she had spinal subluxations, pain, tenderness and spasticity.

At her deposition, plaintiff stated that her continuing problem was a feeling of weight or pressure on her shoulders. Her headaches had been severe, she said, for three to four months after the accident, and, subsequently, she had suffered only from tension headaches.

Pursuant to Cassidy v. McGovern, 415 Mich. 483, 330 N.W.2d 22 (1982), the court has the responsibility, if there is no material factual dispute as to the nature and extent of a plaintiff's injuries, to decide the threshold question of...