Leonelli v. McMullen

POPOVICH, Judge,

dissenting.

I respectfully disagree with the majority’s conclusion that there is sufficient evidence tending to show that appellant suffered “serious injury,” i.e., serious impairment of body function. While I agree that appellant submitted sufficient evidence to support her claim that she sustained an impairment to the use of her back, left arm and left leg, I cannot find that such impairment was “serious.” Rather, the evidence tends to show that the consequences of appellant’s injury have not had a serious impact for an extended time on her life. Appellant’s normal activities have not been curtailed significantly since the accident. In fact, as the majority notes, the evidence reveals that prior to the accident, appellant was unemployed and that during her recovery she was seeking employment. Approximately fifteen months after the accident, she was employed as a medical transcriber. She testified that she is able to sit at the computer for eight to nine hours per day and that she works approximately forty hours per week. While appellant experiences pain while performing her work duties, the pain does not stop her from engaging in these duties. She identified no restrictions imposed by her physician on her work duties.1 Moreover, appellant claimed that she no longer engages in recreational gardening or restoring her home. However, she identified no restrictions imposed by her physician on these activities. Dodson v. Elvey, 445 Pa.Super. 479, 665 A.2d 1223 (1995), allocatur granted, 544 Pa. 608, 674 A.2d 1072 (1996) (finding no serious impairment where appellant no longer engaged in bowling, weightlifting or softball, but physician never imposed restrictions on these activities). She admits that she engages in aerobic exercise approximately three times per week. Also, treatment during appellant’s period of recovery involved anti-inflammatory medications, physical therapy, ice, ultrasound, acupuncture and an injection. Appellant has not been hospitalized nor has her injury required surgery. She has not worn a collar, brace or prosthetic device following the accident. Murray v. McCann, 442 Pa.Super. 30, 658 A.2d 404 (1995). The record contains a medical report from Jon J. Glass, M.D., who examined appellant on February 24, 1996. He found that, on the day of the examination, there were no abnormalities present and that there were no limitations in appellant’s range of motion. He stated that in his medical opinion “Ms. Leonelli’s reported injuries, as a *530result of the motor vehicle accident, have resolved completely. No further treatment is necessary or recommended. There is no permanent impairment as a result of the accident.”

Based on the foregoing, I believe that the evidence reveals an objectively identifiable injury which has resolved, leaving only slight functional limitations. Although this Court recognizes that subjective complaints of pain may result in a serious impairment of body function, this is not such a ease. Dodson, supra. While I do not doubt that appellant experienced pain, I conclude that the record shows no serious interference with her daily life for an extended period of time, and that there is no triable issue of fact that she suffered a minor rather than a serious injury. Accordingly, I respectfully dissent and would affirm the trial court’s grant of summary judgment.

. While I agree with the majority that appellant’s employment is not conclusive as to whether her injuries were serious under the MVFRL, I find that her employment and the circumstances thereof are an important factor to be considered. See Dodson, supra.