author: FILIPPINE, District Judge.

text:
    Lawrence PERRY, Plaintiff, v. CITY OF COUNTRY CLUB HILLS, a municipal corporation, Defendant.
    No. 82-0907C(2).
    United States District Court, E.D. Missouri.
    Sept. 30, 1983.
    On Motion to Strike Sept. 17, 1984.
    See also, D.C., 607 F.Supp. 776.

      John Valentine, St. Louis, Mo., for plaintiff.
    Carp & Morris, Ralph Levy, III, Clayton, Mo., for defendant.
   MEMORANDUM AND ORDER

FILIPPINE, District Judge.

This matter is before the Court on defendant’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant has filed suggestions, affidavits, and exhibits in support of its motion and plaintiff has filed suggestions in opposition thereto. On July 7, 1983, the Court held an evidentiary hearing on the issues presented by defendant’s motion.

Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, alleging that he was denied employment with defendant’s police department because he made a charge of discrimination against the Village of Bel-Ridge, Missouri. In support of its motion for summary judgment, defendant asserts that this Court does not have jurisdiction over this case because defendant is not an “employer” within the meaning of 42 U.S.C. § 2000e(b).

This subsection defines “employer” for purposes of the Act as:

[A] person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person....

Defendant contends that it is not an “employer” within the meaning of this subsection because it does not employ fifteen or more “employees”, as defined by 42 U.S.C. § 2000e(f), during the requisite period of time. “Employee” is defined by this subsection to mean:

[A]n individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.

42 U.S.C. § 2000e(f).

Defendant contends that five different classes of workers who are paid by the City should not be counted as “employees” for purposes of determining whether it is an “employer” under the Act. These classes include: (1) attorneys who were hired by the City as Municipal Judge, Prosecuting Attorney, and City Attorney; (2) elected officials; (3) appointed policy making officials; (4) CETA and SYEP workers; and (5) part-time employees.

Defendant first argues that the attorneys it hires as Municipal Judge, Prosecuting Attorney, and City Attorney are independent contractors and not “employees”. The vast majority of federal cases have held that independent contractors, as defined by common law agency principles, are not employees within the meaning of the Act. Cobb v. Sun Papers, Inc., 673 F.2d 337, 340-41 (11th Cir.1982); Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir.1980); Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C.Cir.1979); Armbruster v. Quinn, 498 F.Supp. 858, 860-61 (E.D.Mich.1980). The most important factor to be considered in determining whether a worker is an independent contractor or an “employee” is the extent of the employer’s right to control the means and manner of the worker’s performance. Cobb, 673 F.2d at 340; Spirides, 613 F.2d at 831-32. Other factors to be considered are:

(1) The .kind of occupation, with reference to whether the work is usually done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the “employer” or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the “employer”; (9) whether the worker accumulates retirement benefits; (10) whether the “employer” pays social security taxes; and (11) the intention of the parties. Cobb, 673 F.2d at 340; Spirides, 613 F.2d at 832.

With these factors in mind, the Court now turns to the evidence presented in the record. Robert Evans, Mayor of defendant City, states in his affidavit that:

[t]he City does not treat or consider any of these three attorneys employees of the City. The City maintains no control over how or when these attorneys perform their duties. The City withholds no monies from their fees for taxes or Social Security, nor does the City give them vacation or compensatory time, all of which the City does for its employees. The City does not provide the attorneys with an office, phone or the supplies necessary to do their respective jobs for the City; each attorney works out of his own office which he provides. Further, none of the attorneys worked nor were paid to work for the City for five (5) or more days per week or forty (40) hours per week. The Municipal Judge is hired to conduct Court once a month. The Prosecuting Attorney is hired to prosecute ordinance violations in Municipal Court. The City Attorney is hired to attend Board meetings once a month and advise the City. The City Attorney is also an appointed City official.

It appears to be clear to this Court that these attorneys are independent contractors under the analysis set forth in Cobb and Spirides, and are therefore not to be counted as “employees” when determining whether defendant is an “employer” within the meaning of the Act.

Next, defendant asserts that elected officials are specifically excluded from the definition of “employee” in 42 U.S.C. § 2000e(f). The Court concurs. This subsection clearly excludes “any person elected to public office in any State or political subdivision of any State by the qualified voters thereof.” Affiant Evans states that' the Mayor and the four members of the Board of Aldermen are the only officials elected by a vote of residents of the City. These officials, therefore, will not be counted as “employees” under the Act.

Defendant additionally argues that the Treasurer, City Clerk, Building Commissioner, Court Clerk, Collector, and Street Commissioner are “personal staff” or “appointee[s] on the policy making level” and therefore specifically excluded from the definition of “employee” .under 42 U.S.C. § 2000e(f). Affiant Evans states that these appointees are the only persons in their respective departments and that policy making and decisions in each department or City office were and are made in one of three ways: (1) by the department head with the Mayor’s approval; (2) by the Mayor with or after consultation with the department head; or (3) by the Board of Aldermen with or after consultation with the department head and Mayor. The appointees do not, however, have the power to hire or fire. Such power is vested solely in the Mayor and Board of Aldermen. Af-fiant Evans additionally asserts that these officials are on a policy making level of the Mayor’s staff and in their respective department.

The legislative history at 42 U.S.C. § 2000e(f) evinces a Congressional intent that the “personal staff” and “appointee on the policy making level” exemptions be construed narrowly.

It is the intention of the conferees to exempt officials and members of their personal staffs, and persons appointed by such elected officials as advisors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as cabinet officers, and persons with comparable responsibilities at the local level. It is the intent that this exemption shall be construed narrowly.

Joint Explanatory Statement of Managers at the Conference on H.R. 1746, 1972 U.S. Code Cong. & Adm.News 2137, 2179, 2180 (emphasis added). See also Anderson v. City of Albuquerque, 690 F.2d 796, 800 (10th Cir.1982); Howard v. Ward County, 418 F.Supp. 494, 502 (D.N.D.1976).

With this interpretative instruction in mind, the Court is unwilling, for purposes of a motion for summary judgment, to hold that these officials are exempted from the definition of “employee” under Title VII. There is no evidence before the Court as to these officials’ “level of personal accountability” to any elected officials so as fall under the “personal staff” exception. See Ramirez v. San Mateo County District Attorney’s Office, 639 F.2d 509, 513 (9th Cir.1981); Marafino v. St. Louis. County Circuit Court, 537 F.Supp. 206, 211 (E.D.Mo.1982). Additionally, the Court believes there is insufficient evidence regarding the specific responsibilities of each of these appointed officials to rule that these officials are “appointee[s] on the poli-cymaking level” as a matter of law. Several of these officials hold positions that have traditionally involved only ministerial types of duties. The Court is therefore hesitant to hold that these officials are on the policy making level without more specific evidence of their policy making functions. Accordingly, the Court will count these officials as “employees” for purposes of defendant’s motion.

As to CETA and SYEP workers, the testimony presented to the Court at the evidentiary hearing reveals the following facts:

(1) The federal government sets and pays the salary of CETA/SYEP workers;
(2) The guidelines for hiring CETA/SYEP workers are established by the federal government;
(3) The City could reject particular CETA/SYEP workers only upon a showing of cause (assuming, of course, that the City desired to continue to participate in the program);
(4) CETA/SYEP workers were screened by either the St. Louis County or Missouri State Unemployment Agency—not by the City;
(5) Individual CETA workers could work a maximum of 18 months for the City; SYEP workers could work a maximum of 8 months;
(6) The federal government set the maximum number of hours CETA/SYEP workers could work;
(7) Although the City withheld tax from the CETA/SYEP workers’ paychecks, it provided no benefits to these workers;
(8) The City supervised the work of the CETA/SYEP workers and made daily work assignments.

Only the fact that the City supervised the work of CETA/SYEP workers and made daily work assignments is somewhat indicative of the existence of an employer-employee relationship between these workers and the City. The Court finds that this fact, standing alone, is insufficient for the Court to hold that CETA/SYEP workers are “employees” within the meaning of 42 U.S.C. § 2000e(f). All the other facts surrounding these workers’ activities with the City persuades the Court to find that the workers are not “employees” of the City. Accordingly, the Court will not count these workers in determining whether defendant is an “employer” under Title VII. Accord, Dumas v. Town of Mount Vernon, 436 F.Supp. 866, 872-73 (S.D.Ala.1977), aff'd 612 F.2d 974 (5th Cir.1980).

After excluding attorneys, elected officials, and CETA/SYEP workers, it is clear from the exhibits presented to this Court by defendant that defendant did not employ fifteen or more employees in each of twenty or more calendar weeks in either 1979 or 1980. It is therefore unnecessary for the Court to decide whether defendant’s part-time workers were “employees” within the meaning of Title VII.

Accordingly, the Court finds that defendant was not an “employer” within the meaning of 42 U.S.C. § 2000e(b) during the relevant years.

For the foregoing reasons,

IT IS HEREBY ORDERED that defendant’s motion for summary judgment as to plaintiffs Title VII claim be and is GRANTED.

IT IS FURTHER ORDERED that plaintiffs claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. be and is DISMISSED with prejudice.

ON MOTION TO STRIKE

This matter is before the Court on motion of defendant, City' of Country Club Hills, to strike plaintiffs request for punitive damages. Plaintiff, Lawrence Perry, has filed a memorandum in opposition thereto.

Plaintiff requests punitive damages against defendant, a municipal corporation, for alleged violation of plaintiffs civil rights under the Civil Rights Act, 42 U.S.C. § 1981. Plaintiff alleges that defendant unlawfully discriminated against him when defendant refused to employ plaintiff to fill a position of police officer because he had previously made a charge of unlawful employment practice and because of his race.

Punitive damages under § 1981 may not be assessed against a municipality since to do so would impose a huge financial burden on the municipality. Heritage Homes of Attleboro, Inc. v. Seekonk Water District, 670 F.2d 1, 3 (1st Cir.1982) cert. denied, 457 U.S. 1120, 102 S.Ct. 2934, 73 L.Ed.2d 1333 (1982). The majority of the courts which have addressed this issue have reached the same conclusion. Boyd v. City of St. Louis, Mo., No. 83-1242 C, slip op. at 5 (E.D.Mo. Sept. 30, 1983); Holly v. City of Naperville, 571 F.Supp. 668 (D.C.Ill.1983); Bell v. City of Milwaukee, 536 F.Supp. 462 (D.C.Wis.1982).

In accordance with the foregoing,

IT IS HEREBY ORDERED that defendant’s motion to strike plaintiffs request for punitive damages be and is GRANTED.

IT IS FURTHER ORDERED that the plaintiff’s claims for punitive damages in Counts II and III against the defendant, City of Country Club Hills, under 42 U.S.C. § 1981 be and are STRICKEN.

      . Plaintiff’s original complaint contained only a Title VII claim. After defendant’s motion for summary judgment was filed, plaintiff sought and was granted leave to amend his complaint to additionally state a claim under 42 U.S.C. § 1981.

      . Although some courts suggest an "economic realities" test, see Spirides, 613 F.2d at 831-32, they simply rearticulate and apply common law agency principles. See Cobb, 673 F.2d at 339-40. Only the Seventh Circuit appears to have adopted a more liberal approach in defining “employee” under the Act. See Unger v. Consolidated Foods Corp., 657 F.2d 909, 915 n. 8 (7th Cir.1981).

      . Defendant’s alleged acts of discrimination occurred in 1980 and therefore 1979 and 1980 are the relevant years for determining whether defendant was an "employer” under § 2000e(b). See Dumas v. Town of Mount Vernon, 612 F.2d 974 n. 4 (5th Cir.1980); Hornick v. Borough of Duryea, 507 F.Supp. 1091, 1097-98 n. 5 (M.D.Pa.1980).

      . The Courts that have addressed this question have held that part-time workers are to be counted in ascertaining whether a "person” is an "employer” under Title VII. See, e.g., Hornick v. Borough of Duryea, 507 F.Supp. 1091, 1098 (M.D.Pa.1980); Pedreyra v. Cornell Prescription Pharmacists, 465 F.Supp. 936, 941 (D.Colo.1979); Pascatoi v. Washburn-McReavy Mortuary, 11 F.E.P. Cases 1325, 1327 (D.Minn.1975).

      . This Court found only one case where a court ruled that in a § 1981 case against a municipality punitive damages could be awarded. However, an examination of the legislative history of § 1981 indicates that Congress did not intend to extend the award to municipalities. See Heritage Homes, 670 F.2d at 3.


source: Caselaw Access Project

license: Public Domain

text:
    Lawrence PERRY, Plaintiff, v. CITY OF COUNTRY CLUB HILLS, Defendant.
    No. 82-0907C(2).
    United States District Court, E.D. Missouri, E.D.
    April 1, 1985.

      John Valentine, St. Louis, Mo., for plaintiff.
    Carp & Morris, Ralph Levy, III, Clayton, Mo., for defendant.
   MEMORANDUM

FILIPPINE, District Judge.

This matter is before the Court for a decision after trial to the Court.

This is an action brought under 42 U.S.C. § 1981 and the Court has jurisdiction under 28 U.S.C. § 1331. Venue for this action is proper in the United States District Court for the Eastern District of Missouri. After consideration of the pleadings, the testimony and exhibits introduced at trial, the parties’ briefs, and the applicable law, the Court enters the following memorandum which it adopts as its findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

Plaintiff is a black, male citizen of the United States and a resident of Missouri. Defendant City of Country Club Hills (CCH) is a municipal corporation organized and existing under the laws of the State of Missouri. At all times relevant to this lawsuit CCH maintained, operated, and employed a police department.

From September of 1978 until February of 1980 plaintiff was employed as a police officer in the City of Bel-Ridge in the State of Missouri. Following his discharge from employment in Bel-Ridge, plaintiff, on March 6, 1980, filed with the EEOC a charge of discrimination against Bel-Ridge. Plaintiff claims that CCH refused to hire him as a police officer because of his claim against Bel-Ridge.

To prove his retaliation claim plaintiff must show: “(1) that he engaged in activity protected by § 1981; (2) that an adverse employment action followed; and (3) that there was a causal connection between the two.” Goff v. Continental Oil Co., 678 F.2d 593, 599 (5th Cir.1982). See Benson v. Little Rock Hilton Inn, 742 F.2d 414, 419 (8th Cir.1984) (Heaney, J., dissenting). With regard to the first requirement, the Eighth Circuit has recently stated in dicta that to prove his claim of retaliation plaintiff must show that defendant “retaliated against him for opposing conduct which the [plaintiff] reasonably believed constituted unlawful discrimination.” Benson, 742 F.2d at 417. [Emphasis added.] On the basis of this “reasonableness” standard, the Court would be forced to dismiss plaintiffs claim herein. The EEOC charge against Bel-Ridge eventually culminated in a trial before this Court. In its opinion in that case the Court concluded that “plaintiffs institution of this action was frivolous, unreasonable and without foundation” and proceeded to award defendant its reasonable attorney’s fees. Perry v. Village of Bel-Ridge, No. 81-597C(3), slip op. at 9 (March 31, 1983). In light of its conclusion in the Bel-Ridge suit the Court would be collaterally es-topped from now ruling that CCH retaliated against plaintiff for conduct which he “reasonably believed” to be unlawful discrimination. However, because the reasonableness standard 'is contained in dicta, because of the additional dicta to the effect that the courts must give “employees filing discrimination claims with the EEOC or the federal courts broad protection from retaliation,” Benson, 742 F.2d at 416, and in light of Judge Heaney’s strong dissent, the Court will not dismiss plaintiff’s claim on this basis. Instead the Court will proceed with the analysis outlined above in Goff

First, it is clear that plaintiff herein was participating in activity protected by § 1981 when he filed his claim against Bel-Ridge. Further, adverse employment action, i.e., a refusal to hire plaintiff, clearly followed. However, the third requirement, the causal connection, requires a more detailed analysis of the facts. Before analyzing the facts, the Court is reminded that the basic allocation of burdens and order of presentation of proof in a § 1981 case is the same as that set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for Title VII cases. Kenyatta v. Bookey Packing Co., 649 F.2d 552, 554 (8th Cir.1981). Plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. at 554 n. 5. If the plaintiff succeeds in proving the prima facie case by a preponderance of the evidence, the burden shifts to defendant to articulate some legitimate non-discriminatory reason for plaintiff’s rejection. Id. Finally, if defendant meets his burden, the plaintiff has the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by defendant was a pretext for discrimination. Id. However, the ultimate burden of persuading the trier of fact, of course, remains at all times with the plaintiff. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

Plaintiff claims that CCH retaliated against him for filing a claim against Bel-Ridge by refusing to hire him as a police officer. From September of 1978 until February of 1980 plaintiff worked as a police officer in Bel-Ridge. He was discharged from this position and as a result filed an EEOC charge against Bel-Ridge for alleged racial discrimination. Plaintiff testified that he first learned that CCH had an opening for a police officer in March of 1980. At that time he spoke on the telephone with David Westbrook, then Captain and Assistant Police Chief for CCH, who told him that there were two openings and that they were looking for officers with prior experience. Plaintiff then went down to the police department and spoke with Westbrook. Plaintiff testified that he told Westbrook about the pending charge against Bel-Ridge and that Westbrook told him that he would nevertheless recommend him for the job and that his recommendation had never been turned down. West-brook, however, testified that at this first meeting with plaintiff he informed plaintiff that CCH had a policy of hiring part-time employees and that if Robert Austin, a part-time police officer with the City, wanted the job, it was his. He testified, too, that he told plaintiff that if Austin did not want the job, he would choose a number of applications, do background checks, and send them to the Board of Police Commissioners for consideration. Plaintiff further testified that approximately one week after filing his application Westbrook invited him down to meet the Chief of Police, James T. McDermott. Plaintiff stated that either Westbrook or McDermott, he does not remember which, discussed the Bel-Ridge claim with him and left him with the impression that if he did not drop the charge he would not be hired by CCH. Sometime later plaintiff was told by an acquaintance, Perry Myers, that the position had been filled.

Further support for plaintiffs claim of retaliation comes from the actions and deposition testimony of Perry L. Myers. Myers knew plaintiff through his girlfriend, who worked the same shift at Bel-Ridge as did plaintiff. Myers testified that he spoke to both Westbrook and McDer-mott about plaintiffs employment application. McDermott, Myers says, informed him that the City simply could not afford to defend labor disputes or lawsuits and that, therefore, plaintiff was not hired. Depo. of Myers, 11/5/82, p. 87, lines 19-20. West-brook, he says, told him that he did not recommend plaintiff because the City did not need a “nigger working here who goes running to the EEOC.” Myers then wrote a letter, dated June 29, 1980, to the EEOC advising it of Westbrook’s statement. See plaintiffs exhibit 1. Myers testified that he wrote the letter to the EEOC

because I thought that the Captain was wrong and I felt that the man should have been given an opportunity to at least compete or at least be, you know, go before the Board of Police Commissioners. All right if they didn’t want to hire him for a reason, all right, but the Police Commissioners do it. I thought that the way he was doing things and running things was wrong....

Depo. of Myers at 26. There is some evidence, however, that Myers had reason to try to discredit Westbrook. Myers himself testified that in February of 1980 he started having problems with Westbrook. Myers testified that he believed the reason was that he had started an investigation of Norman Westbrook, David Westbrook’s brother, and found out “things I probably shouldn’t have found out,” including that David Westbrook was trying to set up his brother. Depo. of Myers at 44. West-brook testified at trial that he and Myers never got along and that Myers failed to follow rules and orders and always thought his way to do things was best. Evans also testified to the “bad feelings” between Westbrook and Myers. He stated that Myers had told him he should fire West-brook who was running the department and was a poor supervisor.

Westbrook’s testimony with regard to the part-time preference policy was corroborated by the testimony of James T. McDermott; the testimony of Robert E. Evans, the Mayor of CCH; the deposition of Joseph L. Kwiatowski, a member of the Board of Police Commissioners in CCH; and the testimony of Edward Havarten a member of the Board of Police Commissioners. The primary reason for the policy was that the officers who had worked part time for CCH were familiar with the CCH police department, and the CCH community and its streets. Further, when a part-time officer took a full-time job there was no need to go before the Board of Police Commissioners, as he or she was already hired, sworn in, and an officer.

Robert Austin, who was hired into the position for which plaintiff applied, had worked part time for CCH beginning in 1977. The testimony is unclear as to when and why Austin was taken off the part-time schedule; but it is clear that he had not been scheduled some two to three months prior to March of 1980. Westbrook testified that this is not unusual for a part-time officer. When it became evident that CCH had an opening for a full-time police officer, Westbrook testified that he contacted Austin around the first of March and offered him the position. Westbrook accepted the job in mid-April and began working full time for CCH in May. Westbrook testified that because Austin was already a part-time officer for CCH he did hot have to go through the normal procedures for one newly hired. The testimony that one going from part time to full time did not have to follow normal hiring procedures was corroborated by the testimony of both McDermott and Evans. The Court notes that a number of other police officers, including officers Crawford and McLaughlin, had become full-time officers after having worked part time first.

The Court also notes the testimony of Westbrook and McDermott that CCH has hired a number of police officers who had claims pending against former employers. Westbrook testified that six or seven such officers had been hired, while McDermott identified four.

After reviewing all of the evidence the Court concludes that plaintiff has failed to show the causal connection between his suit against Bel-Ridge and the decision of CCH not to hire him. Thus plaintiff has failed to meet his initial burden of establishing a prima facie case of discrimination. The credible evidence establishes that the reason plaintiff was not hired is clear: the part-time hiring preference of CCH brought Austin to the department’s attention and once he accepted the position CCH had no reason to take further action on plaintiffs application.

Finally, defendant’s claim for attorney’s fees will be denied because the Court does not find that plaintiff's lawsuit was “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).

JUDGMENT

In accordance with the memorandum filed this day and incorporated herein,

IT IS HEREBY ORDERED, AD-' JUDGED, and DECREED that defendant shall have judgment against plaintiff on plaintiff’s complaint.

IT IS FURTHER ORDERED that plaintiff’s complaint be and is DISMISSED with prejudice.

IT IS FURTHER ORDERED that defendant’s request for attorney’s fees be and is DENIED.

IT IS FURTHER ORDERED that costs be taxed against plaintiff.

      . Plaintiff’s second amended complaint consists of three counts. Count I, which alleges a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was dismissed by this Court on a summary judgment motion on September 30, 1983. Count II, which was voluntarily dismissed by plaintiff at trial, alleges a violation of 42 U.S.C. § 1981 by virtue of Country Club Hills’ alleged discrimination on the basis of race. Count III, which still remains, alleges retaliatory discrimination in violation of 42 U.S.C. § 1981.

      . The precise holding in Benson, 742 F.2d at 418, is that the district court’s finding that defendant possessed no improper motive in terminating plaintiff was supported by the evidence and was not clearly erroneous.


author: RAFEEDIE, District Judge.

text:
    Ms. Tina Lewis THOMPSON, Joseph Chryar, Jr., D.B.A. Soprano Music Company and Mr. James David Nechelson, Plaintiffs, v. Theodora ZAVIN, John J. Timmel, Marvin L. Berenson, Neville Miller, Walter J. Damn, John Elmer Incorporated as Broadcast Music, Inc., Defendants.
    No. CV 82-5895-ER (TX).
    United States District Court, C.D. California.
    June 21, 1984.

      Tina Lewis Thompson, Joseph Chryar, Jr., James D. Nechelson, Lennox, Cal., in pro. per.
    Peter Smoot, Rintala, Smoot & Joenicke, Los Angeles, Cal., for defendants.
   ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL ARBITRATORS TO ISSUE SUBPOENAS OR, IN THE ALTERNATIVE, TO ISSUE SUBPOENAS

RAFEEDIE, District Judge.

This motion presents this Court a question of first impression: To what extent can and should a federal district court interfere with an arbitrator’s decisions after the Court has stayed an action pending arbitration pursuant to 9 U.S.C. § 3 (1982) of the Federal Arbitration Act but before a final award is made. After consideration of the submitted papers and further research, this Court dispensed with oral argument. See Local Rule of Civil Procedure 7.11. By this motion, plaintiff Joseph Chryar seeks to compel the arbitrator to issue subpoenas, or in the alternative, to have this Court issue subpoenas compelling defendants Zavin, Timmel and Berenson to attend arbitration hearings and to produce certain records for inspection. This motion, in effect, is an interlocutory appeal from a procedural ruling of the arbitrators. This Court denies it for the following reasons:

BACKGROUND

The underlying complaint for nonpayment of royalties, per se violation of antitrust laws, and restraint of trade was filed on May 15, 1982. On January 31, 1983, after a motion by defendant Broadcasting Music, this Court dismissed the complaint with leave to amend and stayed the case while the parties sought arbitration. There has not yet been an arbitration hearing. The arbitration is taking place in New York, and all parties agree New York law governs.

The arbitration procedures to date have focused on whether the parties will engage in pre-hearing discovery. The arbitrators ultimately decided that they will not. Plaintiff requested the arbitrators to issue subpoenas compelling individual defendants to attend the arbitration hearing so that he could examine them and also compelling defendants to bring certain documents. Defendants objected to the issuance of such subpoenas. The arbitrators resolved the issue by requiring that the individuals be available by telephone during the hearing so that they could be contacted if they were needed and by requiring the corporate defendant to bring all relevant documents to the hearing.

Plaintiff now moves this Court to compel the arbitrators to issue the requested subpoenas, or in the alternative, to issue its own subpoenas. The Court does not reach this issue on the merits for it is without authority to grant the requested ruling.

The Federal Arbitration Act, which requires federal district courts to stay actions covered by arbitration agreements, limits the Court’s authority over the case, once stayed, to the enforcement of subpoenas issued by the arbitrators. Even then, the petition to enforce the subpoena must be brought in the district in which such arbitrators .are sitting. See 9 U.S.C. § 7 (1982). Further, New York law, which the parties agree is controlling, explicitly forbids interlocutory appeals from arbitration:

ANALYSIS

1. Federal Law

This action was stayed pursuant to 9 U.S.C. § 3 of the Federal Arbitration Act. Nothing in this Act authorizes further action by a federal court once the court stays a matter, except that the court can enforce a subpoena issued by the arbitrators or confirm, vacate or modify the arbitrators’ award once it is made.

Plaintiff does not cite any case support for his proposition that this Court can issue subpoenas in a matter stayed for the purpose of arbitration. The cases he cites concern only the district court’s authority to enforce subpoenas issued by the arbitrators pursuant to 9 U.S.C. § 7 (1982). See, e.g., Western Employers Ins. Co. v. Merit Ins. Co., 492 F.Supp. 53, 54 (N.D.Ill.1979) (“Pursuant to U.S.C. §§ 3, 4, and 7, whenever a federal court properly orders or directs that arbitration be commenced, it out of necessity retains authority to enforce related arbitration procedures such as subpoenas duces tecum.”) (emphasis added). In no case did the district court issue a subpoena that the arbitrators refused to issue.

No case expressly states that this Court cannot or should not either issue the subpoena or order the arbitrators to do so. Cf. Recognition Equipment, Inc. v. NCR Corp., 532 F.Supp. 271, 273-74 (N.D.Tex.1981) (Arbitration Act’s provision for arbitrators conducting discovery impliedly excludes federal court). Support for that proposition, however, can be inferred from other cases dealing with whether discovery, as known in the federal system, exists for matters sent to arbitration, see, e.g., Recognition Equipment, 532 F.Supp. 271, or whether the federal court can decide the “procedural” questions of a matter that has gone to arbitration while the arbitrators decided the substantive issues, see John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). These courts have been animated by considerations of minimizing the time, expense, and formality of arbitration; preventing duplicative efforts by the federal courts and the arbitrators; and avoiding interference with the arbitrators until a final award has been made.

For example, the Supreme Court, in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), stated that

Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.... Reservation of ‘procedural’ issues for the courts would thus not only create the difficult task of separating related issues, but would also produce frequent duplication of effort.
In addition, the opportunities for deliberate delay and the possibility of well intentioned but no less serious delay ... are clear.

Id. at 557-58, 84 S.Ct. at 918-19. Cases dealing with discovery in arbitration matters echo these concerns. See Wilkes-Barre Publishing v. Newspaper Guild of Wilkes-Barre, 559 F.Supp. 875, 880-81 (M.D.Pa.1982); Recognition Equipment, 532 F.Supp. at 273-74, 275 (noting at 275 n. 4 that “[b]y retaining jurisdiction over this action and allowing prearbitration discovery the Court would be duty bound to administer the discovery process. In so doing, there is a likelihood that its administration of the discovery issues could presh-ape the issues before the arbitrator.”).

The concerns motivating the above cited decisions are equally relevant to the determination of this motion. If the Court were to become involved, such involvement would duplicate the effort of the arbitrators, since they have already considered who should be subpoenaed. It would also increase the time and expense involved, since the parties have been forced to participate in this extra motion and the door would be open for additional motions in the course of the arbitration proceedings. Finally, it would interfere with a matter entrusted by federal law to the arbitrators, without any congressional expression reserving to the courts the power to issue, rather than merely enforce, subpoenas.

2. New York Law

As explained above, this arbitration is controlled by New York law, pursuant to contract by the parties. New York law, as explicated by its Court of Appeals, parallels the federal law and is motivated by similar considerations. Mobil Oil Indonesia v. Asamera Oil (Indonesia), 43 N.Y.2d 276, 401 N.Y.S.2d 186, 372 N.E.2d 21 (1977), in a well reasoned decision, dealt directly with the permissibility of interlocutory appeals of an arbitration decision and refused such appeals:

In this proceeding, petitioner seeks to vacate “the interlocutory award of the arbitral tribunal” on the ground that the arbitrators exceeded their authority in determining the applicable procedural rules to be used during the course of the arbitration. We decline to do so and hold that the courts have no authority to review an interlocutory ruling made by the arbitrators....
The only authority for judicial review of arbitration awards is found in CPLR 7510 and 7511 ... and petitioners rely only on CPLR 7511 in this instance. But before the court may intervene or even entertain a suit seeking the court intervention, there must be an “award” within the meaning of the statute. The “awards” of arbitrators which are subject to judicial examination under the statute, and then only to a very limited extent, are the final determinations made at the conclusion of the arbitration proceedings ... The award here sought to be reviewed is “interlocutory”, involving only a very limited procedural question. ...
There can be no doubt that the State favors and encourages arbitration “as a means of conserving the time and resources of the courts and the contracting parties” (citations) and for the court to entertain review of intermediary arbitration decisions involving procedure or any other interlocutory matter, would disjoint and unduly delay the proceedings, thereby thwarting the very purpose of conservation. Not only the limitations of the statute, but policy considerations as well, dictate that the courts refrain from entertaining such interlocutory determinations made by arbitrators.

Id. at 279-81, 401 N.Y.S.2d at 187, 188, 372 N.E.2d at 22, 23.

CONCLUSION

For the reasons cited above, this Court denies plaintiff's motion.

      . Plaintiff states in his papers that he is also making this motion on behalf of the other two plaintiffs, who are also pro per. Under the local rules, an individual representing her or himself without an attorney must appear personally for such purpose and cannot delegate that representation to any other person. See Local Rule 2.9.2. Therefore, this motion will be considered as being brought only by plaintiff Chryar.

      . The Court gave plaintiffs leave to file an amended complaint within twenty days of the arbitrators’ reaching a decision.

      .Paragraph Fourteen of the agreement between the parties states:
      "In the event of any dispute of any kind, nature or description whatsoever arising between BMI and Publisher in connection with the terms and conditions of this agreement, or arising out of the performance hereof, or based upon an alleged breach hereof, the same shall be submitted to arbitration in New York City by a board consisting of three arbitrators under the then prevailing rules of the American Arbitration Association pursuant to the New York arbitration law.”

      . 9 U.S.C. § 7 reads:
      § 7. Witnesses before arbitrators: fees; compelling attendance. The arbitrators selected either as prescribed in this title or otherwise, or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document or paper which may be deemed material as evidence in the case.... Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before the court; if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.

      . Additionally, even if the federal court would have the power to issue a subpoena in a matter stayed for arbitration, this power, by analogy to 9 U.S.C. § 7 would be restricted to the district in which the arbitrators sit. Here, that would be the Southern District of New York.


author: BURCIAGA, District Judge.

text:
    Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant.
    Civ. No. 83-0296-JB.
    United States District Court, D. New Mexico.
    July 27, 1984.

      William L. Lutz, U.S. Atty., Ron F. Ross, Asst. U.S. Atty., Albuquerque, N.M., T. Timothy Ryan, Jr., Sol. of Labor, Heriberto De Leon, Counsel for Employment Standards, Max A. Wernick, Atty., U.S. Dept of Labor, Dallas, Tex., for plaintiff.
    Cherpelis & Nivala, P.A., George Cher-pelis, Laurie A. Vogel, Albuquerque, N.M., for defendant.
   MEMORANDUM OPINION AND ORDER

BURCIAGA, District Judge.

THIS MATTER comes before the Court on cross-motions for summary judgment. The Court, having read the memoranda of the parties, and being otherwise fully advised in the premises, finds that the plaintiff’s motion for summary judgment should be granted in part and that defendant’s motion should be denied.

This action is brought by the Secretary of Labor to enjoin the defendant from violating provisions of the Fair Labor Standards Act [“F.L.S.A.”], 29 U.S.C. § 201 et seq., and to further enjoin the defendant from continuing to withhold overtime pay allegedly due to its employees. The parties have filed a stipulation of facts sufficient to decide most of the issues before the Court. In May, 1979, the defendant, through collective bargaining with the employees at its San Juan Unit, negotiated a union contract which included a provision whereby employees would work a shift of ten consecutive days at regular pay. The collective bargaining agreement provided that each of six crews was scheduled to work the ten-day shift on a rotating basis. Thus, under this provision, an employee would work a ten-day shift every sixth and seventh work week (six consecutive, eight-hour days in one work week and four consecutive eight-hour days in the next work week). The rest of the time an employee would work regular, 40-hour weeks. In August, 1981, as a result of an internal review and evaluation of its overtime policies, the defendant realized this provision, with its inclusion of a six-day work week, was violative of the overtime requirements of § 7 of the F.L.S.A., 29 U.S.C. § 207. Through collective bargaining, the defendant renegotiated the ten-day shift provision, implementing changes effective October 6, 1981, which the defendant and the union believed brought the provision into compliance with the F.L.S.A. provisions governing overtime. In February, 1982, the Wage and Hour Division of the Department of Labor began an investigation into the possibility that defendant owed back pay to its employees for .overtime worked under the ten-day provision of the 1979 contract. In November, 1982, defendant paid its employees for the previously unpaid overtime for the period from November 5, 1980, to November 5, 1982. Plaintiff filed suit on March 1, 1983. Now at issue is whether defendant is liable for back pay prior to November 5, 1980.

Resolution of this issue requires an analysis of the applicable statute of limitations, 29 U.S.C. § 255(a). Pursuant to 29 U.S.C. § 255(a), an action to enforce payment of unpaid overtime compensation may be brought within two years of the accrual of the claim, except that an action arising out of a willful violation may be commenced within three years after the claim accrued. If the two-year statute of limitations applies, the Secretary may not pursue this action for unpaid overtime compensation earned prior to March 1, 1981. If the three-year statute applies, however,, the Secretary may seek employee compensation for all overtime worked subsequent to March 1, 1980.

The Court finds that the three year statute of limitations is applicable. The term “willful” is a term of art as used in the F.L.S.A. context. The Tenth Circuit has rejected the view that a “willful violation” requires an intentional disregard or deliberate indifference to the requirements of the F.L.S.A. A violation is willful if the employer “knew or should have known of an appreciable possibility that the employees were covered by the [F.L.S.A.].” Donovan v. M & M Wrecker Service, Inc., 733 F.2d 83, 85 (10th Cir.1984); see also Donovan v. McKissick Products Co., 719 F.2d 350, 354 (10th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2657, 81 L.Ed.2d 363 (1984); E.E.O.C. v. Central Kansas Medical Center, 705 F.2d 1270, 1274 (10th Cir.1983). By affidavit, defendant states that at the time the collective bargaining agreement was reached in May, 1979, both the defendant and the union believed the provision complied with the F.L.S.A. Affidavit of Ron Mershon at ¶ 3; affidavit of Michael Patchell at 113. This is sufficient to show that the defendant knew that its employees were covered by the F.L.S.A. The defendant, therefore, willfully violated the F.L. S.A., although there is no evidence that the violation was intentional or deliberate. The three-year statute of limitations provision applies.

As a second argument, defendant contends that it cannot be held liable because it has complied with the administrative requirements of the F.L.S.A. in making payments for the period from November 5, 1980, to November 5, 1982, and that the Secretary is precluded from seeking further recovery of back overtime pay by the policies of the Department of Labor. This argument is premised on provisions of the “Field Operations Handbook” of the Wage and Hour Division of the Department of Labor. These provisions, however, are merely guidelines and do not carry the force of law. See Brennan v. Ace Hardware Corp., 495 F.2d 368, 376 (8th Cir.1974); Marshall v. Krystal Co., 467 F.Supp. 9, 82 C.C.H.Lab. Cases ¶ 33,603 (E.D.Tenn., 1977); Hawkins v. Agricultural Stabilization & Conservation Committee, 149 F.Supp. 681 (S.D.Tex.1957), aff'd, 252 F.2d 570 (5th Cir.1958). The language of the guidelines themselves establish that they are norms which govern the typical case, but which allow for variation and exception.

Further, there is no indication that the Secretary has failed to comply with these guidelines. By affidavit, plaintiff has established that the Department of Labor intended to seek back payment for the two-year period preceding February 19, 1982, the time the investigation was begun. Ward affidavit at 112; Rice affidavit at ¶ 3; Bird affidavit at II 8. Unilaterally, the defendant determined to make back payment for the two-year period preceding November 5, 1982. Thus, under the defendant’s calculation, the illegal contract was in force for only 11 months of the covered period, whereas the plaintiff sought back pay for a period which included 19 months during which the illegal contract was in force. Although there appears to have been a communications problem between the plaintiff and the defendant with regard to the beginning and ending dates of the two-year period, the plaintiff did not stray from the guidelines which provide that, at the administrative level, the Department of Labor will generally pursue back pay for only a two-year period. The Handbook provides that back pay usually will be requested for the period extending two years from the date payment was first requested or for the period covered by the investigation, whichever is shorter. Field Operations Handbook § 53c02(a). By stipulation, the parties agree that in February, 1982, plaintiff brought to defendant’s attention the fact that employees might be entitled to back pay. Stipulation of Facts at II15. Plaintiff’s position that back pay was due for a two-year period commencing in February, 1980, is consistent with its Handbook.

Now that the matter has proceeded to litigation, there is no bar to the Secretary pursuing back payment for the full three-year period authorized by 29 U.S.C. § 255(a). Contrary to the contentions of the defendant, there is no statutory requirement in the F.L.S.A. that the Secretary seek voluntary compliance before proceeding with suit. This distinguishes the F.L.S.A. from other statutes such as the Age Discrimination in Employment Act [“A.D.E.A.”]. Defendant relies on Brennan v. Ace Hardware Corp., supra, for the proposition that it cannot be found liable for a three-year period in the absence of a pre-litigation directive from the Secretary to pay three years back pay. The Court found in Ace Hardware that the Secretary’s suit against the employer was precluded because the Secretary had not made clear to the employer what was required. Ace Hardware is inapposite to the case at bar, however, because it arises in the context of the A.D.E.A. which statutorily requires an attempt to achieve voluntary compliance. In the absence of such a requirement, the Secretary may extend the claim for back pay to three years without prior notice to the defendant. See Mitchell v. H.B. Zachry Co., 127 F.Supp. 377 (D.N.M.1955) (F.L.S.A. does not require notice to employer as a prerequisite to Secretary filing suit for injunctive relief).

As another argument, the defendant contends that the employees who accepted back pay for the November 5, 1980, to November 5, 1982, period waived claims to further back pay. This argument is based upon 29 U.S.C. § 216(c) which provides that an employee who accepts Secretary-supervised payment in full for overtime compensation due waives his right to sue the employer under 29 U.S.C. § 216(b) to collect both unpaid compensation and an equal amount of liquidated damages. The waiver provision of § 216(c) has no applicability to a suit brought by the Secretary under § 217. See generally Hodgson v. Wheaton Glass Co., 446 F.2d 527 (3d Cir.1971) (general discussion of difference between § 216 and § 217 remedies). The purpose of the § 216(c) waiver provision was to make employers more willing to voluntarily settle cases by insulating them from employees’ suits for liquidated damages after settlement with the Secretary. Id. at 530. In 1961, the F.L.S.A. was amended to preclude employees’ suits whenever the Secretary brought suit under § 217. Pub.L. No. 87-30, § 12, 75 Stat. 74. Under the 1961 amendments, the preclusion of employee suits once the Secretary brings a § 217 suit encourages voluntary settlement by the employer. The Congressional purpose furthered by the § 216(c) waiver provision, therefore, has no relevance to a § 217 suit by the Secretary. See Hodgson v. Wheaton Glass Co., supra (§ 216(c) and § 217 are not in pari mate-ria). Of course, the outstanding amount due is reduced by an amount equal to the payment to the employee.

Further, even if the limitations of § 216(c) were applicable, there is no averment in the case at bar that the payment of compensation for the November 5, 1980, to November 5,1982, period was Secretary-supervised. For § 216(c) waiver to occur, supervision of payment by the Secretary is required.

The final contention of the defendant, that no case or controversy is present, is also without merit. The Secretary seeks to enjoin the defendant from continuing to withhold back wages for unpaid overtime. The defendant concedes that it has not made overtime payments for the period from March 1, 1980, to November 5, 1980. This issue is sufficient to create a live controversy which meets the requirements of Article III of the Constitution.

Because the granting of injunctive relief requires a weighing of the equities, and because the record is not fully developed at this time, the Court declines to grant, in full, the plaintiff’s cross-motion for summary judgment. Nevertheless, it is appropriate to grant plaintiffs motion insofar as it seeks a determination that the three year statute of limitations is applicable.

Wherefore,

IT IS ORDERED, ADJUDGED AND DECREED that defendant’s motion for summary judgment is hereby denied.

IT IS FURTHER ORDERED that plaintiff’s motion is granted insofar as it seeks a determination that the three-year statute of limitations is applicable, and that in all other respects, plaintiff’s motion is denied.

      . It should be noted that the Secretary has consistently maintained that the back pay calculation should extend from a period beginning around March 1, 1980. At the administrative level, this date represented the commencement of a two-year period prior to the beginning of the investigation. At the litigation stage, this date represents the period encompassed by the three-year statute of limitations. Because there is no allegation that there were F.L.S.A. violations after October 6, 1981, the monetary liability of the defendant is unchanged between the administrative request for two years’ back pay and the litigation request for three years’ back pay-


author: RALPH B. GUY, Jr., District Judge.

text:
    Ollie McADOO, Plaintiff, v. UNITED STATES of America, Defendant.
    No. 83-CV1866-DT.
    United States District Court, E.D. Michigan, S.D.
    Aug. 24, 1984.

      Ronald Rader, Detroit, Mich., for plaintiff.
    Carolyn Bell Harbin, Asst. U.S. Atty., Detroit, Mich., for defendant.
   OPINION

RALPH B. GUY, Jr., District Judge.

This is an action brought pursuant to the Drivers’ Act provisions of the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and 28 U.S.C. § 2679(b).

This litigation arises from an auto accident which occurred on May 16, 1981. The plaintiff, Ollie McAddo, was injured when his vehicle struck a government-owned vehicle that had turned in front of him in the process of making a left turn. Subsequent to the accident, plaintiff filed an administrative claim, pursuant to the provisions of the Federal Tort Claims Act, which administrative claim was denied, and filed this action in a timely manner on May 13, 1983. Although the administrative claim was denied, the Government is not contesting liability. Additionally, the Government has abandoned any claim of contributory negligence on the part of the plaintiff and, further, has dropped the counterclaim which it filed with its answer. Liability having been admitted, the issue before the court was the question of damages.

Both parties agree that this auto accident is covered by the provisions of the Michigan No-Fault Act, M.C.L.A. § 500.3101, et seq. The Michigan No-Fault Act, as is typical of many state no-fault acts, provides for the elimination of tort liability in auto accident cases unless a certain threshold of seriousness of injury is reached. M.C.L.A. § 500.3135 provides:

(1) A person remains subject to tort liability for non-economic 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.

(Emphasis added.) The Michigan Act does allow, however, for recovery of damages for “work loss ... in excess of the daily, monthly, and three-year limitations_” M.C.L.A. § 500.3135(2)(c).

Thus, the damage issue before this court involves the following considerations. First, the court must determine whether the plaintiff’s injuries reach one of the thresholds set forth in the Michigan Act. In plaintiff’s complaint, the only claim made is that the injuries sustained resulted in a “serious impairment of a body function.” Accordingly, this is the only threshold consideration that the court need consider. If the court determines that there has been a serious impairment of a body function, then the plaintiff may recover traditional personal injury tort damages, which would include work loss beyond the three-year statutory period. If, however, the court determines that the plaintiff has not met the no-fault threshold, then it still must consider any work loss proved in excess of the daily, monthly, or three-year limitations period. Since the Government has admitted liability, if the plaintiff had substantiated any work loss damages in excess of that reimbursed by his carrier under the no-fault law, then he would be entitled to such damages.

The Issue of “Serious Impairment of Body Function”

Of the three conditions precedent to the recovery of non-economic damages set forth in the Michigan No-Fault Act, the one that has presented the most difficulty of resolution is serious impairment of a body function. Obviously, death is absolutely ascertainable. Although reasonable minds can differ as to what constitutes a permanent, serious disfigurement, it has, nonetheless, not presented major decisional difficulties. Relative to the question of serious impairment of a body function, there are a great number of cases decided under the No-Fault Act by both the Michigan Court of Appeals and the Michigan Supreme Court, but the one that is the starting point for this inquiry is Cassidy v. McGovern, 415 Mich. 483, 330 N.W.2d 22 (1982). The case is significant because it provides the definitive answer under Michigan law to two important questions: (1) to what extent is the determination of serious impairment of body function a matter of law, and (2) what does the phrase “serious impairment of body function” mean? Since actions under the Federal Tort Claims Act are non-jury trials, the answer to the first question is of minimal significance to these proceedings.

There is no doubt that the phrase “serious impairment of body function” presents some definitional difficulties. In this regard, the Michigan Supreme Court in Cas-sidy stated: “Although the requirement of serious impairment of body function lacks specificity, uniformity in its application is to some extent attainable through statutory construction by the appellate courts.” 415 Mich. at 502, 330 N.W.2d 22. As an aid to statutory construction, the Michigan Supreme Court first considered the legislative goals behind the No-Fault Act. Quoting from Shavers v. Attorney General, 402 Mich. 554, 578-579, 267 N.W.2d 72 (1978), the court stated: “The goal of the no-fault insurance system was to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses. ... Under this system, victims of motor vehicle accidents would receive insurance benefits for their injuries as a substitute for their common-law remedy in tort.” Cassidy, supra, 415 Mich. at 498, 330 N.W.2d 22.

The court then went on to explain that no-fault legislation of this nature involved a trade-off. Quoting from 7 Am.Jur.2d, Automobile Insurance, § 340 at 1068, the court illustrated this trade-off:

“It has been said of one such plan that the practical effect of the adoption of personal injury protection insurance is to afford the citizen the security of prompt and certain recovery to a fixed amount of the most salient elements of his out-of-pocket expenses * * *. In return for this he surrenders the possibly minimal damages for pain and suffering recoverable in cases not marked by serious economic loss or objective indicia of grave injury, and also surrenders the outside chance that through a generous settlement or a liberal award by a judge or jury in such a case he may be able to reap a monetary windfall out of his misfortune.” (Footnotes omitted.)

Cassidy, supra, 415 Mich. at 500, 330 N.W.2d 22.

Although the Cassidy court indicated that the precise perimeters of “serious impairment of body function” would undoubtedly be developed on a case-by-case basis, it nonetheless provided certain very significant benchmarks. Perhaps the most significant was the court’s determination that this particular threshold must be considered in conjunction with the other threshold requirements for a tort action for non-economic loss, namely, death and permanent serious disfigurement. In addressing this subject, the court stated that “[t]he Legislature clearly did not intend to erect two significant obstacles to a tort action for noneconomic loss and one quite insignificant obstacle.” Id. at 503, 330 N.W.2d 22.

Thus, it is clear that the type of impairment of body function which the Michigan Supreme Court envisioned as meeting the threshold requirement is one which will be on a par with such serious consequences as death and permanent serious disfigurement. This might be termed the qualitative norm established by the Cassidy decision. The court then provides additional assistance in establishing a quantitative norm:

The language “impairment of body function” is ambiguous regarding whether the impairment must be of any body function or of the entire body function. On the one hand, if any body function were to be considered the intended meaning, arguably a serious impairment of the use of the little finger would meet the threshold requirement. On the other hand, if an impairment had to be of the entire body function, then arguably only life-threatening injuries would satisfy the requirement. We believe that neither of .these options accurately reflect the legislative intent and that impairment of body function is better understood as referring to important body functions.

Id. at 504, 330 N.W.2d 22.

Since the most significant non-economic loss in traditional tort- recovery cases is usally for pain and suffering, the Cassidy court also addressed this issue specifically:

Another significant aspect of the phrase “serious impairment of body function” is that it demonstrates the legislative intent to predicate recover for noneconomic loss on objectively manifested injuries. Recovery for pain and suffering is not predicated on serious pain and suffering, but on injuries that affect the functioning of the body.

Id. at 505, 330 N.W.2d 22.

A distillation of the teaching of Cassidy then would indicate that, in order for there to be a “serious impairment of body function,” as that term is used in the Michigan No-Fault Act, there must be an injury that results in a serious impairment of an important body function, said impairment being evaluated against the backdrop of the other two thresholds — death and permanent serious disfigurement.

The cases that have been decided subsequent to Cassidy are of some assistance in applying the guidelines of Cassidy to specific facts. However, where they provide the least help is in cases of soft tissue injury, such as is involved here. One of the primary problems is that the principal manifestion of a soft tissue injury is pain and suffering. But, since Cassidy teaches that pain and suffering in and of itself does not amount to a serious impairment of a body function, the fact of pain and suffering is at best the beginning of an inquiry rather than its end.

Do Plaintiffs Injuries Constitute a Serious Impairment of a Body Function?

Turning now to the specific facts of the case at bar, the court must first address an additional significant complicating factor involved in this litigation.

On May 16, 1981, the plaintiff was involved in the auto accident that is the subject matter of this litigation. However, as living proof that bad luck comes in threes, the plaintiff was also involved in a similar auto accident on December 31, 1980, and a third similar accident on September 29, 1981. Thus, within a period of nine months, the plaintiff was involved in three automobile accidents, none of which involved any broken bones or major injuries and all of which allegedly involved soft tissue injuries. As a result of these three accidents, the plaintiff is or has been involved in four separate lawsuits. One was against the party involved in the December 31, 1980 accident. The second involved a suit against plaintiffs own carrier for first party benefits growing out of the first accident, necessitated by the insurance company terminating benefits, at least in part because of the multiplicity of accidents involved and the inability to differentiate damages, one from the other. The third lawsuit is the instant case, and the fourth is a pending action against the party allegedly responsible for the September 29,1981 collision. The litigation involving the first accident has been settled for $5,000. Likewise, the claim for first-party benefits against the insurance carrier has been resolved. In fairness to the plaintiff in this action, it should be noted at this point that it would appear that in each of the three accidents he was not at fault. Certainly that is true in the case at bar where the Government has admitted liability. Nonetheless, the three collision lawsuits, all against different individuals and all arising out of different circumstances, have placed the plaintiff in the awkward position of having to put his best legal foot forward in each case, resulting in each injury being the most serious one when it is the injury under discussion. It is also significant to note that plaintiff has claimed that each of the three injuries resulted in a serious impairment of body function. The decision-making process is further encumbered by the fact that plaintiff has chosen to rely on the deposition testimony of a chiropractor for his damage proofs, and the defendant did not even have the plaintiff independently examined, choosing instead to rely on an examination made by a doctor in one of the plaintiffs other cases.

The court will start by examining the medical testimony offered by the plaintiff which purports to support his claim of serious impairment of body function. David Eisman, D.C., a chiropractor, testified on behalf of the plaintiff by way of a deposition taken on July 12, 1984, some four days before the trial started. Dr. Eisman was the person who treated the plaintiff for his injuries after all three of the auto accidents. Although Dr. Eisman maintained a separate file on the plaintiff for each of his three injuries, this was done for the purpose of keeping straight the forms he had to file with the insurance company for each of the three separate accidents. From a medical standpoint, Dr. Eisman had no reason to differentiate in terms of his treatment or diagnoses among the three accidents. Furthermore, Dr. Eisman heads up the Eisman Clinic and was not necessarily the treating physician each time the plaintiff visited the Clinic. Although Dr. Eis-man considered the plaintiff his patient, any chiropractor working at the clinic might treat the plaintiff on any given visit. Although the initial diagnosis is couched in the jargon of the profession, when translated, the plaintiff was essentially diagnosed as having soft tissue injury in the cervical and lumbar regions, with evidence of muscle spasms. Insofar as treatment was concerned, the doctor stated: “Conservative treatment was recommended in his case to the affected areas in the form of hot packs, intermittent traction and manipulation and exercises.” (Eisman Dep. at 20.) Insofar as the course of treatment was concerned, the doctor stated: “Yes, but again he wasn’t seen that often. See, in the beginning of his course of treatment he was in such pain we treated him daily then we cut it down to once a week, once every two weeks and that’s what happened after the first accident.” Id.

As can be seen from the above statement, not only were the injuries similar in the first and second accidents, but the course of treatment was, for all practical purposes, identical. Similarly, after the third accident, the complaints were again identical:

Q. And what were his complaints [after the third accident]?
A. Pains in the neck, back, ribs, left upper and lower extremity, numbness in his hands.

(Eisman Dep. at 26.)

The last examination made by Dr. Eisman was one day before the deposition was taken, on July 11, 1984. The diagnoses he made of plaintiff’s condition as of that date were: “Post traumatic sprain to the cervical, dorsal and lumbar spine with fibromyositis, radiculopathy in the right upper extremity and in the left lower extremity.” Id. at 29. A fair translation of the above is that plaintiff had a sprain in the cervical, dorsal, and lumbar regions of his back, with inflammation of muscular tissue (fibromyositis), and pain along the course of nerve roots (radiculopathy). If the inquiry ended there, this court would have little difficulty in concluding that this does not amount to a serious impairment of a body function, since it is exactly the type of soft tissue injury, the chief consequence of which is pain, that Cassidy teaches is not to be construed as a serious impairment of a body function.

In order to substantiate the claim of a serious impairment of a body function, however, the plaintiff shifts grounds at this point and addresses not the injury itself but the alleged consequences thereof; that he has not been able to return to work since his first accident. There are several problems with the attempt to equate in absolute terms disability from past work with serious impairment of a body function. The first difficulty is the obvious one, and that is that the legislature did not choose to use this as one of the thresholds for continued tort liability. It would have been very easy for the legislature to enumerate a fourth threshold — disability from work. The fact that they did not do so also is easily understandable when the Act is considered in its entirety. If you are disabled from your work, as the result of the negligence of another, under the No-Fault Act you will be paid by your own insurance carrier for the first three years of your work loss. After that period of time, you may collect from the negligent party any difference between what your carrier paid you and what you would have earned, plus any future work loss. In the case at bar, the plaintiff is entitled to be compensated for any future work loss caused by this defendant (and liability is admitted) without regard to whether he has met the threshold of serious impairment of a body function.

In other words, what the legislature has said is that insofar as your economic well being is concerned — your work loss — this will continue to be evaluated under traditional tort principles. After three years, a defendant is responsible for work loss indefinitely or at least for such period of time as a causal realtionship can be established. On the other hand, the legislature has enacted strict limitations on pain and suffering damages, as this is always the nebulous area in all personal injury litigation. The legislature has taken away from those injured in auto accidents their right to participate in the judicial pain and suffering lottery, and substituted therefor a scheme which guarantees them quick payments without regard to fault for those injuries and economic consequences which are the most commonplace in auto accidents. Thus, the attempt to measure the seriousness of the impairment of a body function by its consequences in the work place is not only a distortion of the legislative scheme but an unnecessary one, since the legislature has preserved traditional tort remedies insofar as work loss is concerned. The classic example would be the concert violinist who would lose the tip of his finger and no longer be able to play the violin. Although the immediate financial consequences to him from not being able to pursue his chosen profession might be extremely significant, there is no way in which the loss of the tip of a little finger reasonably could be equated to a serious impairment of a body function. Once again, although admittedly repetitious at this juncture, one need shed no tears for our hypothetical concert violinist, because if the loss of his little finger was occasioned by the negligent act of a collectible third party, he would have his cause of action for future work loss.

In summary, this court concludes that when one has suffered a back sprain, the only treatment administered being limited to manipulation and heat treatments by a chiropractor, this simply does not result in the type of serious impairment of a body function contemplated by the legislature of the State of Michigan.

The reference to chiropractic treatment is not intended by this court as pejorative, nor does the court wish to sally forth into the continuing debate between the medical profession and those members of related healing arts. There is an objective significance, however, to the involvement of chiropractic treatment. Chiropractors by law are very limited in what they can do and what they can administer, and something is said about an injury if a given individual is content to treat that injury solely within the confines of chiropractic medicine.

In the interest of a complete record, it should be noted that plaintiff did see two medical doctors in connection with this litigation. He saw Dr. Gunabalan, a self-proclaimed specialist in the field of thermography. The court refused to allow Dr. Gunabalan’s testimony into evidence because, applying the test of the Sixth Circuit in United States v. Brown, 557 F.2d 541 (6th Cir.1977), this court concluded that thermography, as a diagnostic tool for back injuries, has not received that degree of acceptance necessary within the scientific community to be admissible into evidence.

Plaintiff was also referred to Victor C. Gordon, a doctor of osteopathy. Unfortunately, however, neither the plaintiff nor the defendant took Dr. Gordon’s deposition or otherwise attempted to present his findings to the court, other than to include in a packet of Dr. Eisman’s records a report submitted by Dr. Gordon. (Def. Ex. 6). One of the problems with the exhibit is that it is a photocopy, and some of the significant findings of Dr. Gordon are illegible or have not been reproduced at the bottom of one of the pages. It does appear, however, that Dr. Gordon administered an electro-myograph examination, an accepted medical diagnostic technique, and found that there were no electromyographic abnormalities seen.

He did indicate “incipient carpal tunnel syndrome” but neither the plaintiff nor the defendant made any attempt to relate this to the question at issue before the court.

Before leaving the subject of medical testimony as it relates to the question of serious impairment of body function, it should be noted that the defendant also introduced the results of an examination of the plaintiff conducted by Dr. Boris W. Kreel, a medical doctor specializing in occupational medicine and rehabilitation of patients with disabilities. Dr. Kreel, examined the plaintiff on February 1, 1982, and concluded:

In spite of his subjective symptoms and without trying to minimize any of his complaints, there are no positive physical findings on today’s examination as far as the car accident is concerned. There is no clinical evidence to support any of his complaints. As just indicated, as far as today’s evaluation is concerned, he was completely within normal limits as far as the car accident is concerned; both in the general physical examination and in the neuromuscular part of the evaluation where most of the time was spent.
* * jjt * * *
X-rays do show some minimal degenerative changes, more so in the LS spine than in the rest of the back. They also showed some possible collapse of the 5th lumbar vertebra. This is the basis, in my opinion, for his complaints. These weren’t caused by the car accident, but they certainly could cause low back discomfort because of the mal-alignment that they would produce on the facet joints. It is my opinion, given the above facts, that he has had a full recovery with no residuals from the car accident....
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Because he is long since had a full recovery, he could return to full, unrestricted employment and activity immediately. There certainly is no indication for any specialized tests, specialist evaluations, hospitalizations, or medication. Nor is there any indication for any treatment. I think the fact that he has received chiropractic manipulations is both illogical and not scientific. Chiropractic manipulations are based upon what is referred to as the presence of subluxa-tions' of the small joints of the spine. A subluxation means a partially or incompletely dislocated joint. No such thing exists anywhere in this man’s back. If it had existed, then one manipulation should have been sufficient to replace this partially or incompletely dislocated joint. Anything beyond one or two manipulations is totally illogical.

(Kreel Dep. Ex. 1 at 10-11.)

Given the nature of the testimony in this case, the court would also indicate that, as an alternative basis for holding that there is no serious impairment of a body function, it credits the testimony of Dr. Kreel, the medical doctor and occupational medicine specialist, over that of Dr. Eisman, the chiropractor. Dr. Kreel’s testimony is totally supportive of a finding of no serious impairment of a body function.

Having thus resolved this question, the court must now turn its attention to the issue of what damages, if any, the plaintiff is entitled to as a result of work loss occasioned by the admitted negligence of the defendant.

To What Work Loss Damages, if any, is the Plaintiff Entitled?

This issue presents two questions for resolution by the court. The first involves causation. Even though the defendant has admitted fault, the court must still determine that such fault was a proximate cause of plaintiff’s injuries. If the court determines that fault of the defendant was a proximate cause of plaintiff’s injuries, then it must determine what damages, if any, are appropriate.

For the reasons hereinafter stated, the court concludes that the injuries sustained by the plaintiff in the May 16, 1981, auto accident were a substantial contributing proximate cause to the physical conditions which resulted in plaintiff’s inability to work.

It is settled law in Michigan that a defendant’s negligent conduct which results in an aggravation of a plaintiff’s previous injury or medical condition will result in liability for damages. Rypstra v. Western Union Telegraph Co., 374 Mich. 166, 132 N.W.2d 140 (1965). This principle of law is significant in light of the fact that this plaintiff sustained similar injuries in a previous auto accident some five months earlier. Also, the x-rays taken of the plaintiff reveal that he suffers from degenerative arthritis in the cervical area. This, of course, is a condition unrelated to any of the accidents.

The conclusion that the accident that is the subject matter of this litigation aggravated both the injuries plaintiff had sustained in the first accident and his arthritic condition is supported by the testimony of the plaintiff himself, as well as by his treating chiropractor, Dr. Eisman. The plaintiff testified that he had worked regularly all his life until the first accident which occurred on December 30, 1980. He further testified that he had recovered sufficiently from the first accident so that he was planning to return to work on the Monday that followed the date of his second accident. That he had a job to go back to and that he was expected back at work was corroborated by his former employer. In order to indicate why the court credits plaintiffs own testimony in this regard, it is helpful to detail briefly plaintiffs work history.

Plaintiff was born on June 24, 1920, and, at the time of the accident in issue here, he was 61 years of age. Plaintiff had spent 36 or 37 of these years in full-time employment. Thirty of those years were spent working at Detroit Steel Products in this area, which job ended in the late 1970’s, when the plant closed. Approximately contemporaneously with the closing of the plant, the plaintiff began working for Suburban Brick Company in Fraser, Michigan. Plaintiff worked for this company as an independent yard contractor, on and off, for a period of several years, apparently commencing in 1977. The owner of Suburban Brick Company, Robert Schroeder, testified at trial, and indicated that he considered the plaintiff dependable and hard working, and that he would have continued to employ him but for the disability occasioned by plaintiffs auto accidents. Thus, plaintiffs continuous record of employment and indications that all was going well on the job at which he was working lend support to his own testimony that, but for the auto accidents, he would still be working.

Also, Dr. Eisman testified that plaintiffs three auto accidents and their interreaction with his arthritic condition were the cause of his not being able to return to work. The fact that one cannot completely differentiate between what damage was done by which accident is not fatal to plaintiffs claim, since Michigan law dictates that where the court or jury is unable to separate damages caused by a defendant’s conduct from those which were preexisting, then the entire amount of plaintiffs damages must be assessed against the defendant. Belue v. Uniroyal, Inc., 114 Mich.App. 589, 319 N.W.2d 369 (1982).

Dr. Kreel, whose deposition testimony was offered by defendant, strongly disagrees with plaintiffs contentions as to the seriousness of his injuries, but does not negate the fact that whatever injuries plaintiff is suffering from were caused by one or more of the auto accidents in which he was involved within a nine-month period of time.

Having thus concluded that the auto accident of May 16, 1981, was a contributing proximate cause to plaintiffs injuries which resulted in his work loss, the court must next turn to what amount of damages is appropriate. This issue is complicated by the nature of plaintiffs injuries, the relatively sketchy nature of his proofs on money damages, and the inherent uncertainty that is always involved with the assessment of future damages.

There are two components to plaintiffs damage claim — past damages up to the date of judgment and damages into the future. The court will first examine that portion of the claim relating to damages from date of injury to date of judgment.

Through plaintiffs last employer, Suburban Brick Company, the plaintiff introduced records of earnings for the years 1977,1978,1979, and 1980. These earnings were as follows:

1977 - $ 2,032.10
1978 - $ 6,627.99
1979 - $17,318.13
1980 - $13,737.52

Although these records are helpful, there are a number of problems in utilizing them as a basis for damage computations. First is the fact that there is little specific information beyond 1980 bearing on this question. This lack of information is further complicated by the fact that the plaintiff did not have a regular job as an employee with Suburban Brick Company. He was an independent contractor and his work varied in proportion to its work. The owner of Suburban Brick Company testified that 1981 was about as good a year as 1980, but that 1982 was a bad year. He also testified that 1983 was a better year than 1982, but not as good as 1981. If one were to ascribe arbitrary values to this general testimony, it could be said that plaintiffs projected income for 1981 would equal that of 1980 — $13,737.52; that 1982 would have resembled more closely 1978, thus resulting in a projected income of approximately $7,000.00 per year; and that 1983 would have fallen somewhere in between — approximately $10,000.00.

Relative to income, however, the defendant brought out on cross-examination some significant information that plaintiff did not include in his damage proofs. The plaintiff was an independent contractor and,.as such, was responsible for all of his own expenses. Therefore, any wages earned must be off-set by any sums that plaintiff would have expended in fulfilling his job responsibilities. On this issue, the defendant introduced plaintiffs 1980 income tax return (DX 17), which indicates gross income in the amount of $13,737.52, but indicates as a deduction therefrom business expenses in the amount of $8,791.91, leaving an adjusted gross income of $4,945.61. Plaintiff made no effort to negate or further explain these deductions and made no effort to show that they were atypical. Thus, plaintiffs business expenses were running 64 percent of his business income.

Since, under Michigan no-fault law, the responsibility for reimbursing plaintiff for his work loss for the first three years after his accident rests with his insurance carrier, the court need only concern itself with work-loss damages occurring after May 16, 1984. It can reasonably be assumed that judgment will enter in this matter on or about August 16, 1984, so that, insofar as present damages are concerned, the court has only to compute damages for the period of time from May 16, 1984 until August 16, 1984, a three-month period. Since 1984 has been an improved year in the economy in general, it is reasonable to conclude that plaintiff would have earned in 1984, had he been working, approximately what he would have earned in 1980— $13,737.52. Reducing this amount to the three-month period covered between May 16, 1984 and August 16, 1984, the court reaches the figure of $3,434.37. Since, as previously determined, however, 64 percent of this figure would have been consumed by business expenses, it is only 36 percent of that figure that can be considered wage loss, or $1,236.37. For ease of future computation, this translates into a monthly rate of $412.12.

Turning now to future damages, the court believes it is safe to conclude that the plaintiff would have worked the balance of this year, and thus, from August 16, 1984 until December 31, 1984, a period of four and one-half months, at $412.12 per month, would have netted an additional $1,854.56.

The next, and admittedly the more difficult, question is how far in the future would the plaintiff have continued to work but for his auto accident injuries. The plaintiffs own testimony is not very helpful in this regard, as he indicated he would have planned to work fifteen or twenty more years. Neither plaintiff nor defendant attempted to offer any type of statistics such as are available from the Labor Department indicating average work life. Based upon the plaintiffs past work history and his general good health prior to the accident, albeit with degenerative arthritis, the court concludes the plaintiff would have worked until his 70th birthday. This figure also comports with the compulsory retirement age allowable under the Federal and State Age Discrimination Acts. Plaintiff would reach age 70 on June 24, 1990. It is thus necessary to compute future damages for the plaintiff for a period of six years. Again, the court believes that it is fair, under the circumstances, to use the 1980 income figure of $13,737.52. The court has hereinabove indicated that that figure, when adjusted for expenses, gives a net-monthly income of $412.12. When this figure is multiplied by the number of months (66) until plaintiff reaches his 70th birthday at the end of June in 1990, the result is $27,199.92. To this amount must be added the figures previously computed covering the period from May 16,1984 until the end of 1984, which total $3,090.93, giving a grand total of $30,290.85.

This net damage amount of $30,290.85 must be adjusted, however, for the law is clear in Michigan that all future damages must be reduced to present cash value. Currie v. Fiting, 375 Mich. 440, 453-454, 134 N.W.2d 611, 615-616 (1965). Thus, that portion of the damage figure which represents the period from August 17, 1984, to June 24, 1990, i.e., $29,054.48, must be further reduced to reflect present value. The historical rate used in Michigan for reduction to present value was five percent. Although this percentage is arguably low in light of today’s present economy, it continues to be approved by Michigan appellate courts. Tiffany v. Christman, 93 Mich.App. 267, 287 N.W.2d 199. Since the parties offered no testimony on any other rate that would be appropriate, this court will use the five percent rate. Without burdening this opinion further with the torturous arithmetic involved in reducing to present value, suffice it to say that the future damage award, reduced to present value, equals $24,912.38. Adding to this figure the present damages of $1,236.37, the court concludes that the total damage award is $26,148.75.

The plaintiff concedes that he has arrived at a settlement with the tortfeasor involved in the first accident, and that that settlement, in the amount of $5,000.00, is properly deducted from this award. Therefore, deducting the $5,000.00 gives an adjusted damage award to the plaintiff of $21,148.75. Plaintiff may have judgment in this amount. Plaintiff is to present a judgment, consistent with this Opinion, within fourteen (14) days from the date of this Opinion.

      . Although the Sixth Circuit Court of Appeals, in the recent case of United States v. Ferguson, 727 F.2d 555 (6th Cir.1984), had indicated that the United States Government is not controlled by the provisions of the Michigan No-Fault Act when it is a plaintiff, the parties here have not raised any question as to the coverage of the Act where the Government is a defendant.

      . In closing argument, plaintiff's counsel appeared also to be making a claim that there has been permanent serious disfigurement, as the result of plaintiff having some teeth knocked out in the accident and now having a partial plate. Since this claim is not made in the Complaint or the Final Pretrial Order, there is no necessity for the court to consider it. The court would note, however, that it would rule as a matter of law, had the issue been raised, that loss of teeth requiring a partial plate where there was no adverse cosmetic affect would not result in a serious permanent disfigurement, as that term is used in the Michigan statute.

      . The responsibility of effectuating the legislative will is primarily a matter of law for the court and not properly left to a determination by a jury. Therefore, we conclude that the meaning of “serious impairment of a bodily function” is a matter to be determined by statutory construction. We hold that where there is no factual dispute regarding the nature and extent of plaintiffs injuries, the question of serious impairment of body function shall be decided as a matter of law by the court. Likewise, if there is a factual dispute as to the nature and extent of a plaintiff's injuries but the dispute is not material to the determination whether plaintiff has suffered a serious impairment of body function, the court shall rule as a matter of law whether the threshold requirement of M.C.L. 500.3135; M.S.A. 24.13135 has been met.

        Cassidy, supra, 415 Mich. at 502, 330 N.W.2d 22 (citations omitted). Since no dispositive motions were, filed in this case, and since no motions were made by the defendant at the close of plaintiffs proof, the court’s decision in this matter represents the decision of the trier of fact rather than a ruling as a matter of law. The significance of this distinction is primarily in connection with the different standards of appellate review.

      . The court had the parties make a separate record on this issue. Since the question involved a preliminary determination as to the admissibility of evidence, under the Federal Rules of Evidence, the court was free to consider matters whether they were themselves admissible into evidence or not. The plaintiff . presented a series of articles primarily from legal publications touting the value to lawyers of thermography as a diagnostic technique. The Defendant presented a letter from the American Medical Association to the effect that thermog-raphy, as it relates to the diagnosis of back injuries is still considered an investigative technique. On the basis of this evidence the court concluded that the evidence did not meet the Brown test.

      . Using one year as a basis for determining a ratio between income and expenditures is obviously less than desirable, if one is attempting to make an accurate statistical analysis. However, it must be remembered that plaintiff only worked at his last employment for approximately four years, and further, to the degree the court does not have more information to work with, it is because the plaintiff gave the court no more information to work with. Also, to the degree that the expenses might seem high, it must be remembered that they include, in part, the payment for additional manpower which the plaintiff sometimes used to assist him.

      . Although plaintiff, under the law, could have presented a claim for any difference between what his insurance carrier reimbursed him during that three-year period and what he would have earned, he offered no proofs on this issue so the court must conclude that plaintiff makes no claim for any wage loss during the three-year period immediately following his accident.

      . The Life Expectancy Tables, which the court is able to judicially notice, present no problem in this regard, as they give the plaintiff a life expectancy beyond age 70.

      . The testimony at trial indicated that plaintiff is currently drawing social security benefits. However, such benefits would not be a deduction from this damage award, since plaintiff started drawing them at age 62 under the provisions of the Act that allow him to collect his normal social security at that age. He is not drawing social security disability benefits. Also, there were some vague testimonial references by the plaintiff to the effect that he may have some future medical expenses, and that he could continue to need help around the house. Although these items arguably could be included as a matter of law in any damage award, as a matter of fact no evidence was offered by plaintiff which would enable the court to possibly attach any dollar value, other than through the type of speculation which is impermissible.