may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Michael Kruse, et. al.,
American Family Insurance Company,
Filed March 18, 1996
Hennepin County District Court
File No. 95-297
William M. Hart, Gary W. Hoch, Elizabeth A. Foley, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Appellants)
William Denis Turkula, 170 BLN Office Park, 2001 Killebrew Drive, Minneapolis, MN 55425 (for Defendant)
Considered and decided by Short, Presiding Judge, Amundson, Judge, and Mulally, Judge.[*]
By special verdict, a jury found that Michael Kruse's negligence caused an automobile accident in which Farhad Safinia was injured. The jury awarded Safinia non-economic damages based on a finding that he had been disabled for 60 days or more. We reverse.
Safinia went to work the next day and did not miss any work as a result of the accident. He took aspirin for pain. Five days later, he went to his doctor complaining of neck, shoulder, and lower back pain. The doctor's diagnosis was upper back and low back strain, and she recommended Naprosyn and physical therapy. Between August and November 1992, Safinia saw a doctor several more times.
Safinia claimed that in the summer and fall of 1992, he was unable to participate in karate or to play soccer or racquetball. He testified that he could not perform his usual household chores because he could not stand for more than 10 to 15 minutes without substantial pain. He claimed that during the first six months of 1993, he suffered pain if he stood, walked, or sat behind the wheel of a car for more than a half-hour, and when he went to work, he could not sit for over an hour, but had to stretch or lie down periodically to relieve the pain.
Safinia had the burden of proving that his injuries resulted in disability for 60 days or more. See Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 670 (Minn. 1983). This issue was properly submitted to the jury as part of the special verdict. See id. We will set aside a jury's special verdict
only if [it is] perverse and palpably contrary to the evidence, or where the evidence is so clear as to leave no room for differences among reasonable persons.
Olson v. Havir Mfg. Co., 357 N.W.2d 136, 138 (Minn. App. 1984).
We conclude the jury erred by finding that Safinia was disabled for 60 days or more. The legislature has defined "disability" as
the inability to engage in substantially all of the injured person's usual and customary daily activities.
Minn. Stat. § 65B.51, subd. 3(c) (1994) (emphasis added). This court has construed the statute's definition of disability as requiring a significant loss of the ability to work. See Kissner v. Norton, 412 N.W.2d 354, 357 (Minn. App. 1987) (fact that employee missed approximately four days of work was insufficient evidence that she was disabled or unable to engage in substantially all of her usual and customary daily activities); see also Lindner v. Lund, 352 N.W.2d 68, 71 (Minn. App. 1984) (employee could not withstand summary judgment on 60-day disability threshold where employee's only evidence was that he missed some family activities and that his ability to work was restricted; he was not confined to bed or hospitalized, and he was confined to the house for only three days); see also Marose v. Hennameyer, 347 N.W.2d 509, 511 (Minn. App. 1984) (employee did not meet 60-day threshold where she was off work for a total of nine days and was seen at a clinic on six days). In this instance, Safinia missed no work as a result of the accident; therefore, we must conclude that he was able to engage in this usual and customary daily activity.
By notice of review, Safinia argues that, even if he was not disabled for 60 days or more, he is entitled to recover damages for noneconomic detriment because he incurred medical expenses exceeding $4,000, thereby satisfying another threshold for noneconomic damages. See Minn. Stat. § 65B.51, subd. 3(a) (1994). The jury found that Safinia's medical expenses were $3,487.48, exclusive of x-rays and MRI and CT scans, which the parties stipulated were an additional $2,154.50. Thus, only if the costs of those tests are added to Safinia's other medical expenses would his expenses exceed the $4,000 statutory threshold.
Medical expenses that may be considered when calculating the $4,000 threshold exclude expenses for diagnostic x-rays. Id., subd. 3(a)(4).
The reason for deducting diagnostic x-rays from the medical expense computation is, apparently, to remove any incentive to reach for the tort threshold by resort to easily inflated expenses. The same reason seems to apply to the exclusion for non-occupational or nonremedial rehabilitation expenses.
Michael K. Steenson, A Primer on Minnesota No-Fault Automobile Insurance, 7 Wm. Mitchell Law Rev. 313, 390 (1981). The same reason would be served by excluding MRI and CT scans. MRI and CT scans, like x-rays, are diagnostic tests. See Minn. Stat. § 65B.51, subd. 3(a)(4) (excluding costs of "diagnostic x-rays" from $4,000 threshold); Henke v. Dunham, 450 N.W.2d 595, 596 (Minn. App. 1990), review denied (Minn. March 22, 1990) (characterizing CT and MRI scans as diagnostic tests). "[T]he object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature." Minn. Stat. § 645.16 (1996). Because the purpose of the statute is to exclude diagnostic, rather than remedial expenses, we conclude the legislature intended that expenses for MRI and CT scans be considered in the same category as expenses for x-rays.
Because we reverse the verdict in favor of Safinia, he is no longer the prevailing party at trial and is not entitled to costs and disbursements or pre-verdict interest. As a result, we need not address Safinia's motion to strike the portions of Kruse's brief addressing Safinia's entitlement to pre-verdict interest.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[ ]1 "The tort thresholds represent a safety valve for the victim who is so severely injured that the no-fault insurance limits are so inadequate as to be unjust. Thresholds are established to reserve only the more serious personal injury cases for third party litigation." Coughlin v. LaBounty, 354 N.W.2d 48, 52 (Minn. App. 1984).