This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat 480A.08, subd. 3 (1996)

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-98-484

State Farm Mutual Automobile
Insurance Company,
Respondent,

vs.

Dawn Zitzloff,
Appellant.

Filed August 18, 1998
Affirmed in part and reversed in part
Amundson, Judge

Hennepin County District Court
File No. 97-20573

Bradley H. Ratgen, Meuser, Rondestvedt & Batchelor, PLC, 400 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for appellant)

R. Gregory Stephens, Katherine A. McBride, Thomas H. Crouch, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Holtan Judge.*

U N P U B L I S H E D   O P I N I O N

AMUNDS0N, Judge

The district court vacated and modified a no-fault arbitration award, concluding appellant was not entitled to receive income loss benefits because she had been unemployed for three years at the time of her automobile accident. The district court, however, affirmed the arbitrator's determination that appellant was entitled to her claimed medical expense benefits, even though there was evidence that some of those expenses were due to a prior automobile accident. We affirm the court's decision to award medical expense benefits but reverse the denial of income loss benefits.

FACTS

Appellant Dawn Zitzloff worked as a waitress and a cosmetologist in 1990 and 1991. During a pregnancy in 1991, Zitzloff began to experience back pain and leg pain, and subsequent examinations revealed that Zitzloff had several disc problems.

In January 1993, Zitzloff returned to work as a hair stylist, but the following month, she fell on ice and reported pain in her lower back, upper back, and neck. Zitzloff returned to work in July 1993 but quit a few weeks later, due to ongoing back and neck pain.

In January 1994, Zitzloff was involved in an automobile accident. In December 1994, she had back surgery, but she continued to experience neck and back pain. In July 1996, Zitzloff considered returning to work, but on July 2, 1996, she was involved in another automobile accident, resulting in further back injuries.

After Zitzloff's first automobile accident, in 1994, respondent State Farm Mutual Automobile Insurance Company paid her medical expenses and income loss benefits. After Zitzloff's July 1996 accident, State Farm paid 100% of her medical expenses until October 1996, when the payments were reduced to 30%, due to a neurologist's conclusion that 70% of Zitzloff's treatments were for pre-existing back problems.

In early 1997, State Farm stopped paying for any of Zitzloff's medical expenses, and Zitzloff submitted her claims to binding arbitration. The arbitrator granted Zitzloff all of her claimed benefits, but the district court vacated the award, concluding that Zitzloff was not entitled to receive any income loss benefits but was entitled to receive all of her claimed medical expense benefits.

D E C I S I O N

A no-fault arbitrator's findings of fact are final. Keim v. Farm Bureau Ins. Co., 482 N.W.2d 823, 825 (Minn. App. 1992), review denied (Minn. May 21, 1992). However, questions of law involving the construction of Minnesota's no-fault act must be resolved by the courts, in order to ensure consistent interpretation of the act. Johnson v. American Family Mut. Ins. Co., 426 N.W.2d 419, 421 (Minn. 1988).

The burden is on a party who challenges an arbitrator's award to make a clear showing that the arbitrator has exceeded his or her powers. Hilltop Constr., Inc. v. Lou Park Apartments, 324 N.W.2d 236, 239 (Minn. 1982). The court should exercise every reasonable presumption in favor of the award's validity. National Indemnity Co. v. Farm Bureau Mut. Ins. Co., 348 N.W.2d 748, 750 (Minn. 1984).

Income loss benefits compensate an insured for "inability to work proximately caused by the nonfatal injury." Minn. Stat. 65B.44, subd. 3 (1996). Ordinarily, proximate cause is a fact issue. Black v. Stumvoll, 374 N.W.2d 782, 784 (Minn. App. 1985). Proximate cause exists when an insured's automobile injury "played a substantial part" in her inability to work. See id. (explaining test for deciding proximate cause).

When deciding whether an injury played a substantial part in an insured's inability to work, the fact-finder should determine whether at the time of the injury, the insured was employed, had a definite offer of employment, or had "consistently been employed such that a specific future period of employment could reasonably be predicted." Keim, 482 N.W.2d at 825. Because it is undisputed that Zitzloff was not employed at the time of the July 1996 accident and had no definite offer of employment, we assume that the arbitrator found that Zitzloff was consistently employed prior to the accident, such that a future period of employment could reasonably be predicted. See Hilltop Constr., 324 N.W.2d at 239 (absent clear showing to contrary, courts should assume that arbitrator did not exceed his authority); National Indem. Co., 348 N.W.2d at 750 (courts should presume validity of arbitration award).

Whether future employment could reasonably be predicted is a fact question. Keim, 482, N.W.2d at 825. The arbitrator's decision on this issue was therefore final, and the district court erred by vacating the award. See id. (arbitrator's fact findings are final).

An insured is entitled to medical expense benefits for injuries "arising out of" the maintenance or use of a motor vehicle. Minn. Stat. 65B.44, subd. 1.(1) State Farm claims that the medical expense benefits awarded by the arbitrator would reimburse Zitzloff for prior injuries that did not "arise out of" the July 1996 accident. The supreme court rejected a similar argument in Great West Cas. Co. v. Northland Ins. Co., 548 N.W.2d 279, 281 (Minn. 1996), concluding:

Great West accepted [the insured] * * * with whatever physical condition he may have had at that time, and it is not for Great West to either refuse payment of benefits for that portion of his disability caused by a previous injury or is it to seek subrogation from Northland therefore.

In a footnote, the Great West court stated:

We recognize that by this ruling we cast a long shadow over the court of appeals decision in Rodgers v. Progressive Specialty Ins., 499 N.W.2d 61 (Minn. App. 1993). There, the court of appeals held that under the No-Fault Act an insurer was obligated to pay only for the expenses related to the insured's current accident, even though 50% of the current medical treatment was attributable to an earlier accident when the same insurer provided coverage. Id. at 62-65. * * * We disagree with the court's apportioning of PIP benefits, and we consider them payable by the insurer when the insured incurs a compensable loss.

Id. n. 4 (emphasis added).

State Farm argues that Great West is distinguishable because it addressed a no-fault insurer's subrogation allegations against another insurer, whereas the present case deals with a no-fault insurer's responsibility to its insured for pre-existing injuries. The Great West opinion, however, does not suggest an intent to limit its holding in the manner suggested by State Farm; rather, the Great West court specifically pointed out that the opinion "cast a long shadow over" this court's decision in Rodgers, which did not involve a subrogation claim, but involved facts similar to the present appeal.

Finally, Zitzloff requests attorney fees, costs, and disbursements incurred in connection with this appeal. She has provided no basis for an award of attorney fees. A request for costs and disbursements should be made pursuant to Minn. R. Civ. App. P. 139.

Affirmed in part and reversed in part.

* 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) Unlike income loss benefits, medical expenses need not be proximately caused by the injury. Compare Minn. Stat. 65B.44, subd. 3 (governing income loss benefits) with Minn. Stat. 65B.44, subd. 2 (governing medical expense benefits).