This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Vicky Jo Dahmes,



American Family Insurance Group,


Filed October 20, 1998


Toussaint, Chief Judge

Redwood County District Court

File No. C597372

James Brian O'Leary, O'Leary & Moritz, Chartered, 102 North Marshall, P.O. Box 76, Springfield, MN 56087 (for appellant)

Paul J. Simonett, Farrish, Johnson & Maschka, 201 North Broad Street, P.O. Box 550, Mankato, MN 56002 (for respondent)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Thoreen, Judge.[*]


TOUSSAINT, Chief Judge

Appellant Vicky Jo Dahmes challenges the trial court's determination that her insurer, respondent American Family, is not liable for her medical benefit and wage loss claims. Because there is substantial evidence in the record to support the trial court's findings, we affirm.


Insurance coverage issues are questions of law for the court. State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn. 1992). However, this court will reverse a trial court's findings of fact only if it is convinced that a mistake has been made. In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993).


Medical Expenses

"Medical expense benefits shall reimburse all reasonable expenses for necessary medical * * * services * * *." Minn. Stat. § 65B.44, subd. 2 (1996). An insurer has the burden to show that a claimant was not entitled to benefits, but may meet that burden with an independent medical examination (IME). Wolf v. State Farm Ins. Co., 450 N.W.2d 359, 362 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990). The burden then shifts to the claimant to show entitlement to benefits. Id. Appellant claims she is entitled to $8,388.81 because the medical bills she incurred after the cutoff were reasonable expenses for necessary medical services.

Respondent met its burden with both an IME in August 1996 and the report of Mayo Clinic physicians who evaluated appellant for four days in September 1996. The IME stated that appellant required no further diagnostic testing or medical or chiropractic treatment. The Mayo Clinic reported that appellant required no surgery, that her tests revealed no abnormalities, and that she should stop wearing her neck collar.

Respondent's position was reinforced by the deposition testimony of appellant's chiropractor, who treated her after the cutoff and whom she called as a witness. The chiropractor testified that appellant's use of a neck brace against medical advice "led to a great deal of deconditioning in the muscles of her neck, as well as, a significant loss or the cause of the loss of range of motion." He explained that appellant had not improved between March and July 1997, when he had been expecting to discharge her, "[b]ecause of the extensive amount of deconditioning that she suffered because of wearing the hard cervical collar * * *." On cross-examination, he answered "correct" when asked if appellant's problem was excessive use of the collar. He said that his goal had been to "wean her off the use of the collar" and that he was aware that doctors during the previous year had made the same attempt. The results of the IME and the examination at the Mayo Clinic, together with the chiropractor's testimony, support the finding that the medical bills appellant incurred after her benefits were cut off were not "reasonable expenses for necessary medical services."


Wage Loss

Since the cutoff, appellant claims wage loss in the amount of $12,488.38. Again both the IME and the Mayo Clinic report support respondent's decision to discontinue benefits. The IME stated that appellant was able to return to work at light duty, i.e., lifting up to five pounds four times an hour, lifting one to two pounds eight inches off a table, frequent extension and flexion of the neck, holding the neck static for extended periods, and advised a work hardening program, enabling appellant to resume both her usual work activities and a full-time schedule. The Mayo Clinic, in response to a phone call appellant made after her evaluation there, advised her that there was no contraindication to her returning to work, maybe part time for two weeks but then full time, and that appellant should avoid repetitious lifting of more than 15 to 20 pounds and reaching up. At trial, appellant's employer, the Zytec Corporation, provided further support for discontinuing benefits. The Zytec safety manager testified that a light-duty job had been designed for appellant so she could work within her restrictions, that her work station was modified to accommodate her restrictions, that appellant was encouraged to move around as much as she liked while at work, that there was no quota system requiring her to accomplish a specific amount of work, and that after a job had been designed for appellant, she would often simply not show up for work or work only part time for a few days at the job.

Appellant argues that she is entitled to benefits because there is no evidence that she could return to her previous full-time employment. However, injured persons unable to work at the job they previously held are not entitled to wage loss benefits unless they are unable to engage "in any substantial gainful occupation or employment on a regular basis, for wage or profit, for which [they are] or may by training become reasonably qualified." Minn. Stat. § 65B.44, subd. 3 (1996). There is ample evidence that appellant is able to engage in substantial, gainful employment, that such employment was made available to her by her employer.

We see no mistake in the trial court's findings that appellant is no longer entitled to medical and wage loss benefits, and affirm.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.