Kurt D. Johnson, Gislason, Dosland, Hunter & Malecki, One South State Street, Box 458, New Ulm, MN 56073 (for respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.

Appellant challenges the trial court's judgment in favor of respondent, denying appellant no-fault medical and economic loss benefits. Because we find no error by the

trial court, we affirm.

Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).

Basic economic loss benefits shall provide reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle * * *.

Minn. Stat. § 65B.44, subd. 1 (1996).

Murphy alleges that the pain she currently suffers is due to a car accident that occurred on May 10, 1986. The principles applied in construing the phrase "arising out of maintenance or use of a motor vehicle" under Minnesota law, are as follows (1) there must be some "causal connection" between the injury and the use of the vehicle for transportation purposes, (2) this causal connection is less than proximate cause, but more than the vehicle being the mere situs of the injury, (3) the requisite connection exists if the injury is a natural and reasonable incident or consequence of the use of the vehicle, and (4) the vehicle must be an "active accessory" to the injury sustained. Waseca Mut. Ins. Co. v. Noska, 331 N.W.2d 917, 920 (Minn. 1983) (citation omitted).

Murphy argues that all four factors have been met, and, therefore, she is entitled to benefits. The trial court, however, found that Murphy failed to prove that the car accident, and not subsequent medical treatment, was the cause of her injuries.

In determining whether a casual connection existed, the court in Continental W. Ins. Co. v. Klug, 415 N.W.2d 876 (Minn. 1987) outlined three considerations (1) the extent of causation between the automobile and the injury, (2) if causation is present, whether an act of independent significance occurred, that broke the causal connection between the use of the vehicle and the injuries, and (3) if no intermediate act broke the casual connection, whether the vehicle was being used for transportation at the time of the injury. Id. at 878.

In this case, Murphy was involved in a car accident in May 1986. Immediately after the accident it was determined that she suffered a fractured sternum and a cracked rib. She did not complain of back pain and was not treated for any back injury. She was given a rib belt to wear, but received no further treatment from the physician who treated her immediately after the accident.

Murphy sought treatment for back pain in February 1987, enduring a series of examinations and treatments from a variety of doctors. Prior to February 1987, she had not seen a physician regarding back pain. Pursuant to a recommendation by Dr. Paul Arneson, an orthopedic surgeon, Murphy underwent back surgery in 1988, which resulted in ongoing pain. She alleges that the various treatments were a result of the May 1986, car accident. She contends that, but for the car accident, she would not have sought the treatment from Dr. Arneson, which resulted in her current back problem.

Regardless of the truth of Murphy's allegation that she saw Dr. Arneson due to the car accident, Dr. Arneson's decision to perform surgery was not related to the car accident. All other medical experts who examined Murphy stated that the surgery was unnecessary and unwarranted and that her current pain is a direct result of the surgery. The trial court found that the injuries that Murphy currently suffers are the result of the 1988 surgery, not the 1986 accident. Because Murphy's injuries do not arise "out of the maintenance or use of a motor vehicle" as outlined in Minn. Stat. § 65B.44, subd. 1 (1996), we conclude that the surgery conducted by Dr. Arenson was an act of independent significance that broke the causal chain between the accident and Murphy's ongoing medical problems.

§ 65B.44, which provides for recovery of 85% of the injured person's loss of present and future gross income. Minn. Stat. § 65B.44, subd. 3 (1996). To qualify for these benefits, the injured person must show that she

1. was employed,

2. had a definite offer of employment, or

3. had consistently been employed such that a specific future period of employment could reasonable be predicted.

Keim v. Farm Bureau Ins. Co., 482 N.W.2d 823, 825 (Minn. App. 1992), review denied (Minn. May 21, 1992).

In this case, it is undisputed that at the time of the accident Murphy was not working. She had worked as a bartender for a short time in 1985, but was not employed prior to that time. After the accident Murphy briefly worked as a telemarketer and as a housekeeper. She has not had a job since 1991, nor has she had any offers of employment. Murphy does not meet the standard outlined in Keim and, therefore, is not entitled to benefits under Minn. Stat. § 65B.44, subd. 3.

Affirmed.