Claim by woman who suffered back injury immediately after surgery will be decided by jury
Mary Lou Wilfong underwent spinal fusion surgery and a few months later she was rear-ended by a vehicle owned by Mickalich & Associates. While no injury could be detected in x-rays, her doctor testified that the incident compromised her mobility, altered her gait and range of motion, and was confirmed by a positive leg-raising test. Another of her doctors described her motor vehicle injury as "back pain with radicular symptoms."
Wilfong testified that she had to give up her job as a waitress at Wendy's and take a lower-paying clerical position because she couldn't lift and carry. Nevertheless, the testimony about her loss of income was unreasonably vague and did not document the extent to which her earnings loss was related to losing fringe benefits which are not recoverable in a no fault injury context. A visiting judge directed a verdict against her, however, on appeal to the assigned judge, this decision was overturned. On appeal, a Court of Appeals majority ruled that the case should have gone to the jury on the issue of "serious impairment" because Wilfong had presented evidence of an objective manifestation. It agreed with the visiting judge, however, that the testimony about lost wages was too vague and thus the post three-year wage loss claim was properly dismissed.