Melissa Miller recently achieved a fantastic result for her client at a jury trial in February, in Dewitt v. State Farm. Mr. Dewitt was injured in a serious snowmobile accident in December of 2002. As a result of that accident, he suffered a burst fracture of his T12 vertebra, which required surgical rods to be placed in his back. Unfortunately, following the surgery he developed an infection that spread to his heart and his brain, leading to a mitral heart valve replacement and causing several brain aneurisms. In February of 2004 his own insurance company, State Farm, cut off Mr. Dewitt's income replacement benefits.

At the time of the accident, Mr. Dewitt ran his own business – industrial saw and knife sharpening. Mr. Dewitt tried to go back to work, but he could no longer do the same amount or the same type of sharpening, and he required help from his family just to keep his business afloat. The jury heard all of the evidence and found that Mr. Dewitt was completely unable to do any job that he was reasonably suited by way of training, education or experience from February 2004 to present! This was a huge victory for Mr. Dewitt and his family.

Mr. Dewitt's win is also a victory for all people fighting for income replacement benefits despite having enough strength and perseverance to return to some form of work. Sometimes accident victims are afraid to return to part-time work out of fear that their insurance company will decide that they are all better and therefore not entitled to income replacement benefits any longer. In Mr. Dewitt's case, the jury did not penalize him for trying his best to work as much as he could in his old business, and the jury still found that Mr. Dewitt met the "complete inability" test despite the fact that he was still working. The evidence was that, although Mr. Dewitt continued to operate his business, he made substantially less money, worked fewer hours, took regular and long breaks, was less efficient, and gave up the more physically demanding components of his business. Mr. Dewitt is an example of a hard working accident victim who returns to work in some limited capacity, but still meets the "complete inability" test. Justice Stinson, in his charge to the jury, explained that the jury ought to consider factors such as the job Mr. Dewitt was doing before the accident, his background and training, the money he was capable of earning before compared to after the accident, and whether Mr. Dewitt was capable of working at a competitive level. The jury was asked to consider whether Mr. Dewitt would be able to perform that job with a reasonable level of competency, consistency, productivity, and working hours required by a reasonable employer in the competitive market place.

Following the accident, Mr. Dewitt was only working a fraction of the hours he used to before the accident, not at all consistently, was earning a fraction of what he was formerly able to earn, and lacked the stamina and concentration to do anything other than what he had been doing since he was 10 years old – sharpen knives. Given his significant limitations, and despite the fact that he was able to work through his will power and determination, the jury found that he was entitled to the income replacement benefits that had been cut off by State Farm 15 years ago!