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On February 9, 2016, the Michigan Court of Appeals issued a Published Opinion that restricts certain reimbursements for chiropractic care under the no-fault act.  The case is Measel v Auto Club Ins Co.  The basic facts are that Ms. Measal was injured (neck, upper back and arm) in a motor vehicle crash.  As part of her medical treatment, she received ultrasound therapy (neck and upper back) and massage therapy (arm) from a chiropractor’s office.  AAA of Michigan refused to pay for the care arguing that neither modality of service was reimbursable under the no-fault act; this lawsuit followed.  Per MCL 500.3107b(b), chiropractic care is reimbursable provided the nature and extent of the services provided “was included in the definition of practice of chiropractic under” MCL 333.16401, as of January 1, 2009.  In short and analyzing the definitions of the statute, on their own plain terms, the Court of Appeals concluded that, generally, ultrasound therapy and massage therapy “fell within the current definition of ‘practice of chiropractic’ under MCL 333.16401” and therefore, held “each of these services is ‘[a] practice of chiropractic service’ for purposes of MCL 500.3107b(b).”  But that holding was not the end of the Court’s review and analysis.  It then considered AAA’s alternative argument that because an assistant and not the actual chiropractor provided the service, the care was rendered unlawfully and thus, excluded from no-fault reimbursement, regardless.  Turning to the Public Health Code and its definition of “supervision” under MCL 333.16215 , the Court concluded further that the care was lawfully rendered under the supervision of the chiropractor and thus, not barred under the no-fault act.  But that holding, also, was not the end of the Court’s review and analysis.  Finally, the Court turned to the testimony and records of the chiropractor who stated/documented that when performing the ultrasound and massage therapy on Ms. Measal, her entire neck and upper back and “‘whole arm ‘” were treated.  While ultrasound and massage therapy are, generally , reimbursable under the no-fault act, in this case, they were deemed not reimbursable because, as the Court of Appeals reasoned, “they involved treatment to areas other than Measel’s spine.”  The Court reached its conclusion by relying on an old case, Hoffman v Auto Club Ins Ass’n, 211 Mich App 55 (1995), which basically held that chiropractic care was limited to treating the “spine” only.  Because Ms. Measal received ultrasound and massage therapy to not only her spine, but to her connective tissues and “whole arm”, the Court concluded that the chiropractor rendered care beyond the spine and thus, outside the definition “‘practice of chiropractic’ under MCL 333.16401.” (And “Yes,” you read that correctly in case you are scratching your head right now.).  The resulting consequence of this opinion is that even though Ms. Measal faithfully paid auto insurance premiums for the rare chance she may get hurt in an auto accident and require medical care, her own insurer turned against her and fought to deny payment and actually succeeded leaving Ms. Measal personally liable and in debt for the chiropractic expenses.  (And “Yes,” you read that correctly, too, in case you are scratching your head again right now.).

Authored by L. Page Graves

The Michigan Legislature is, again, debating a proposal to raise the speed limits for state and county roadways.  The package of bills (HB 4423  thru 4427) have been passed by the House Transportation Committee (Chaired by Republican, Peter Pettalia, District 106) and will now be considered and debated by the full House.  A comprehensive legislative analysis of the bills and “the 85th Percentile” rationale by the House Fiscal Agency can be found here.  Increasing the speed limit raises safety questions for Michigan motorists.  Political alliances are forming for and against the proposal; one partisan hypothesis by the Mackinaw Center for Public Policy (in favor of the bills) cynically charges that those who oppose the bills — citing safety concerns  — are actually, just privately motivated by financial loss if the bills are implemented.  Meanwhile, the MDOT is on record confirming that its studies factually prove that higher speeds lead to more serious accidents.  We will continue to monitor and report about the status of this important legislation that will impact us all.

Authored by L. Page Graves

Winter has finally arrived with piles of fresh powder.  And for snowmobilers across the State of Michigan, the trails of northern Michigan are increasingly becoming more populated.  In Michigan, it is illegal to operate a snowmobile with a blood alcohol level equal or greater than .08.  The newly revised law took effect on December 30, 2014.  And while common sense dictates caution and due care, just like driving a car, there is no excuse for operating a snowmobile while under the intoxicating influence of alcohol (or controlled substances). Regrettably for all, a few people still recklessly use poor judgment and drink and ride snowmobiles while drunk.  And sadly, the tragic consequence for doing so can be fatal.  Sadly still, stories like this are endless and that is why snowmobiling publications and associations across the nation work tirelessly to promote safety and discourage drunk snowmobiling.  You can do your part by leading and encouraging others to do the same.  Now go enjoy the trails!

Authored by L. Page Graves

It may seem obvious.  It may seem an unnecessary public service caution to express.  Especially for us northern Michiganders.  But for whatever the reason, once winter returns the local news is ripe with car crashes occurring in our area, most often because a driver was driving too fast for conditions.  The posted speed limit is for optimum road driving conditions.  It is not the lawful and prudent speed in less than optimum conditions.  Winter road conditions mandate slowing down.  This is commonly known and referred to as “the basic speed law” which we are all taught in driver’s education.

Authored by L. Page Graves

Since last week’s blog post, the Michigan Court of Appeals issued yet another published decision strengthening a medical provider’s independent standing to pursue no-fault benefits.  The case is Chiropractors Rehabilitation Group v State Farm Mut Ins Co, found here.   As has been the insurance industry’s repeated attack, State Farm challenged the standing of a medical provider to bring its own, independent no-fault claim.  And once again, the Court of Appeals rejected the attack relying on the express language of section 3112, which states, in pertinent part, that “[p]ersonal protection insurance benefits are payable to or for the benefit of an injured person. . . .” (Emphasis supplied).  The Court further relied on its previously published and binding decisions, including last week’s Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, found here.  The import of these decisions is clear: Medical Providers should aggressively pursue no-fault insurance recovery and ignore an insurer’s games in delaying and denying proper payment.  For a more informative discussion on how to build a successful medical provider auto insurance litigation campaign, please contact us for a free consultation.  Members of our team of no-fault insurance lawyers have been handling direct medical provider no-fault claims for over 15 years.

Authored by L. Page Graves

The Michigan Court of Appeals has strengthened medical service providers’ rights under the Michigan No-Fault Act.  On October 22, 2015, the court published a recent decision which upheld Covenant Medical Center’s claim against State Farm.  Specifically, Covenant had notified State Farm of its billings and its claim for payment.  Unbeknownst to Covenant, State Farm then negotiated a settlement with the patient.  When Covenant filed its lawsuit to collect, State Farm attempted to avoid liability because the insured patient had released State Farm from any liability.  In rejecting State Farm’s disingenuous ploy to avoid liability, the court relied upon the plain language of the no-fault statute, section 3112, which makes plainly clear that when the insurer has written “notice of the claim of some other person”, the insurer’s liability is not extinguished.  Critical to the court’s holding and application of the statute was the fact that Covenant’s written notice preceded State Farm’s settlement with its insured.  The case is titled Covenant Medical Center v State Farm and can be found here.  For more information about this case and how it can either help or harm medical service providers, please contact us for a free consultation, in that regard.

Authored by L. Page Graves

There has been a radical change to Michigan’s No-fault Law.  The radical change was announced in the recent decision published by the Michigan Court of Appeals, on September 10, 2015. The radical case is Perkovic v Zurich American Insurance Company, __ Mich App __ (2015).  Since the no-fault act was enacted back in 1973, it has been common and routine industry practice and custom for medical providers, like hospitals, to submit claim information on behalf of the insured patient to open a claim and get medical bills paid.  This rudimentary custom was founded upon the plain and ordinary language of the written notice provision set forth at MCL 500.3145(1) which provides:

“An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.” (Emphasis supplied).

In the Perkovic case, Mr. Perckovic was injured in a motor vehicle crash on February 28, 2009.  Within 61 days later, the hospital that provided him care sent to Zurich a copy of its medical bills which identified Mr. Perkovic’s name and address.  The hospital also (as is customary) submitted corresponding medical records which contained the following information (which included the date of the MVA service record when Mr Perckovic was received in ER and treated):

“46 yo male semi truck driver.  R upper back pain after MVC.  States that he was driving down interstate when car in front of him began to spin, he swerved to avoid the car since in semi and ran into a wall hitting front driver side.”

“back sprain, cervical sprain or fracture, chest wall contusion, contusion, head injury, liver injury, myocardial contusion, pneumothorax, splenic injury, sprained or fracture extremity.”

On May 19, 2009, Zurich denied the claim arguing that “‘No injury report on file for this person.'”  Mr. Perckovic filed a lawsuit and Zurich defended, claiming “that no written notice of injury was provided to it within one year” as contemplated by MCL 500.3145(1).  In an extremely radical departure from over 4 decades of industry custom and procedure between medical providers and Michigan auto no-fault insurers, as well as established Michigan No-fault law jurisprudence under MCL 500.3145(1), the Court of Appeals held that the hospital’s claim submission for Mr. Perckovic “did not provide sufficient notice pursuant to MCL 500.3145(1)”.  In reaching its decision, the Court of Appeals reasoned, as follows:

“In this case, however, no letter or written form was sent that would alert the defendant to the possible pendency of a no-fault claim.   Rather, the medical bill and medical records were sent to defendant without any indication or a possible claim.  In fact, according to [the hospital representative], the bill and records were sent for the purpose of obtaining payment.  This notice of injury, which was unrelated to a possible claim for no-fault benefits, did not trigger defendant’s investigative procedures or advise defendant of the need to appropriate funds for settlement.”  (Emphasis supplied).

Going back to the plain language of the statute above, obviously there is nothing in it stating that a “letter” is required.  And respectfully, what is this “letter” that the Court refers to?  Similarly, nothing in the statute indicates that a “written form” is to be used or completed.  And again, respectfully, what is this “written form” that the Court refers to?  As has been common, customary practice, the hospital sent in its claim documentation which the sophisticated Michigan no-fault insurance company has routinely understood and accepted as notice of a claim because, as the plain language of the statute says, notice can be submitted “by someone in his behalf”.  And by the content of the information submitted by the hospital to Zurich, who can objectively state that it was not advised of its insured, Mr., Perckovic “name and address” and the “time, place and nature of his injury.”

The tragic consequence of the decision reached by the Court — and why its decision is so radical — is that Mr. Perckovic ended up being 100% stuck with the hospital bill.  Mr. Perckovic’s insurer, which was timely and fully paid auto-insurance premiums, walked away from the courthouse having to pay absolutely nothing, simply by the radical stroke of the pen by the Court of Appeals.  Parenthetically, notice that this radical change in the law did not comport with the Michigan Constitutional division of government: the law change was not authored by the Legislature and was not signed into law by the Governor.

This extremely radical change in the Michigan No-Fault law now applies to all concerned: the injured, insured person and all treating medical providers.  The Court of Appeals gave no indication or explanation as to what a “letter” or “written form” must look like or conform to.

Injured people and their medical treaters are welcomed to call our law firm to discuss conceptual methods and procedures that may satisfy the notice requirement of MCL 500.3145(1), as contemplated by the Court of Appeals in Perckovic.

Authored by L. Page Graves

Since last week’s major storm up in Northern Michigan, tree clean-up is the task at hand for a great many of residents.  Obviously, caution is paramount when operating a chainsaw.  Kickback is the most common and seriously harmful consequence of either inexperienced or careless operation.   Understanding the correct way to operate a chainsaw and avoid kickbacks is relatively straightforward.  If resources permit, it is advisable to hire expert tree service companies to clear fallen trees and debris; there are multiple reputable and local tree service companies here in Northern Michigan permitting you to “keep it local” too.

 

Authored by L. Page Graves

So you and your pals have driven to northern Michigan to play a round of golf at one of its many, beautiful golf courses. You get to the starter shack at the first tee box and the person takes down your assigned golf cart number and then presents to you a “Golf Cart Agreement”. You likely are told it is required that you sign the agreement before you can tee off. Chatter about the course and where the pins are located that day coupled with cart-path-only rules, follow as the signature sheet is placed in front of you to sign. You are consumed with the moment and beauty of the anticipated round; you could care less about the golf cart agreement because you know you will be a responsible person and nothing dramatic will happen. You tee one down the middle of hole number one and off you go. Unbeknownst to you, however, the grounds keeping crew forgot to put a sprinkler drain head-cover back on an irrigation system being worked on that morning. Tall grass grows around the large uncovered hole by the green. You make your put and walk off heading to your golf cart and…..down goes your foot and leg. You hyper-extend your knee and tear your ACL. Golf season is now over. And then the really bad news is revealed: that so-called “Golf Cart Agreement” was less about the golf cart and your responsibility for any damage you may cause to it and more about your having just completely released the golf course of any liability, whatsoever, for its negligence which caused your torn ACL. The dirt literally is in the details. Read any such form that is shoved into your hands while you are pulling out the driver on hole number one. You likely will sign it anyway because you want to play; but just be informed of what it is that you are signing and giving up in the process. For those of you who did not have to sign a “Golf Cart Agreement” or its equivalent and were injured because of the negligence of a golf course or its employees, please contact Smith & Johnson, Attorneys, P.C., for your free consultation about your legal rights.

Authored by L. Page Graves

Up here in northern Michigan, we are blessed with so many trails, walkways and places to walk, hike, bike or recreate. And to many, dogs are equally part of that cherished family activity. For everyone’s benefit and safety using the trail, sidewalk, walkway or venue, dogs are required to be leashed at all times. Keeping dogs on a leash not only safely protects others from unwanted or unexpected contact, but it also serves to keep the family pet safe, too. Summertime brings increased motorized traffic to our region which, statistically, adds to the probability of a dog being hit by a car, when not on a leash. For more information about Michigan’s leash law or about dog bite liability, generally, please contact Smith & Johnson, for a free consultation.

Authored by L. Page Graves