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Nasrallah, et al v Argonaut-Midwest Ins Co (COA – UNP 11/10/2022; RB #4506)

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Michigan Court of Appeals; Docket #360277; Unpublished
Judges Garrett, O’Brien, and Redford; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 


STATUTORY INDEXING:
Allowable Expenses: Claims by Services Providers [§3107(1)(a)]
General / Miscellaneous [§3107b(b)]

TOPICAL INDEXING:
Workers Disability Compensation Act (MCL 418.1, Et Seq.)


SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Back in Motion Chiropractic, DC, PLLC’s (“Back In Motion”) first-party action against Defendant Argonaut-Midwest Insurance Company (“AMIC”). The Court of Appeals held that a question of fact existed as to whether various chiropractic and massage therapy services Back In Motion provided to Mariam Baydoun, AMIC’s insured, were compensable under the relevant provisions of the No-Fault Act.

After Mariam Baydoun was injured in a motor vehicle accident, she received various services from Hassan Reichouni, a licensed massage therapist and chiropractor, and the owner of Back in Motion. The services Baydoun received included massage therapy, mechanical traction, therapeutic exercise, heat therapy, and trigger point therapy, and after receiving said services, Baydoun assigned her right to pursue no-fault PIP benefits related to each to Back In Motion. Back In Motion proceeded to seek reimbursement from Baydoun’s insurer, AMIC, but AMIC denied Back In Motion’s claim—and moved for summary disposition in Back In Motion’s resultant first-party action against it—based on its determination that the services were not compensable under the No-Fault Act. The trial court denied AMIC’s motion as to the massage therapy services, but granted it as to all other services.

The Court of Appeals reversed the trial court’s summary disposition order, observing at the outset of its analysis that, under MCL 500.3107b(b), PIP benefits are only payable for chiropractic services if those services were ‘included in the definition of practice of chiropractic under section 16401 of the public health code, 1978 PA 368, MCL 333.16401, as of January 1, 2009.” The Court of Appeals then addressed each of the services at issue, in turn.

With respect to mechanical traction services, the Court observed that in Hoffman v Auto Club Ins Ass’n, 211 Mich App 55 (1995), it held that ‘[mechanical] traction is within the scope of chiropractic when used for purposes of correcting a subluxation or misalignment of the vertebral column or related bones and tissues, but excluded when used for therapeutic, treatment purposes.’ In this case, Back In Motion presented an affidavit from Reichouni in which he averred that he administered mechanical traction services to Baydoun ‘to correct [Baydoun’s] spinal subluxations and related bones and tissues for the establishment of neural integrity.’ Since AMIC “presented no substantively admissible evidence to [contradict Reichouni’s affidavit],” there was at least a question of fact as to whether the mechanical traction services were for correcting a subluxation or for therapy.

“In opposing summary disposition, Back In Motion presented Dr. Reichouni’s affidavit, in which he stated that he ‘performed manual chiropractic adjustments as well as intersegmental mechanical traction to correct [Baydoun’s] spinal subluxations and related bones and tissues for the establishment of neural integrity.’ AMIC presented no substantively admissible evidence to the contrary. Thus, Dr. Reichouni’s undisputed attestation is more than enough to yield a genuine issue of material fact that the mechanical traction services were for correcting a spinal subluxation, and therefore fall within the January 1, 2009 definition of ‘practice of chiropractic’ under MCL 500.3107b(b). See Hofmann, 211 Mich App at 82; former 333.16401(1)(b)(ii). Accordingly, the trial court erred by granting AMIC summary disposition on the disputed claims for mechanical traction.”

With respect to therapeutic exercise services, the Court observed that, in Hoffman, it held that therapeutic exercises fall within the scope of chiropractic if they involve ‘active movement’ and are not mere ‘passive treatment procedures.’ In this case, Reichouni’s affidavit stated that Baydoun ‘participated in rehabilitative exercise that involved her active participation in strengthening, range of motion, and stretching against resistance.’ Thus, there was also a question of fact as to the therapeutic exercise services Back In Motion provided to Baydoun.

“As noted, ‘practice of chiropractic’ included the use of ‘rehabilitative exercise’ in the statute existing on January 1, 2009. Former MCL 333.16401(1)(b)(iii). In Hofmann, 211 Mich App at 77, this Court explained that ‘rehabilitative exercise’ does not include ‘passive treatment procedures.’ Rather, rehabilitative exercises fall within the practice of chiropractic when they involve ‘active movement.’ Id. at 78. Again, in opposing summary disposition, Back In Motion presented Dr. Reichouni’s affidavit testimony, in which he attested that Baydoun ‘participated in rehabilitative exercise that involved her active participation in strengthening, range of motion, and stretching against resistance.’ Evidence that Baydoun actively engaged in the rehabilitative exercises is sufficient to create a genuine issue of material fact as to whether such exercises fall within the January 1, 2009 ‘definition of practice of chiropractic’ for purposes of MCL 500.3107b(b). See Hofmann, 211 Mich App at 76-78. Thus, the trial court erred by granting AMIC summary disposition on Back In Motion’s ‘therapeutic exercise’ claims.”

With respect to heat therapy services, the Court noted that Reichouni was a licensed massage therapist and that such services are compensable under MCL 500.3107 if rendered lawfully. Massage therapy—which is distinct from physical therapy—is governed under part 179a of the Public Health Code, and MCL 333.17951(1)(d) expressly contemplates the kind of heat therapy services Reichouni provided to Baydoun.

As noted, it is undisputed that Dr. Reichouni is a licensed massage therapist. MCL 333.17951(1)(d) provides:

‘Practice of massage therapy’ means the application of a system of structured touch, pressure, movement, and holding to the soft tissue of the human body in which the primary intent is to enhance or restore the health and well-being of the client. Practice of massage therapy includes complementary methods, including the external application of water, heat, cold, lubrication, salt scrubs, body wraps, or other topical preparations; and electromechanical devices that mimic or enhance the actions possible by the hands. Practice of massage therapy does notinclude medical diagnosis; practice of physical therapy; high-velocity, low-amplitude thrust to a joint; electrical stimulation; application of ultrasound; or prescription of medicines. [Emphasis added.]

In light of that statutory definition, Dr. Reichouni’s undisputed status as a licensed massage therapist, and his affidavit testimony that his ‘application of moist hot packs’ was performed ‘in keeping with [his] education, training, and experience as a massage therapist,’ we perceive no basis to conclude that the heat-therapy services were performed unlawfully.

With respect to trigger point therapy services, the Court noted that those services are also expressly contemplated under MCL 333.17951(1)(d)—and therefore compensable under MCL 500.3107—and that Reichouni administered them in his capacity as a massage therapist, not a chiropractor.

“As with the heat-therapy services, there is authority suggesting that the trigger point massage therapy falls outside the January 1, 2009 ‘definition of practice of chiropractic’ for purposes of MCL 500.3107b(b). See Measel, 314 Mich App at 337 (‘[T]he massages do not fall within the former definition of ‘practice of chiropractic’ under MCL 333.16401 because they involved treatment to areas other than [the patient’s] spine.’). In his affidavit, Dr. Reichouni stated that he performed ‘targeted manual massage of the trigger points with [his] thumbs and/or elbows (trigger point therapy),’ and that he did so ‘in keeping with [his] education, training, and experience as a massage therapist,’ not as a chiropractor. But Back In Motion presented no evidence specifying that these trigger point massage services were limited to, or even involved, Baydoun’s spine.

Again, however, the exclusion of such treatment from the January 1, 2009 definition of ‘chiropractic’ services is not, standing alone, fatal to Back In Motion’s massage-therapy claims. See Hofmann, 211 Mich App at 65. To reiterate, MCL 333.17951(1)(d) defines the ‘[p]ractice of massage therapy’ as ‘the application of a system of structured touch, pressure, movement, and holding to the soft tissue of the human body in which the primary intent is to enhance or restore the health and well-being of the client.’ (Emphasis added.) Dr. Reichouni attested that the disputed trigger-point therapy was performed ‘in keeping with [his] education, training, and experience as a massage therapist.’ Considering the statutory definition of massage therapy, along with Dr. Reichouni’s affidavit testimony, a genuine issue of material fact exists whether the trigger point therapy services are reimbursable expenses under the no-fault act. By concluding that summary disposition on these claims was appropriate, the trial court erred.”

Lastly, the Court rejected AMIC’s alternative argument on appeal: that no-fault insurers should not be obligated to pay for massage therapy services because employers are not required to pay for massage therapy services under the Worker’s Disability Compenation Act of 1969 (WDCA), pursuant to the Court’s holding in Belcher v Ford Motor Co, 333 Mich App 717 (2020). The Court noted that “Belcher’s relevant holdings were premised exclusively on a provision of the WDCA . . . not any section of the no-fault act,” and held that “[t]here is no basis for importing that provision of the WDCA into the no-fault act[.]”

“We are unpersuaded by AMIC’s argument. Belcher’s relevant holdings were premised exclusively on a provision of the WDCA, MCL 418.315(1), not any section of the no-fault act. There is no basis for importing that provision of the WDCA into the no-fault act via the in pari materia canon of construction as AMIC suggests. See Mathis v Interstate Motor Freight Sys, 408 Mich 164, 179; 289 NW2d 708 (1980) (recognizing that the WDCA and no-fault act ‘are complete and self-contained legislative schemes addressing discrete problems’ and that ‘[n]either act refers expressly to the other’). Therefore, we reject AMIC’s argument that Belcher’s relevant holdings concerning the WDCA apply with equal force in the no-fault context.”


Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

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