Michigan Court of Appeals; Docket #359690; Unpublished
Judges Patel, Borrello, and Shapiro; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Conduct Establishing Unreasonable Delay or Denial [§3148(1)]
Penalty Attorney Fees on Appeal
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s award of attorney fees to Plaintiff Beth Maurer, after a jury returned a verdict in her favor in her action for No-Fault PIP benefits against Defendant Farm Bureau General Insurance Company (“Farm Bureau”). The Court of Appeals held that the trial court did not err in finding that it was unreasonable for Farm Bureau to withhold Maurer’s PIP benefits. Farm Bureau based its denial on (1) the opinions of two insurance medical examiners (“IMEs”), and (2) the fact that Maurer failed to complete a detoxification program it insisted she undergo, but the Court found the examiners’ opinions dubious—especially in light of the contrary opinions of Maurer’s actual treating physicians—and found no authority in support of Farm Bureau’s argument that it could make payment of Maurer’s PIP benefits contingent on her undergoing a detoxification program.
Maurer was injured in a motor vehicle accident in 2000, after which she underwent spine surgery in 2002, to correct a herniated disc at T7-T8. Her spine caused her problems for many years thereafter, and in 2013, she was referred to neurosurgeon Fredrick Junn. Dr. Junn was concerned about the part of Maurer’s spine just below where she underwent surgery in 2002, but he did not recommend surgery at that time. Farm Bureau, meanwhile—which had paid for all accident related treatment of Maurer’s spine through 2015—then sent Maurer for two insurance medical examinations (“IMEs”): one with physical medicine and rehabilitative physician Therese Oney-Marlow, and one with pain management specialist Gene Mitchell. Dr. Oney-Marlow concluded that there was no ‘objective evidence’ that Maurer’s ongoing problems related to the motor vehicle accident, and Dr. Mitchell—without reviewing any of Maurer’s records—simply asserted that nothing was wrong with Maurer. Farm Bureau then demanded that Maurer enter a detoxification program and cease using opioids for pain management, and, when she failed to complete the program, stopped paying her benefits altogether.
In 2018, Dr. Junn recommended that Maurer undergo surgery because her symptoms had worsened and she was now at risk of paralysis. The surgery was performed later that year, after which Maurer filed suit against Farm Bureau, seeking payment of allowable expenses related to the surgery and all the other accident-related treatment she received since being cut off in 2015. The case proceeded to trial, at the conclusion of which a jury returned a verdict in favor of Maurer, and the trial court awarded Maurer attorney fees. Farm Bureau then moved the trial court for reconsideration of the award of attorney fees, arguing that it was not unreasonable for it to deny Maurer’s benefits given the opinions of Drs. Oney-Marlow and Mitchell—as well as the opinion of a neurosurgeon medical examiner, Steven Kalkanis, Farm Bureau obtained after Maurer filed suit—but the trial court denied its motion.
The Court of Appeals affirmed the trial court’s award of attorney fees and denial of Farm Bureau’s motion for reconsideration, holding that it was not clear error for the trial court to have found that Farm Bureau’s denial of Maurer’s benefits was unreasonable. The Court noted that “the mere fact that an insurer’s decision is supported by an expert’s opinion does not lead to the invariable conclusion that the insurer’s decision is reasonable,” and that, in this case, there were legitimate concerns about Farm Bureau’s IMEs. Drs. Oney-Marlow and Mitchell failed to offer “anything more than conclusory statements and recommendations,” and Dr. Kalkanis did not offer his opinion until after Farm Bureau decided to cut off Maurer’s benefits. Even then, he did not state that Maurer’s need for surgery in 2018 was not related to the 2000 accident; he merely stated that he could not definitively associate the two.
On the other side of the ledger were the opinions of Maurer’s treating physicians, Dr. Junn and her pain management specialist, Dr. Washabaugh. The Court did not identify any specific statements regarding causation made by any of Maurer’s treating physicians—except to note that Dr. Washabaugh testified that the changes in her back were “not the result of normal aging”—but the Court did generally state that they linked the need for surgery in 2018 to the 2000 accident. The Court also noted that Dr. Kalkanis testified “that Dr. Junn was a great surgeon who performed a surgery that was ‘totally indicated’ from the medical evidence.” Given all this competing evidence, the Court held that the trial court did not commit clear error in weighing the opinions of the various doctors and determining that it was unreasonable for Farm Bureau to have relied on Drs. Oney-Marlow’s and Mitchell’s opinions, not Drs. Washabaugh’s and Junn’s.
“Given the conclusory nature of Dr. Oney-Marlow’s and Dr. Mitchell’s reports, the imaging evidence contradicting them, the opposing opinions of Maurer’s treating physician, and the after-the-fact opinion and testimony Dr. Kalkanis, we are not left with the definite and firm conviction that the trial court erred when it found that Farm Bureau’s decision was unreasonable under the totality of the circumstances.”
The Court also rejected Farm Bureau’s argument that it was reasonable to suspend Maurer’s benefits until she completed detoxification.
“Farm Bureau further suggested that its decision was reasonable because it suspended all payments for medical care or other services on the condition that Maurer undergo detoxification. Farm Bureau argued that it did not have to resume payments because the evidence showed that Maurer did not successfully complete detoxification, and she returned to heavy opioid use after a brief outpatient detoxification regimen. But Farm Bureau does not explain how Maurer’s unsuccessful detoxification effort made it reasonable for Farm Bureau to refuse to pay for all of Maurer’s medical expenses. Even if her failure to participate in an in-patient detoxification program might have supplied a bona fide reason to dispute the continued payment for pain management, it did not constitute a bona fide reason to dispute payment for treatment to monitor and correct the continuing degeneration of Maurer’s back. See McKelvie, 203 Mich App at 336. Given the evidence that Maurer could have suffered paralysis if her back condition were left untreated, a reasonable finder of fact could conclude that it was unreasonable for Farm Bureau to insist that Maurer complete a detoxification program before seeking treatment for her back condition and before undergoing surgery.”
