Michigan Court of Appeals; Docket #295574; Unpublished
Judges Meter, Cavanagh, and Servitto; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
The Michigan Supreme Court DENIED Leave to Appeal on 3/05/2012; Link to Order
STATUTORY INDEXING:
Lawfully Rendered Treatment [§3157]
TOPICAL INDEXING:
Not Applicable
Case Summary:
In this unanimous per curiam unpublished opinion, the Michigan Court of Appeals affirmed in part and vacated in part, the trial court’s Order granting partial summary disposition in favor of ACIA and the judgment in favor of ACIA. The court also vacated the trial court’s Order granting costs and attorney fees.
In this case, Zigmond Chiropractic, P.C. filed a lawsuit against ACIA for payment for various services Zigmond provided to three individuals entitled to no-fault coverage from ACIA. ACIA then filed a counter-complaint against Neuroscience, P.C., alleging that any amounts that Zigmond was claiming in its lawsuit were paid to Neuroscience. The services at issue provided by Zigmond included hot pack therapy, mechanical traction therapy, therapeutic exercises, massage therapy, myofacial release, neuromuscular reeducation, and kinetic activities. Furthermore, Zigmond also referred the individuals to a neurologist, Dr. Rizwan Qadir of Neuroscience. Neuroscience performed neurological testing to rule out central or peripheral neuropathy. Notably, Neuroscience rented office space from Zigmond Chiropractic and ultimately shared some of Zigmond’s equipment and supplies.
ACIA moved for partial summary disposition, arguing that payment had already been made for the services at issue to Neuroscience and, ultimately, Zigmond and Neuroscience were collaterally and judicially estopped from relitigating ACIA’s liability for the services other than spinal manipulation. Alternatively, ACIA asked the court to rule that the services were not compensable as no-fault benefits, because, other than spinal manipulation, there service not lawfully rendered for purpose of MCL 500.3157, as the services were beyond the scope of chiropractic practice and were not within the scope of professions in which Dr. Zigmond was licensed to practice. The trial court did not address ACIA’s estoppel arguments. Rather, the trial court granted ACIA’s motion on the basis that the services at issue were not within the scope of chiropractic practice and, therefore, were not lawfully rendered to make the services payable as allowable expense benefits.
The court ultimately ruled that the trial court erred in granting ACIA’s motion for summary disposition on the basis that the services were not within the scope of chiropractic practices under Michigan law. The court reasoned that this was not a correct application of the law and that the trial court failed to address whether the specific practices at issue were lawfully rendered under the test set forth by the Michigan Court of Appeals in Hofmann v Auto Club Ins Ass’n, 211 Mich App 55 (1995). The court explained that under the test set forth in Hofmann, a service or activity not within the scope of chiropractic practice may be subject to payment as a no-fault benefit, as long as it was not unlawful to render the service at issue. The court explained that the trial court should have addressed each type of service at issue to determine whether it was lawfully rendered. The court then went on to analyze each service at issue on this basis.
With respect to hot packs, the court explained that “it requires little analysis to conclude that the application of a hot pack to a patient’s back was not unlawful.”
With respect to mechanical traction therapy, the court reasoned that there was at least a question of fact regarding whether the traction therapy was within the scope of chiropractic practice and, therefore, the trial court could not properly conclude, as a matter of law, that the traction therapy was unlawful. In reaching this conclusion, the court noted that under MCL 333.16401(1)(e)(iv) of the chiropractic statute, chiropractic practice includes “the use of . . . adjustment apparatus regulated” by the Administrative Rules applicable to chiropractic services. Under those rules, “'adjustment apparatus' means a tool or device used to apply a mechanical force to correct a subluxation or misalignment of the vertebral column or related bones and tissues for the establishment of neural integrity.” The court reasoned that based on Dr. Zigmond’s testimony, there was at least a question of fact as to whether the traction therapy rendered by Dr. Zigmond was to correct a subluxation or misalignment within the individuals at issue.
With respect to the therapeutic exercises, neuromuscular reeducation, and kinetic activities, the court concluded that these activities fell within the scope of chiropractic practice. The court reasoned that these services constituted “rehabilitative exercises” which are broadly defined to include “the use of exercise . . . for the purpose of correcting or preventing a subluxated or misaligned vertebrae of the vertebral column.” In this regard, the therapeutic exercises included the use of stationary bicycles for the sacroiliac joint. The neuromuscular reeducation therapies were services performed for posture while the patient is seated on a large exercise ball. The kinetic activities were exercises performed to increase the patient’s range of motion or to control and train the muscles of the back. Accordingly, the court ultimately concluded that these services satisfied the broad definition of “rehabilitative exercise” under the chiropractic statute.
With respect to the massage and myofacial release therapies, the court noted that these therapies apparently fell within the scope of chiropractic practice under MCL 333.16401(1)(b)(ii) of the chiropractic statute, which includes within the scope of chiropractic practice, “(a) chiropractic adjustment of spinal subluxations or misalignments and related . . . tissues for the establishment of neural integrity utilizing the inherent recuperative powers of the body for restoration and maintenance of health.” The court went on to explain that even if these activities did not fall within the scope of chiropractic practice, the only way the rendering of these services could be unlawful is if they amounted to the unlicensed practice of massage therapy. The court noted that the Michigan license requirements for a massage therapist, MCL 333.17953 and MCL 333.17957, were added by 2008 and did not become effective until January 2009. The services at issue were rendered in July 2008. Therefore, the court concluded the services could not have been rendered unlawfully.
The court ultimately remanded the case for further proceedings to establish the reasonable charge owed for the services at issue under MCL 500.3107(1)(a).
