Michigan Court of Appeals; Docket No. 64820; Published
Judges Kelly, Shepherd, and Cooper; 2-1; Opinion by Judge Kelly
Official Michigan Reporter Citation: 133 Mich App 375; Link to Opinion 
STATUTORY INDEXING:
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Conduct Establishing Unreasonable Delay or Denial [§3148]
TOPICAL INDEXING:
Evidentiary Issues
CASE SUMMARY:
In this 2-1 opinion by Judge Kelly, the Court of Appeals reversed the trial court's attorney fee award under §3148 of the Act on the basis mat the trial court erred in finding the defendant acted "unreasonably" in terminating plaintiffs chiropractic treatments.
The plaintiff was in an automobile accident in January of 1979 wherein she sustained soft tissue injuries to her neck and back. After initially treating with an orthopedic surgeon, plaintiff began treating with a chiropractor in July 1979. Between July 1979 and November 1980, plaintiff received in excess of 78 chiropractic treatments. Plaintiff’s no-fault insurer, defendant DAIIE, had plaintiff examined by a second orthopedic surgeon who wrote a report stating that he could find no objective symptomatology or support for plaintiff’s symptoms. Defendant also received a medical report from the orthopedic surgeon who first treated plaintiff, stating that plaintiff was "symptom free" as of March 1979. In addition, defendant received a report from plaintiffs chiropractor stating that plaintiff had sustained a variety of spinal sprains which were related to the automobile accident and that she was in need of further chiropractic treatment After receiving the report of the independent medical examination performed by the second orthopedic doctor, defendant terminated plaintiffs chiropractic treatments.
The trial court held that defendant's termination of plaintiff’s chiropractic treatments was "unreasonable" because there was sufficient uncertainty among the three physicians so as to warrant obtaining another medical opinion, possibly from another chiropractor.
In reversing the trial court, the Court held that the independent medical examination report received by defendant "can be reasonably read and was read by the defendant's adjuster as contraindicating further payment for chiropractic treatments, thus creating a legitimate or bonafide question of factual uncertainty." In addition, the Court held that it was not necessary for the insurance company to obtain the opinion of another chiropractor before terminating payment for plaintiff’s chiropractic treatments. The Court stated, "we simply find no support for 'the trial court' assumption that it is outside the scope of an orthopedic surgeon's area of competence to evaluate plaintiffs need for further medical and/or chiropractic treatment for neck and back injuries." Analogizing to case law on medical testimony under MRE 702, the Court stated "this court has consistently held that a medical witness need not specialize in the same field or sub-field testified to by another practitioner. The test in all of these cases is not whether the witness providing the opinion practices in the same field, discipline or specialty, but rather, whether the witness had sufficient training, skill, expertise, or knowledge in the field to provide competent testimony."
Judge Shepherd dissented. He wrote that the record does not indicate that the findings of the trial court "were contrary to the great weight of the evidence." Judge Shepherd further stated that he did not read the trial court's opinion as requiring additional chiropractic testimony to support the termination of benefits. Rather, the trial court concluded that the available medical evidence was conflicting and unclear and as a result, additional medical evidence was necessary before the termination of benefits was warranted. Such a ruling was proper under the previous case of Liddell v DAIIE (item number 380). However, Judge Shepherd would remand the case back to the trial court for a recalculation of the attorney fees because "plaintiff was awarded the entire amount of attorney fees requested although it was clear that some of the hours billed were attributable to non-no-fault issues and therefore could not be assessed against defendant."
[Author's Comment: The majority's opinion is probably in conflict with the previous opinion in Liddell v DAllE (item number 380). In addition, application for leave to appeal has been filed.]
