United States District Court, Eastern District of Michigan; Case #13-12679
Hon. Linda V. Parker
Official Michigan Reporter Citation: Not Applicable; Opinion Not Available 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this written Opinion involving a driver who was injured in an accident during the scope of her employment, Judge Linda Parker ruled the driver’s no-fault insurer was responsible for paying attendant-care expenses under MCL 500.3107(1)(a) that were not already paid by the workers’ compensation insurer, pursuant to the directives in Mathis v Interstate Motor Freight Sys., 408 Mich 164 (1980).
Plaintiff was in an accident and suffered a comminuted fracture at the base of her first metatarsal bone. It was undisputed that plaintiff was traveling in the course and scope of her employment when the accident occurred. Plaintiff filed a workers’ comp claim with her employer’s workers’ comp carrier, and also filed a no-fault claim with defendant. Plaintiff’s attendant-care services after the accident totaled $68,400. The workers’ comp insurer allegedly paid $11,000 and then terminated benefits, determining plaintiff could return to work. Plaintiff brought an action against defendant for the remaining attendant-care costs. Defendant argued it was not liable for these costs because plaintiff was not responsible for the difference between the amount the attendant-care services company had billed and the amount the workers’ comp insurer had paid, as those were not charges incurred for purposes of §3107(1).
Judge Parker denied defendant’s motion for summary judgment, noting that the Michigan Court of Appeals in Bombalski v Auto Club Ins Ass’n, 247 Mich App 536 (2001) interpreted the word “incurred” to mean “only those charges which the insured is responsible or legally obligated to pay the provider.” According to Judge Parker, defendant asserted that Bombalski barred plaintiff’s claim because: 1) the workers’ comp insurer paid the attendant-care services provider all that it was entitled to receive under workers’ comp laws, and 2) state regulations prohibited the provider from billing plaintiff for a greater amount.
Finding that Bombalski was inapplicable to this case, Judge Parker said:
“First, there is no evidence that Accident Funds’ payment to [the attendant-care services provider] was made in full satisfaction of the amount billed. In other words, the payment was not akin to the reduced payments health insurance companies negotiate with providers that were at issue in Bombalski. … Second, although the Michigan legislature has chosen to limit the benefit available for attendant care provided by certain family members under the Worker’s Compensation Act, the Michigan Court of Appeals has held that the same limitation does not apply to the injured’s no-fault carrier. …Thus while the amount owed by the no-fault carrier must be offset by the coverage provided under the Worker’s Compensation Act … the no-fault carrier’s liability is not limited by coverage restrictions in that statute.”
Regarding defendant’s argument against balance billing, Judge Parker said defendant did not offer any evidence to show that the balance billing prohibition in the workers’ comp laws (Rule 418.10105) applies where other insurance provides coverage. The judge said:
“If Defendant was correct, workers’ compensation would be the exclusive remedy available to an individual injured on the job while occupying a motor vehicle. However, the Michigan Supreme Court has expressly rejected this interpretation of the Workers’ Compensation Act and No-Fault Act. Mathis v. Interstate Motor Freight Sys., 408 Mich. 164, 289 N.W.2d 708, 713-14 (1980). Instead, the Court has held: ‘The responsibility for workers’ compensation benefits rests first on the employer or workers’ compensation insurer, and the amount of that payment is to be deducted from the liability of the personal protection insurance carrier.’”
Relying on the Michigan Supreme Court’s ruling in Mathis, Judge Parker said that plaintiff was entitled to the attendant-care benefits billed by the services provider in excess of the amount that workers’ comp had paid.
In conclusion, Judge Parker stated:
“If it is subsequently determined in Plaintiff’s worker’s compensation case that Accident Fund is required to pay more towards Ava Care’s charges, Plaintiff may be required to reimburse Defendant for that amount. However, Defendant may not delay payments pending that determination.”
