Michigan Court of Appeals; Docket # 324378; Unpublished
Judges Talbot, Hoekstra, and Shapiro; 2-1 (Judge Shapiro concurring); Non-unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to concurrence 
STATUTORY INDEXING:
Allowable Expenses: Reasonable Necessity Requirement [§3107(1)(a)]
Lawfully Rendered Treatment [§3157]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam Opinion involving payment for massage therapy services that plaintiff rendered to various injured individuals, the Court of Appeals held that State Farm was properly granted summary disposition on plaintiff's claims for reimbursement, because the massage therapy services were not "legally rendered" pursuant to MCL 500.3157 since none of the providers had a valid license. As a result, the Court held that the services were not reasonably necessary under MCL 500.3107.
Plaintiff provided massage therapy services to numerous individuals injured in auto accidents. Defendant State Farm provided the individuals no-fault insurance coverage. Plaintiff brought this action, seeking payment from State Farm for the massage therapy services it had provided to State Farm's insureds. State Farm moved for summary disposition, claiming the services were not "lawfully rendered" within the meaning of §3157, because the providers did not have valid massage therapy licenses under MCL 333.17959 (Public Health Code) and, as a result, the services were not reasonably necessary under §3107. The trial court granted summary disposition for State Farm.
The Court of Appeals affirmed, rejecting plaintiff's claim that because there was no massage therapy licensing requirement in place when the services were rendered, the services were lawfully provided and compensable under §3107.
In this regard, the Court of Appeals examined the Public Health Code and said it unambiguously indicates that licensing is mandatory, which means that to lawfully render massage therapy services, a provider must comply with the licensing requirements. According to the Court:
"[A]t the time the massage therapy services at issue in this case were rendered in 2013, by statute, Michigan required individuals to obtain a license before practicing massage therapy. There is no dispute in this case that none of the providers were licensed massage therapists when they provided services in 2013. Consequently, the services were not lawfully provided insofar as the therapy was performed without the massage therapy license required by MCL 333.17957(1)."
The Court of Appeals continued by reviewing Mich Admin Code R 338.703, which was promulgated in 2012 and states: "Effective 2 years from the effective date of this rule... and in accordance with MCL 333.17959(3) of the code, any individual who intends to practice as a massage therapist in Michigan shall possess a Michigan license to practice in this state." Rule 338.703 is not a blanket extension of the licensing requirement for all would-be massage therapists, the Court said, but is a "grandfathering provision" relevant only to persons who meet the requirements of MCL 333.17959(3). According to the Court, Rule 338.703 applies to practicing massage therapists who are seeking a license under MCL 333.17959(3), and plaintiff neither alleged nor offered evidence that its providers would qualify to apply for a license under MCL 333.17959(3).
Based on this, the Court of Appeals said MCL 333.17959(3) and Rule 338.703 were inapplicable and did not render the unlicensed services lawful. The Court said:
"In sum, because neither plaintiff nor its providers were licensed to provide massage therapy services at the time the services were rendered, the massage therapy services were not lawfully rendered and, therefore, these were not compensable services under the no-fault act."
Judge Shapiro, in a separate concurring opinion, said the majority's analysis was "absurd," insofar as it suggested that to lawfully practice massage therapy, it was necessary to obtain a state license when, for several years, there was no means to obtain such a license. The judge concluded:
"It is undisputed that in this case massage licenses were available by the time the services in question were provided and that they could have been obtained by the relevant providers."
