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Analogy to Workers’ Compensation Law

Patient’s Right to Choose a Case Manager in Michigan

Although there are no Michigan appellate court cases that specifically address the use of case managers in the context of no-fault automobile insurance claims, there is an important decision that was rendered by the Michigan Court of Appeals regarding the selection and use of case managers in connection with workers’ compensation claims.

The case is Dolenga v Aetna, 185 Mich App 620 (1990), wherein the Court of Appeals considered the relationship between a workers’ compensation insurer, a case manager appointed by that insurer, the patient’s treating physician, and a rehabilitation vendor recommended by the patient’s treating physician and approved by the patient. It appears that the rehabilitation vendor involved in this case was a company offering case management type services on behalf of injured workers.

The worker’s physician referred the worker to this particular rehabilitation vendor for vocational rehabilitation services. When the case manager for the workers’ compensation insurer learned of this, she wrote a letter to the rehabilitation vendor advising the vendor that authority to work with the patient was being denied. The case manager also stated that the worker’s treating physician had no authority to make referrals for vocational rehabilitation and that the workers’ compensation insurer would make other arrangements for rehabilitation, presumably with a different vendor.

The Court of Appeals, in Dolenga, disapproved of unilateral insurer control over case managers and held that the worker should be the one who selects the rehabilitation vendor (case manager), with the workers’ compensation insurer retaining the right to petition the Workers’ Compensation Bureau for the resolution of any dispute regarding this process if the insurer objected. In this regard, the Court of Appeals stated inDolenga:

. . . While it is true that . . . an employee is entitled to receive rehabilitation services if necessary and, in fact, the employer may insist that the employee receive rehabilitation services, the fact that the act allows the employer or the employer’s insurance carrier to voluntarily offer to provide those services does not, as defendants seem to conclude, equate to the employer or carrier having the right to select the vendor of those services. Nothing in § 319 either explicitly or implicitly grants such a right to a workers’ compensation carrier. . . .

It does, however, seem reasonable to conclude that the person receiving the services, the claimant, should normally be the person who selects the vendor. If, at that point, the employer or carrier is dissatisfied with the employee’s choice of vendor, it can petition the bureau for a resolution of the dispute under MCL 418.319(2) . . . . Both defendant Aetna and defendant Shankin (the case manager) misapprehend the role and authority of the compensation carrier in providing these benefits. That role is to pay for the treatment, not provide it.Ultimately, since it is the claimant who receives the medical treatment or rehabilitation services, it ought normally to be the claimant who chooses the provider of those services,subject to the dispute resolution procedures under the act if the claimant’s choice is objectively unreasonable. Plaintiffs are correct to the extent that they point out that § 315 at least implicitly recognizes that it is the worker’s choice of whom to utilize for the providing of services, not that of the employer or carrier. . . .

For the above reasons, we conclude that neither an employer nor a compensation carrier has the right to unilaterally reject a claimant’s choice of a rehabilitation services vendor and insist upon its own choice by way of denying authorization to the vendor selected by the claimant and referring the claimant to the carrier’s own vendor.” [Dolenga at 623, 624]

Application of Dolenga in No-Fault Cases

Even though the Dolenga decision is a workers’ compensation case, Michigan appellate courts have indicated on previous occasions that Michigan judges are permitted to analogize to the workers’ compensation statute and applicable case law for guidance and assistance regarding issues dealing with the meaning and interpretation of the Michigan No-Fault Automobile Insurance Act. See Visconti v DAIIE, 90 Mich App 477 (1979). Therefore, the Dolenga decision has relevance in the world of no-fault.

Specifically, the Dolenga decision is important for two reasons. First, it clearly suggests thatthe process of selecting a case manager is not something that should be controlled by the unilateral decision of a no-fault insurance company, particularly where the patient objects to the insurer’s selection. Therefore, if a patient agrees to case management but objects to the involvement of a particular case manager, the patient should have the right to require the selection of a different case manager.

Second, if a patient can show that case management services are otherwise reasonably necessary under Section 3107(1)(a) of the no-fault act, then the patient should have the legal right to hire his or her own case manager and submit the expenses of this case manager to the no-fault insurance company for payment as an “allowable expense” under this specific statutory section. The patient would have this right even if the no-fault insurance company unilaterally appointed a case manager of its own. Having already hired a case manager, a no-fault insurer would be hard pressed to disagree with the patient’s contention that case management services are “reasonably necessary.”

The conclusion that patients have the right to select and hire case managers and recover the costs is supported by the language of Section 3107(1)(a) and the decision in Dolenga, supra.

Further support for this proposition is suggested by the Court of Appeals decision in McKelvie v Auto Club, 208 Mich App 331 (1994). This is a no-fault case wherein the Court of Appeals upheld an award of penalty attorney fees for the failure of a no-fault insurer to pay for certain rehabilitation services that appeared to be in the nature of “case manager services” and which were provided by Professional Rehabilitation Associates, the same vendor involved in the Dolenga case.

Moreover, it should be remembered that Michigan appellate courts have, on several occasions, expressed the principle that the no-fault act “is remedial in nature and must be liberally construed in favor of persons intended to benefit thereby.” See Reed v Citizens, 198 Mich App 443, 451 (1993).