August 08, 2011
The issue of reimbursement for chiropractic services under the no-fault act continues to be a “trigger point” of controversy among both providers and insurers. In Zigmond Chiropractic P.C. v Auto Club Ins Ass’n, an unpublished opinion of the Court of Appeals, decided July 12, 2011 (Docket No. 295574), the court again examined this contentious issue. In its holding, the Zigmond court stated that the fact that an activity is excluded from the statutory scope of chiropractic practice does not automatically mean that the activity is unlawful and, therefore, not subject to payment as a no-fault benefit. (See also Hoffman v Auto Club Ins Ass’n, 211 Mich App 55 (1995)). Rather, an activity can be outside the scope of chiropractic practice and still be reimbursable as long as it is not unlawful and the charges amount to an allowable expense under MCL 500.3107.
Chiropractor Zigmond was a chiropractor who, in addition to spinal manipulation, performed hot pack therapy, mechanical traction therapy, therapeutic exercises, massage therapy, myofascial release, neuromuscular reeducation, and kinetic activities. Defendant argued that the services were beyond the scope of chiropractic practice and within the scope of professions in which Chiropractor Zigmond was not licensed and therefore, not payable as no-fault benefits.
In examining the matter, the Court of Appeals started by noting that the scope of chiropractic practice was defined by the public health code, MCL 331.1101 et seq., and MCL 333.16401, which focus primarily on the manipulation of the spine and specifically exclude surgical procedures and the prescription of drugs or medicine. The trial court dismissed plaintiff’s claims for reimbursement, finding that the services provided were outside the scope of chiropractic services and, therefore, not compensable because Chiropractor Zigmond was not licensed to perform them. In reversing the trial court, the court of appeals explained that, under Hoffman, even 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 is not unlawful, as, for example, the unlicensed practice of medicine or physical therapy.
After restating the law, the court examined the services by category to determine whether they were “unlawful” and not compensable.
Even if they assumed that the use of hot packs was outside the course of chiropractic practice, the court concluded that it was not unlawful for a chiropractor to use them.
Mechanical Traction Therapy
Citing Hoffman, the court stated that mechanical traction is within the scope of chiropractic practice when used for purposes of correcting a “subluxation or misalignment,” though not when used for “therapeutic treatment purposes.” Chiropractor Zigmond stated that the purpose of the traction was to “stretch the spine.” Based on that, the court found that there was a question of fact as to whether the “stretching” was to correct a subluxation or misalignment and, therefore, the trial court could not conclude, as a matter of law, that the use of traction was unlawful.
Therapeutic Exercises, Neuromuscular Reeducation, and Kinetic Activities
For therapeutic exercises, Chiropractor Zigmond had his patients riding a stationary bike or using a “muscle strengthening machine” involving both arm and leg movement. Chiropractor Zigmond indicated that chiropractors use stationary bikes for the sacroiliac joint. Neuromuscular reeducation was described by Chiropractor Zigmond as, “using a large exercise ball to work on posture.” Finally, Kinetic activities were described as movements to increase the patient’s range of motion or to control and train the muscles of the back while seated on the exercise ball.
According to the court, all of these activities fell within the scope of chiropractic practice because the statute defined “rehabilitative exercise” broadly to include “the use of exercise … for the purpose of correcting or preventing a subluxated or misaligned vertebrae.”
Massage Therapy and Myofascial Release
Finally, Chiropractor Zigmond treated his patients with massage therapy, either hands on or with a handheld machine, and myofascial release. The court noted that further factual development could establish that the treatments were within the scope of chiropractic care which referenced adjustment of spinal subluxations or misalignments or “related tissues.” However, even if they were to assume that the treatments were outside the scope of chiropractic practice, the only way they could be unlawful, would be if they amounted to the unlicensed practice of massage therapy. In that regard, the court noted that the license requirements for massage therapy were not enacted until after the services were provided by Chiropractor Zigmond and therefore, could not have been unlawful at the time they were provided.
In ruling that services provided by a chiropractor that are outside the scope of chiropractic care are not automatically unlawful, the court has expanded the category of reimbursable activities for chiropractors. Under Zigmond, we see that it will be possible for chiropractors to be reimbursed for hot packs, certain limited types of “exercises” and “mechanical traction” as long as they relate it to “correcting or preventing a subluxation or misalignment of vertebrae or “related tissues.” Also, depending on when the services were provided, chiropractors may be able to seek reimbursement for “massage therapy.” If the services were provided after January 9, 2009, when the license requirements were enacted for massage therapy, it could be argued that a chiropractor cannot provide massage therapy without being licensed or it would be unlawful and not reimbursable. On remand, the court of appeals indicated that plaintiff still must establish that its charges amounted to allowable expenses under the no-fault act.
JAMES L. BORIN AND L. LADD CULBERTSON JOIN COUNCIL ON LITIGATION MANAGEMENT
Garan Lucow Miller P.C., is pleased to announce that James L. Borin and L. Ladd Culbertson have been invited to join the prestigious Council on Litigation Management. The Council is a nonpartisan alliance comprised of thousands of insurance companies, corporations, Corporate Counsel, Litigation and Risk Managers, claims professionals and attorneys. Through education and collaboration the organization’s goals are to create a common interest in the representation by firms of companies, and to promote and further the highest standards of litigation management in pursuit of client defense. Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows.
James L. Borin is a shareholder in the Firm’s Troy office and is the author of The Michigan Automobile No-Fault Manual as well as a frequent lecturer for ICLE and other educational organizations. Mr. Borin has been named as one of the “Best Lawyers in America” from 2001 through the present as well as “Super Lawyer” since 2006. Jim is also listed as a preeminent attorney in Martindale-Hubbell with an AV rating.
L. Ladd Culbertson is a shareholder in the Grand Rapids office. Mr. Culbertson’s practice area covers a broad spectrum of law, including, Criminal Defense, Insurance Coverage and Defense, Automobile No-Fault, and Commercial Transportation & Logistics.
Mr. Culbertson has written and lectured on numerous topics including Criminal Defense in Trucking and Insurance cases, Criminal Restitution and Insurance, No-Fault Insurance Coverage in Trucking cases, Rapid Response Accident Investigation, MCS-90 and Financial Responsibility.
CHERRY-ROUBAIX BICYCLE RACE
The 4th Annual Cherry-Roubaix bicycle race, sponsored by Garan Lucow Miller, P.C., will be held from August 12th through the 14th, 2011, on the streets of Traverse City, Michigan and neighboring Leelanau County, and will feature the 2011 State Road Race Championships. There will also be a charity fun ride out Old Mission Peninsula. Please see the event website at www.cherry-roubaix.com for more details.
Please mark your calendars to join us at this exciting event. Garan Lucow Miller will be hosting special VIP viewing areas at each race, please advise Peter Worden, in our Traverse City office at (231) 941-1611 or email@example.com, if you will be available to join in the festivities.
GLM ANNUAL GOLF OUTING CLIENT INVITATIONAL
EVENT: Garan Lucow Miller’s Annual Golf Outing
DATE: Tuesday, August 23, 2011
VENUE: Forest Akers West Golf course on the campus of MSU
Banquet dinner to be on campus at the University Club
RSVP to Eileen Carty at firstname.lastname@example.org
BASICS OF NO-FAULT
Jim Borin will be teaching the Fundamentals of No-Fault (PIP) course on Monday evenings from September 12 through November 7, 2011. The classes will be held at the Lexington Hotel, 925 S. Creyts Road, Lansing, Michigan 48192 from 6:00 to 8:30 p.m. Please contact Denise Tedder at email@example.com to register, or call at (800)875-7600.
The Troy Breakfast Seminar will be held on Thursday October 27, 2011 at the Troy Marriott.
Please watch Law Fax for further information.