Logo      Miller & Tischler, P.C.   28470 W. 13 Mile Rd. Ste. 300
Farmington Hills, MI 48334
(248) 945-1040  

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No-Fault News
Fall 2012

28470 W. 13 MIle Rd. Ste. 300
Farmington Hills, MI 48334
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Dear Friends,


 We hope your summer has been glorious and your vacation and travels safe.  When we last wrote to you in June, we told you that the beginning of the second quarter of 2012 had been very busy in the legal arena.  The last few months were just as busy with the Michigan Supreme Court further chipping away at your rights to seek redress if you are injured in car accidents, or on the premises of a business.  These are dark days for injured persons in our state.  However, we have the opportunity to return some fairness and integrity to our highest court this fall.  Read on to see how you can help.   


Wayne, Ronni, Maureen and Mark



Firm News
We have moved! 
Please note our new address: 
28470 W. 13 Mile Rd., Ste. 300 
Farmington Hills, MI 48334 
(248) 945-1040 Phone 
(248) 536-5042 fax



Wayne Miller spoke at the Garan Lucow Breakfast Seminar on August 30th.
Wayne Miller will be the co-moderator at the MAJ No-Fault Institute on September 20-21, 2012.  Maureen Kinsella will be speaking at the MAJ No-Fault Institute as well.

Wayne Miller will be speaking at the ICLE No-Fault update on October 11, 2012.






In April 2012, Governor Snyder signed into law a repeal of Michigan's mandatory motorcycle helmet law. Motorcycle riders are now required to have a higher level of motorcycle medical coverage. HOWEVER, the failure to have the HIGHER level of motorcycle coverage DOES NOT by itself disqualify motorcycle operators who are injured in motor vehicle accidents from obtaining No-Fault benefits. As long as the motorcycle operator has the motorcycle insurance required by the No-Fault Law (not the additional insurance required by the new helmet law), the failure to have the insurance required by the helmet law will not act to disqualify the motorcycle operator.   




"Mini Tort" Increased to $1,000: Under the No-Fault Law, the ability to sue for collision damage was abolished. The narrow exception is called "mini-tort". Under "mini tort", the victim of collision damage can sue the at-fault driver for the uninsured portion (i.e., the deductible) of the damage, up to $500. The No-Fault Law was amended on June 7, 2012 to increase the mini tort limit from $500 to $1,000. The law also provides that mini-tort damages cannot be assessed if the damaged vehicle was being operated without the required insurance coverage.  









ATTENTION ALL CARE GIVERS:  Supreme Court reiterates important rules regarding reimbursement for your services in Douglas v Allstate


A major new decision from the Supreme Court reinforces and builds on a decision from 2008, Burress v Allstate.  In Douglas v Allstate, the trial court awarded the plaintiff's wife $40/hour for attendant care services.  She did not maintain logs or notes at the time services were provided but rather testified in the lawsuit about services provided years earlier.  The Supreme Court overturned the award and sent the case back to the trial court ordering the court to determine whether a charge for allowable expenses was actually incurred.


So, whether you are a Case Manager, Guardian, Conservator or family-attendant care provider, there are several take-a-ways for you from this recent decision:


1.         Care givers must charge.  This means you must expect payment and not provide your service free of charge.  If you wish to be paid by the insurance company, do not provide your services gratuitously to the insured.  We know that many Case Managers and others utilize contracts with their clients.  In light of Douglas, it is wise to continue that practice and have an expectation of payment.    


2.         Document, document, document.  The Supreme Court in Douglas places great emphasis on contemporaneous documentation.  Whether by log, daily note or report, the best proof that services were provided and a charge incurred will be contemporaneously created records of your services providing the nature and amount of your services.  Timely submission of these records to the insurance company for payment is critical.    


3.         Agency Rate vs Aide Rate.  A question long contemplated by many is whether the proper comparison for in-home attendant care is agency rate or aide rate.  And the decision is . . . aide rate.  According to Douglas, agency rates are not the appropriate rate for comparison when considering the reasonable charge for family-provided attendant care.  The Supreme Court in Douglas stated that the institution or agency rate is "entirely inconsistent with the evidence of an individual's rate of compensation."     


As always, should you have questions about this or any case, please call our office for specific advice and counsel.   

One of the major disqualifications under the No-Fault Law is for those who have stolen the car in which they were injured. In 1992, in the case of Priesman v. Meridian Mutual, the Supreme Court held that the Legislature did not intend that a family member's unauthorized use, i.e., "joy ride", of a family car would be considered an "unlawful taking." This doctrine survived for 20 years, but is now overruled in the case of Spectrum Health Hospitals v Farm Bureau (2012). Under Spectrum Health, any person (family member or ortherwise) who unlawfully takes a car will be disqualified from No-Fault benefits. The sole possible remaining exception is if the injury person had a "reasonable belief" that they were entitled to "take and use" the car. This exception is in the statutory language of the No-Fault Law.  



In perhaps the worst of all the cases, the Supreme Court overruled the 2010 Regents decision and reinstated the 2006 Cameron decision. In Joseph v AAA, the Supreme Court held that the statute of limitations protections for minors and incompetents does not apply to the No-Fault 1 year back rule. This decision rests on the creative but malignant reasoning that the 1 year back rule is not a statute of limitations at all, but is rather a "limitation on damages." It is this type of intellectual "flexibility" that requires removal of the majority justices and replacement with the challengers mentioned below.





NOVEMBER 6, 2012


            As you know, the current Michigan Supreme Court has issued scores of legal decisions over the past decade that favor the insurance industry, corporations and business interests over and over again to the detriment of your individual rights.   A review of the last decade of Michigan Supreme Court opinions reveals several things: the consistent biases of the majority justices, their uncalled for vicious personal attacks on the minority justices who disagree with them and most of all their disdain for injured people.  Indeed, a 2008 study by The Law School of the University of Chicago ranked the Michigan Supreme Court the lowest in independence (impartiality) among the 52 highest courts in the country. The study defined independence as "the judge's ability to withstand partisan pressures, or disinclination to indulge partisan preferences when deciding cases." fn1  The majority's lack of professionalism and their ideological partisanship is an embarrassment to the people of this great state. We deserve better.


            On November 6 we are going to have the chance to right this imbalance.  As you know, the Michigan Supreme Court Justices are elected by Michigan citizens.  This year the seats held by Justices Stephen J. Markman and Brian K. Zahra are up for election.   Justice Marilyn Kelly has reached the mandatory retirement age, so there will be three seats to be filled this election year.  We are supporting three very dynamic candidates to replace these justices.  These are:  Judge Shelia Johnson (Southfield District Court) at www.judgesheliajohnson.com; Judge Connie Marie Kelly (Wayne County Circuit Court) at www.conniekellyforjustice.com; and Dean (and Law Professor) Bridget McCormick (The University of Michigan Law School) at www.mccormackforjustice.com.   These candidates promise to bring transparency, less partisan politics and more balance to the court.  They will work tirelessly to protect us, our children and our communities.


            We urge you to go to their websites and their facebook pages to learn more about them.  We ask you to join with us in asking your friends, families and neighbors to vote for these individuals to bring back sound legal reasoning and true justice to our highest court.



FN1. Stephen J. Choi, Mitu Gulati and Eric A. Posner, Which States have the Best (and Worst) High Courts?, John M. Olin Law & Economics Working Paper No. 405, 2008, The Law School The University of Chicago








Corvel (a third party administrator that some auto insurance carriers are working with) recently told a medical office (apparently as of May 2012) that they will no longer reimburse for therapy sessions with durations of greater than 1 hour.   We believe this is inconsistent with the No-Fault Act, and have the following thoughts:


MCL 500.3107 of the Michigan No-Fault Act states that personal protection insurance benefits are payable for: (a) allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery or rehabilitation.


If Corvel is denying reimbursement for therapy sessions with durations of greater than one hour, they must be taking the position that therapy after the first hour is not reasonably necessary under MCL 500.3107.  Corvel is certainly within their rights to take such a position but to support this position they must have medical support (medical expert opinion) that therapy after the first hour is not reasonably necessary.  Of course, the medical opinion of your physicians is that the therapy after the first hour is reasonably necessary.


At this point, you should draft a letter of medical necessity to provide to the insurer(s) that denied the claim(s) at the recommendation of Corvel.  You should be as specific as possible in stating why this treatment is reasonably necessary for auto accident-related injuries. 


Although you are having a problem with Corvel, they are a TPA and your problem is really with the insurer(s) who are taking their advice and denying payment.  While you have to respond to Corvel through their appeal process, if it comes down to a lawsuit, the defendant would be the applicable auto insurer.  Remember, a lawsuit must be filed within one year of the date of service or the insurer can claim that the expense is extinguished by virtue of the statute of limitations.


If you are not successful with your appeal to Corvel, you may want to pursue a "test case" or a few "test cases" where the therapy after one hour is particularly reasonably necessary.  While a win on such a case may not establish a legally binding "precedent", it may have the practical effect of causing the insurer to stop challenging the bills.



HCFA 1500 BOX 27



A medical provider recently advised me of an interesting misinterpretation of the use of Box 27 of the HCFA 1500 form.  An auto insurance claims representative took the position that if the medical provider checks "yes" for Box 27 (which asks "Accept Assignment?"), the provider is indicating (1) that they want the payment to go to the provider and (2) they accept the amount paid as payment in full.  The claims representative then told her that if the medical provider checks "no" for Box 27, they are indicating that the payment should go to the patient.


My research revealed that when sending claims electronically, there are differences between how Box 27 is used for commercial claims versus government claims (such as Medicare). The following is a clarification of these differences:


For government claims (Medicare, CHAMPUS, etc.): Box 27 has two meanings: (1) It indicates who is to receive payment.  "Yes" indicates payment should go to the provider shown in Box 33.  "No" indicates payment should go to the patient; and (2) If "Yes" is checked, the provider indicated in Box 33 has agreed to accept as "payment-in-full" whatever Medicare is going to pay. No further charges are to be billed to the patient.


For commercial claims: If the physician or clinic does not have a contract with the commercial carrier, Box 27 has only one meaning-it indicates to whom payment is to be made.  Whether a "Yes" or "No" is checked, the physician can still bill the patient for unpaid balances due for services rendered.


With a commercial claim like auto insurance, you are not accepting whatever the auto insurance decides is reasonable and customary just because you have checked "yes" in box 27.  You may still balance bill the patient for the balance.


The reason that the auto insurance company is trying to promote this misinterpretation of Box 27 could be because when the patient is balance billed, it is up to the auto insurer to indemnify and hold the patient harmless for the difference.  The auto insurer must then pay an attorney if the provider sues it's insured.






 Wayne Miller recently settled a claim for survivors loss for $115,000. The case involved an 80 year old man who, though he had a variety of medical conditions, was still able to work. He was hit as a pedestrian, and suffered a fractured knee. The resulting inability to walk led to deconditioning, which aggravated all of his medical conditions. He lived for 4 months before passing. The No-Fault insurer initially took the position that the death was due to the medical conditions and not the motor vehicle injury. However, the insurer could not dispute the medical opinion evidence that we submitted. Ultimately, they paid 100% of the amount claimed, plus substantial No-Fault penalties.




"RonniI hope all is well with you.  I'm sorry it's taken me so long to get back with you, but I wanted to wait til "mission accomplished."  It was on Friday -11/11/11!  My beautiful, very high tech van made its way here, and is now in my garage.  I have to wait til tomorrow to really drive it, as I have to make it legal.  It has ALOT of bells and whistles, and is a little overwhelming.  Especially for someone like me, whose last vehicle was an '82 Chevy S10.  I was lucky to have a steering wheel!  I just want to take very good care of it, so it will last a long time.


There is a "check in the mail" for you, and I want to thank you for how reasonable your bill was.  I think you cut me a break, and I am very appreciative.  I think you're great, and so does Michelle.


I sent a letter to my state Rep re: the proposed changes to our MI No-Fault laws.  I really can't see even this Republican controlled state govt. changing the law that few Michiganders really want changed.  Alot of jobs are at stake, as well as the fact that without our no fault coverage, many of us will end up on Medicaid.  I don't see the state wanting that burden.


Anyway...I've got my wheels, and your assistance made it possible."


About Our Law Firm


Miller & Tischler, P.C.,  represents survivors of catastrophic brain and spinal injuries, their families and their professional service providers who are having difficulty pursuing their entitlement to receive No-Fault benefits for injuries sustained in motor vehicle accidents.  We help our clients understand how their No-Fault insurance may coordinate with other kinds of insurances they have whether it be private health insurance, Medicaid, Medicare, Workers' Compensation, or Veterans benefits. We also assist our clients in learning about and obtaining all of the benefits to which they are entitled, whether they be individuals or service providers.


Let Us Help You.