Thomson v. Detroit Automobile Inter-Insurance Exchange

350 N.W.2d 261, 133 Mich. App. 375
CourtMichigan Court of Appeals
DecidedApril 2, 1984
DocketDocket 64820
StatusPublished
Cited by9 cases

This text of 350 N.W.2d 261 (Thomson v. Detroit Automobile Inter-Insurance Exchange) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomson v. Detroit Automobile Inter-Insurance Exchange, 350 N.W.2d 261, 133 Mich. App. 375 (Mich. Ct. App. 1984).

Opinions

M. J. Kelly, P.J.

In this case, we are asked to evaluate the reasonableness of defendant insurer’s refusal to pay plaintiff insured’s medical bills incurred after November 14, 1980, thus determining whether plaintiff may recover attorney fees under MCL 500.3148; MSA 24.13148. The facts are contained in Judge Shepherd’s dissent, and supplemented slightly in the discussion which follows. We reverse the trial court’s attorney fee award as we find that defendant’s refusal to pay personal [380]*380protection benefits was reasonable under the facts of this case.

Plaintiff was involved in an automobile accident on January 23, 1979. Following treatment with an orthopedic surgeon, Dr. George Fuksa, plaintiff underwent 39 chiropractic treatments with Dr. Cyril Hackett between July 26, 1979, and October 2, 1979. At the end of those treatments, Dr. Hackett concluded in a report to the defendant that plaintiff had made "good progress”. After plaintiff received 39 additional chiropractic treatments, the defendant’s adjuster wrote to Dr. Hackett:

"I am concerned with Mrs. Thomson’s progress and do not fully understand why after seventy-eight treatments, she still continues to require treatment with such regularity.
"Your report of November 14, 1979, presented a picture of a lady well on her way to recovery. Six months later, after 29 treatments, she is 'down’ to one treatment a week.
"I’m sure that you are convinced that a complete correction is possible and even likely.
"I’m also sure that the company will require an independent medical examination in the very near future, in order to justify the continuing payment of your bills.”

On August 14, 1980, plaintiff was examined at defendant’s request by Dr. John DeBruin, a board certified orthopedic surgeon, who opined that plaintiff had no objective symptomatology and that, although she complained of tightness and stiffness, he could find no objective support to explain her symptoms. Dr. DeBruin suggested malingering and exaggeration on the part of plaintiff. Based on Dr. DeBruin’s report, as well as on Dr. Fuksa’s earlier report releasing plaintiff from treatment and on Dr. Fuksa’s October 30, 1979, [381]*381report finding no need for further treatment, defendant, on November 14, 1980, declined to make any further payments for treatments received by plaintiff from Dr. Hackett.

Because this appeal is solely from the attorney fee award, we must focus on the reasons stated on the record by the trial court for finding defendant’s refusal to continue payments unreasonable and determine whether we are left with a definite and firm conviction that a different result would have been reached had we sat in the position of the trial court. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976); Precopio v Detroit, 415 Mich 457, 462; 330 NW2d 802 (1982). In concluding that the defendant had unreasonably refused to continue to pay plaintiff’s chiropractic bills in the face of Dr. DeBruin’s medical opinion contraindicating such further chiropractic manipulation, the trial court stated:

"The court believes under the circumstances of this case that the insurer defendant was wrong, and that their refusal was an unreasonable one. The court believes they should have made a more concerted effort to make a proper determination of whether or not Dr. Hackett’s services were appropriately performed prior to unilaterally, let us say, cutting off of [sic] the lady’s payment to the lady’s doctor.
"In the court’s opinion they had means available to them of a more reasonable nature prior to their termination of these benefits. And even taking that into account, the examining doctor, Dr. DeBruin’s examination of her, and the basis for cutting off the benefit, the court is of such a belief that is appropriate, too, in view of Dr. DeBruin’s finding. He did not find any objective injury. He found that she was suffering from some subjective symptoms, and that her symptoms were consistent with the injury she received, and that he would have treated her for the injuries she received.”

[382]*382After the court was informed or reminded that the benefits were suspended only after an independent medical evaluation was obtained from Dr. DeBruin, the court amended its opinion as follows:

"I think I meant to say that they should have — they should have under the circumstances — let me clarify that so there is no confusion.
"Based upon Dr. DeBruin’s report I think it would have been advisable and reasonable for the insurer to seek another examination if they wanted — wanted to cut off the support. I think that’s my point, I wish to make, is that it would have been better for them based upon what Dr. DeBruin said.
"I think now based upon what he said the insurer would have been — would have been wiser for the insurer to seek another examination, because based upon what he said I don’t think it was — that was adequate finding for them to terminate payment to Dr. Hackett.
"I think that is what I meant to convey. Perhaps I wasn’t as lucid or erudite as I should have been. This is just kind of an off-the-cuff pronouncement here.
"Well, I think that points up very accurately why the insurer should have sought to have information from another chiropractor, if it’s within the chiropractic discipline on objective findings which cannot be determined by the medical profession; that I think it would have been wise for the insurer to check out those, Dr. Hackett’s objective findings with another chiropractor. That would have been one course they could have taken.”

As we read the trial court’s somewhat labored pronouncements, two messages are conveyed. First, the trial court indicates that Dr. DeBruin’s medical report cannot reasonably be read as contraindicating further medical treatment for plaintiff. Second, the court concludes that even if the [383]*383report did contraindicate further medical treatment, the doctor was probably outside the scope of an orthopedic surgeon’s area of competence in evaluating the need for further chiropractic manipulation. Finally, the trial judge concluded that because of this difference the defendant should have obtained a second independent report from another chiropractor before terminating plaintiff’s benefits.

We believe the trial court’s findings are clearly erroneous. We find that the report can be reasonably read and was read by the defendant’s adjuster as contraindicating further payment for chiropractic treatments, thus creating a legitimate or bona fide question of factual uncertainty. Aetna Casualty & Surety Co v Starkey, 116 Mich App 640, 647; 323 NW2d 325 (1982), lv den 417 Mich 929 (1983).

More importantly, however, we believe that the trial court erred in concluding that it was necessary for the defendant to obtain the opinion of another chiropractor before terminating payment for plaintiff’s chiropractic treatments. We simply find no support for his assumption that it is outside the scope of an orthopedic surgeon’s area of competence to evaluate plaintiff’s need for further medical and/or chiropractic treatment for neck and back injuries.

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Thomson v. Detroit Automobile Inter-Insurance Exchange
350 N.W.2d 261 (Michigan Court of Appeals, 1984)

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Bluebook (online)
350 N.W.2d 261, 133 Mich. App. 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomson-v-detroit-automobile-inter-insurance-exchange-michctapp-1984.