• PIP Benefit #1: Allowable Expense (Medical Benefits)
• PIP Benefit #2: Work Loss Benefits
• PIP Benefit #3: Replacement Service Expenses
• PIP Benefit #4: Survivor’s Loss Benefits

 

PIP Benefit #1: Allowable Expense (Medical Benefits)

The Michigan No-Fault Law has the broadest and most generous medical-expense and patient-care provisions of any No-Fault Act in the country. Subsection 3107(1)(a) states that an injured person is entitled to recover “allowable expenses” consisting of: “All reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation.” The statute contains no further definitions of the scope and extent of these “allowable expenses.” It is clear, however, that these benefits are payable for life and are payable without regard to any “cap” or “ceiling.” In other words, the allowable expense benefit is a benefit that is unlimited in amount and duration. Various court decisions have established that these benefits include a wide variety of products and services.

 

1. The Scope of Allowable Expenses

Medical Expenses — Under the Act, all reasonable charges for reasonably necessary hospital expenses, physician charges, prescriptions, medical equipment, prosthetic devices, chiropractic treatment, psychological services, in-home care, and other related expenses are compensable as an allowable expense.

 

In-Home Attendant Care or Nursing Services — The Act uses the word “services,” which the courts have interpreted to include unskilled and skilled in-home attendant care and nursing services. As with any allowable expense, these services must be “reasonably necessary” and the amount claimed must be a “reasonable charge.” As long as these requirements are established, court decisions have made it clear that in-home attendant care and nursing services rendered by family, friends, and neighbors of the injured person are compensable under the Act. In addition, the injured person has a right to hire a commercial in-home health care agency to render these services either in lieu of, or to supplement, family-provided attendant care. See Manley v DAIIE, 425 Mich 140 (1986); Sharp v Preferred Risk Mutual Ins Co, 142 Mich App 499 (1985); VanMarter v American Fidelity Fire Ins Co, 114 Mich App 171 (1982); and Visconti v DAIIE, 90 Mich App 477 (1979). The in-home attendant care benefit is very important for seriously injured auto-accident victims and their families. It enables them to hire outside help or employ family members so that the injured person can remain at home rather than be institutionalized. Attendant care covers a wide range of “hands on services,” including bathing, dressing, feeding, personal assistance, meal preparation, personal hygiene, transportation to medical care, administration of medications, overseeing in-home therapies, etc. In addition, the court decisions have made it clear that attendant care benefits go beyond “hands on care” and include the monitoring and supervision of the patient. The central issue in many of these cases is simply whether the patient can be left alone at any time during a 24-hour day. If not, then attendant care benefits are likely payable for any period of time during which the injured person requires someone to be in attendance.

 

Family-provided attendant care claims frequently result in disputes with no-fault insurers. These disputes typically involve two major issues: (1) How many hours of attendant care are “reasonably necessary”? and (2) What hourly or per diem rate is a “reasonable charge”? The statute does not specifically or definitively address these issues and neither does any appellate-court decision. Therefore, each case is evaluated on its own merits. Regarding the reasonableness of the charges, there are court decisions that hold it is appropriate to consider commercial rates charged by professional agencies for similar services. In Sharp v Preferred Risk Mutual Ins Co, 142 Mich App 499 (1985), the Court of Appeals stated, “comparison to rates charged by institutions provides a valid method for determining whether the amount of an expense was reasonable and for placing a value on comparable services performed [by family members].” Pursuant to this concept, claims for family-provided attendant care are frequently based upon the commercial rate that would be charged by a professional agency rendering the same services. However, no-fault insurance companies rarely voluntarily pay attendant care claims at the commercial rate, arguing that the hourly rate earned by the agency employee is a better indicator of the reasonable value of the services. Therefore, there are frequent disagreements between claimants and insurance companies regarding the reasonable value of family-provided attendant care. In addition, insurers often dispute the amount of hours that are reasonably necessary for a patient’s care. Therefore, these two issues, hours and rates, require careful thought and documentation.

 

It is also important to point out that, as with all allowable expenses, claims for family-provided attendant care are subject to the “incurred” requirement. In order for an expense to be deemed “incurred,” it must either be paid by or on behalf of the patient or the patient must become liable or obligated to pay the expense. Recently, the Michigan Supreme Court held that in cases involving family-provided attendant care, the care giver must have an expectation of being compensated for rendering attendant care rather than simply providing the care out of a sense of obligation, duty, commitment, loyalty, or compassion. See Burris v Allstate, 480 Mich 1081 (2008). Therefore, those persons rendering attendant care to family members must be very clear that they are providing the attendant care with the full expectation of being paid in accordance with the provisions of the Michigan No-Fault Act.

 

It is also important to point out that, as with all allowable expenses, claims for family-provided attendant care are subject to the “incurred” requirement. In order for an expense to be deemed “incurred,” it must either be paid by or on behalf of the patient or the patient must become liable or obligated to pay the expense. Recently, the Michigan Supreme Court held that in cases involving family-provided attendant care, the care giver must have an expectation of being compensated for rendering attendant care rather than simply providing the care out of a sense of obligation, duty, commitment, loyalty, or compassion. See Burris v Allstate, 480 Mich 1081 (2008). Therefore, those persons rendering attendant care to family members must be very clear that they are providing the attendant care with the full expectation of being paid in accordance with the provisions of the Michigan No-Fault Act.

 

Accommodations — The Act also uses the word “accommodations” in describing the allowable expense benefit. The courts have held that this term obligates an insurance company to pay for renovations to make a home or apartment handicap accessible or, if necessary, to build a new residence for catastrophically injured persons where their prior residence cannot be reasonably adapted to provide for the injured person’s care, recovery, or rehabilitation. In this regard, the Michigan Court of Appeals has held: “As long as housing larger and better equipped is required for the injured person than would be required if he were not injured, the full cost is an ‘allowable expense.’” See Sharp v Preferred Risk Mutual Ins Co, supra. If an insurance company builds a new home for a catastrophically injured child, the courts may permit the insurance company or a court-appointed trustee to hold legal title to all or a portion of the home, depending on the details of the case. See Kitchen v State Farm Ins Co, 202 Mich App 55 (1993). However, in Williams v AAA Michigan, 250 Mich App 249 (2002), the Court of Appeals held that when a no-fault insurance company builds a home for a catastrophically injured adult and the adult is willing to contribute the equity in their existing home toward the construction of the new home, then the injured adult is entitled to full legal ownership of the newly constructed residence. Where the new home is fully titled in the name of the injured person, the courts have, in some circumstances, permitted the insurance company who paid for the home to have a security interest in the property for a reasonable period of time so that the insurer’s investment can be recouped and transferred to another home should the patient need to move in the future. See Payne v Farm Bureau, 263 Mich App 521 (2004). In addition to the cost of a residence, accommodation claims also involve issues as to whether insurance companies are obligated to pay the ongoing expenses related to home ownership, such as property taxes, homeowners insurance, maintenance expenses, utilities, etc. In addition, issues arise as to whether the family members of the injured person residing in the home are obligated to contribute to the expense of constructing and maintaining the residence as a form of “rent” for being able to live there. Clearly, enforcing the right to the accommodation benefit can be a complicated matter that involves the resolution of many issues that can have long-term implications for severely injured people.

 

Room and Board Expenses — In 1993 the Court of Appeals held that room and board expenses for a severely injured person cared for at home are compensable under Subsection 3107(1)(a) where the “injured person is unable to care for himself and would be institutionalized were a family member not willing to provide home care.” See Reed v Citizens Ins Co of America, 198 Mich App 443 (1993). However, the Supreme Court reversed the Reed case in Griffith v State Farm, 472 Mich 521 (2005) and also held that the expense of nonmedical food for persons cared for at home is not a recoverable benefit. Still, room and board charges incurred by institutionalized patients for any type of food served in a hospital or residential facility continue to be compensable under the statute.

 

Rehabilitation — The courts have also held that the allowable expense benefit includes not only services for the physical rehabilitation of the injured person, but also the reasonable expense of vocational rehabilitation, job retraining and job placement. Furthermore, the courts have rejected the argument that a no-fault insurer is only obligated to restore the injured person to his or her “pre-accident status” as opposed to elevating the victim to a higher functional level reasonably consistent with the person’s capabilities. The fact that the Michigan no-fault system provides full physical as well as vocational rehabilitation is a very important benefit for seriously injured victims. See Bailey v DAIIE, 143 Mich App 223 (1985); Kondratek v Auto Club Ins Ass’n, 163 Mich App 634 (1987); and Tennant v State Farm Mutual Automobile Ins Co, 143 Mich App 419 (1985).

 

Special Transportation — The courts have also held that, in certain situations, an insurance company may be obligated to pay for the purchase and/or modification of a motor vehicle for the transportation of a seriously injured person. An example would be persons suffering spinal-cord injuries or serious brain injuries who, because of the nature of their disability, now need a handicapper-equipped van or other specially adapted vehicle in order to be transported. Depending upon the facts of the case, the insurer’s obligation may be to equip an existing vehicle with handicapper equipment or to fully fund the purchase of a new vehicle outfitted with such equipment. The issue of whether a new vehicle should be purchased or an existing vehicle specially equipped, is determined by what is considered “reasonably necessary” for the injured person’s care, recovery, or rehabilitation. See Davis v Citizens Ins Co of America, 195 Mich App 323 (1992).

 

Medical Mileage — The courts have also held that an insurance company is obligated to pay mileage to transport an injured person to and from necessary medical care or rehabilitation. There is some dispute as to the appropriate mileage rate but some court decisions have held it is proper to utilize the State of Michigan mileage reimbursement rate as a guide. See Swantek v Automobile Club of Michigan Ins Group, 118 Mich App 807 (1982).

 

Guardian Expenses — The courts have held that where a seriously injured person requires the probate-court appointment of a guardian or conservator, the costs of appointing and maintaining such a probate fiduciary are recoverable as an allowable expense. See Heinz v Auto Club Ins Ass’n, 214 Mich App 195 (1995).

 

2. The Causation Requirement Applicable to Allowable Expense Claims

In recent years, there has been increasing discussion and some uncertainty as to exactly what legal causation standard is applicable to the payment of allowable expense claims under Subsection 3107(1)(a) of the No-Fault Act. Many years ago, the causation issue was addressed in the context of entitlement to no-fault benefits under Subsection 3105(1). One of the leading causation cases dealing with entitlement to benefits is the decision in Shinabarger v Citizens Insurance Co, 90 Mich App 307 (1979). In that case, the Court held that the language of Subsection 3105(1) making benefits compensable for injuries “arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle,” is satisfied “where use of the vehicle is one of the causes of the injury . . . even though there exists an independent cause. . . almost any causal connection or relationship will do . . .” Subsequent appellate decisions applied this Shinabarger standard in a variety of cases dealing with entitlement to benefits. Over time, the question developed whether the “arising out of” causation standard adopted by the Shinabarger case applied to determine the liability of a no-fault insurance company to pay allowable expenses under Subsection 3107(1)(a) of the Act. This issue was recently decided by the Court of Appeals in the case of Scott v State Farm, 278 Mich App 578 (2008). In that decision, the Court of Appeals held that the Shinabarger causation standard applicable to the entitlement issues under Subsection 3105(1) also applies to the allowable expense claims under the provisions of Subsection 3107(1)(a). Therefore, if an auto-accident injury is one of the causes for a person’s need for medical services, the no-fault insurer is obligated to pay the entire amount of the claim, even though there may be other causes contributing to the need for those services.

 

3. The “Griffith Problem” and Its Impact on Allowable Expense Claims

On January 14, 2005, the Michigan Supreme Court decided the case of Griffith v State Farm, 472 Mich 521 (2005), which some insurance companies contend substantially impacts the types of products, services, and accommodations that are compensable under the No-Fault Act. Until the courts provide further clarification of the Griffith case, the legal interpretation of this decision by many insurance companies should be viewed cautiously and skeptically. To avoid an over extension of the Griffith holding, it is important to understand the specific issue involved in the Griffith case and the Court’s ruling regarding that issue. In Griffith, the Court held that a no-fault insurer was not responsible for paying the costs of non-medical/non-special dietary food expenses of a catastrophically injured person who was cared for at home because the injured person’s dietary needs had not been altered in any way by the accident. In other words, the victim’s food needs after the accident were identical to what they were before the accident. As such, there was absolutely no relationship between the person’s injury and his food needs. In that situation, the Court held that the no-fault insurer had no obligation to pay for the victim’s in-home food expenses.

 

Insurance companies, however, frequently cite Griffith for the proposition that a no-fault insurer never has an obligation to pay for any products, services, or accommodations that the injured person would have needed had there not been an accident. Therefore, because most injured persons require some form of housing, transportation, and personal maintenance before an injury, no-fault insurers argue they should have no obligation to pay for such preexisting needs after an accident occurs. However, a close reading of the Griffith decision indicates that Griffith should not be extended to cases where accident-related injuries have, in some way, affected the patient’s pre-accident needs. In other words, if a catastrophic injury affected a claimant’s housing needs so that the person’s housing needs are now different than they were before the accident, then there should be a sufficient causal relationship obligating a no-fault insurer to pay benefits for all of those preexisting, but now changed, needs. Such an analysis would also be consistent with the earlier opinion of the Court of Appeals in Sharp v Preferred Risk Mutual Insurance Co, supra. Therefore, a proper reading of the decisions in Scott v State Farm and Griffith v State Farm produce a simple three-part test that should be applied to determine an insurer’s liability to pay allowable expense claims under Subsection 3107(1)(a) of the Act. Under this three-part test, an insurer would be responsible to pay 100% of an allowable expense claim if the patient establishes the following elements: (1) the patient’s injuries either materially affected his pre-accident need for the services at issue or the injuries were one of the reasons why the patient needs these services; (2) the services at issue are reasonably necessary for the patient’s care, recovery, and rehabilitation; and (3) the charge for the services is reasonable.

 

PIP Benefit #2:  Work Loss Benefits

Subsection 3107(1)(b) provides that where an injured victim cannot work as a result of an auto accident, work loss benefits are payable for up to a maximum of three years. The statute defines work loss benefits as compensation for “loss of income from work an injured person would have performed during the first three years after the date of the accident if he or she had not been injured.” Under the statute, work loss benefits are payable at the rate of 85 percent of gross pay, including overtime. However, the work loss benefit cannot exceed a monthly maximum, which is adjusted in October of every year to keep pace with the cost of living. These cost-of-living adjustments, however, only apply to accidents occurring after each adjustment date. Therefore, the monthly maximum applicable at the time of the injured victim’s accident is the monthly maximum that continues to apply for the remainder of that person’s three-year benefit period. Set forth below are the monthly maximum benefit levels that have been in effect for the last 10 years:

 

Other important principles regarding work loss benefits are summarized below.

 

The Applicable Disability Standard and the Duty to Mitigate

 

Under the statute, it is not necessary to prove that the injured person is completely disabled from performing any type of employment. On the contrary, the statute requires payment of work loss benefits if the injured person cannot perform the work the injured person “would have performed” had the accident not occurred. In addition, the courts have held that wage loss benefits must include salary increases, overtime, and other merit raises that would have been received during the person’s disability. See Lewis v DAIIE, 90 Mich App 251 (1979) and Farquharson v Travelers Ins Co, 121 Mich App 766 (1982). Any income earned by the injured person during a period of disability reduces the wage loss benefit otherwise payable for that same period. See Snellenberger v Celina Mutual Ins Co, 167 Mich App 83 (1988). The courts have also imposed an obligation on the injured person to “mitigate damages” by seeking alternative employment if such employment is available and if it is otherwise “reasonable” under the circumstances for the injured person to accept it. See Bak v Citizens Ins Co, 199 Mich App 730 (1993).

 

The Interplay Between Work Loss Benefits, Sick Leave, Vacation and Wage Continuation Benefits

 

Our courts have held that a no-fault insurance company cannot reduce wage loss benefits by an injured person’s sick leave, vacation time, or employer-paid wage- continuation benefits. Therefore, if an injured person is receiving sick pay or is drawing on vacation time during a period of disability, the no-fault insurer must pay full no-fault wage loss benefits. See Orr v DAIIE, 90 Mich App 687 (1979). Similarly, where an employer continues paying wages under a wage continuation plan, the no-fault insurer must pay full no-fault wage loss benefits without regard to the wage continuation payments. See Brashear v DAIIE, 144 Mich App 667 (1985); Spencer v Hartford Accident & Indem Co, 179 Mich App 389 (1989); and Wesolek v City of Saginaw, 202 Mich App 637 (1993). However, if the injured person has purchased a coordinated benefits no-fault policy, a no-fault insurer may reduce no-fault wage loss benefits by the amount the person receives from wage continuation plans that are in the nature of “other health and accident coverage.” See Jarrad v Integon, 472 Mich 207 (2005).

 

Temporarily Unemployed Persons

 

The Act also contains a special provision for those persons who are considered “temporarily unemployed” at the time of an auto-accident injury. Such individuals are entitled to no-fault wage loss benefits based upon the last month of full-time employment. This provision appears in Section 3107a, which states: “Work loss for an injured person who is temporarily unemployed at the time of the accident or during the period of disability shall be based on earned income for the last month employed full time preceding the accident.” The statute does not define “temporarily unemployed.” Court decisions, however, have focused on a variety of factors including the length of time of the unemployment, the reasons for the unemployment, the injured person’s work history, and the subjective and objective evidence of the person’s intention to return to employment. Moreover, the courts have stated that a person who is completely physically disabled from working for reasons unrelated to a car accident is not entitled to no-fault work loss benefits. See MacDonald v State Farm Mut Ins Co, 419 Mich 146 (1984) and Williams v DAIIE, 169 Mich App 301 (1988).

 

Self-Employed Persons

 

Self-employed accident victims are entitled to recover wage loss benefits but, oftentimes, experience great difficulty with insurance companies in establishing the appropriate level of benefits. The courts have held that a self-employed person’s business expenses should be deducted from his or her gross receipts in order to determine the proper no-fault work loss benefit level. The courts, however, have rejected the principle that all business expenses reported on Schedule C of the individual’s tax returns are fully and automatically deductible from gross receipts. Therefore, the question of which business-related expenses should be deductible from the gross receipts of a self-employed person to arrive at the proper wage loss benefit level payable under the no-fault law is a question of fact that is typically determined on a case-by-case basis. See Adams v Auto Club Ins Ass’n, 154 Mich App 186 (1986).

 

 

PIP Benefit #3: Replacement Service Expenses

Under the No-Fault Act, an injured person may also receive reimbursement, in an amount not to exceed $20 per day, for expenses incurred in having others perform reasonably necessary domestic-type services that the injured person would have performed for non-income-producing purposes. This benefit is payable for the first three years following an accident. These benefits are payable under Subsection 3107(1)(c) for expenses “reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he or she had not been injured, an injured person would have performed during the first three years after the date of the accident, not for income but for the benefit of himself or herself or of his or her dependent.” Some important principles regarding these replacement service expense benefits are summarized below:

 

Nature of the Benefit

 

Replacement service expenses are typically domestic related. They include things such as housekeeping, yard work, laundry, home maintenance, babysitting, etc. As with attendant care, replacement services may be rendered by relatives and friends as long as the service is something the injured person used to perform, is reasonably necessary, and the amount charged is reasonable. The statute prohibits payment of replacement services for income-producing activities. Therefore, self-employed persons cannot hire substitute workers and obtain reimbursement for that expense under this particular benefit. Furthermore, the $20 per day maximum benefit is not a cumulative benefit and thus, if it is not used in one particular day, it is lost. It is not necessary that an injured person actually pay cash for the service as long as he or she has “incurred” the expense in the sense of becoming obligated to pay the service provider. It is very important to keep careful records with regard to replacement service claims. These claims should be documented by signed receipts from the person who performed the service, explaining what was done, when it was done, and the charge incurred. Oftentimes, a doctor’s statement confirming the need for the service is necessary.

 

An Important Distinction: Attendant Care Services v Replacement Services

 

There is a “gray area” with regard to certain kinds of personal care services rendered to an injured person in his or her home. If the service is related to the injured person’s “care, recovery or rehabilitation,” it is an “allowable expense” payable under Subsection 3107(1)(a). If the service is not related to personal care, recovery, or rehabilitation but is more in the nature of a domestic service, it is probably a “replacement service expense” payable under Subsection 3107(1)(c). The distinction is crucial as “replacement services” are limited to $20 per day and terminate three years from the date of the accident, whereas “allowable expense services” are unlimited in amount and are payable for life. Therefore, those service providers rendering care to an injured person in the person’s home must be careful to separate the two types of service claims so as to avoid the application of the $20-per-day/three-year limitation in situations where the claim is properly payable as an allowable expense benefit. Sometimes insurance companies blur this distinction, resulting in inadequate reimbursement to accident victims.

 

PIP Benefit #4: Survivor’s Loss Benefits

Where a motor-vehicle accident results in death, dependents of the decedent are entitled to recover “survivor’s loss benefits” under Section 3108 and funeral and burial expenses under Subsection 3107(1)(a) of the No-Fault Act. Survivor’s loss benefits are payable for three years and are subject to the same maximum monthly benefit ceiling which is applicable to work loss claims. Survivor’s loss benefits are comprised of several components, which include after-tax income, lost fringe benefits, and replacement service expenses. Survivor’s loss benefits are payable under Section 3108 for the:

 

loss . . . of contributions of tangible things of economic value . . . that dependents of the deceased . . . would have received for support during their dependency . . . if the deceased had not suffered the accidental bodily injury causing death and expenses, not exceeding $20 per day, reasonably incurred by these dependents during their dependency . . . in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if the deceased had not suffered the injury causing death.

 

Important principles regarding survivor’s loss benefits are summarized below.

 

Multiple Elements of the Claim

 

The courts have held that the survivor’s loss benefit is a multifaceted benefit that includes several important and distinct elements, including: (1) the after-tax income earned by the decedent; (2) the value of fringe benefits that were available to the decedent and his/her family but are now lost or diminished because of his/her death; (3) any other activity that resulted in the production of “contributions of tangible things of economic value” (e.g., exchanging services with neighbors); and (4) the same type of replacement service expense benefit payable in non-death cases. The courts have also held that survivor’s loss benefits are not to be reduced by amounts attributable to the personal consumption of the decedent. See Miller v State Farm Mut Auto Ins Co, 410 Mich 538 (1981).

 

A Single Monthly Ceiling

 

Unlike non-death cases where it is possible to recover work loss benefits up to the monthly maximum plus an additional amount of $20 per day in replacement service expenses, all elements of survivor’s loss benefits are capped by the monthly maximum limitation, including the replacement service component. Therefore, the sum total of all elements of the survivor’s loss claim cannot exceed the monthly maximum cap applicable to no-fault work loss benefits under Subsection 3107(1)(b).

 

Eligible Claimants

 

Only those persons who are classified as a “dependent” of the decedent may make a claim for survivor’s loss benefits. Section 3110 of the Act states that spouses and children under 18 are conclusively presumed to be dependents of the deceased. In addition, children over 18 but physically or mentally incapacitated from earning are considered to be a dependent of a parent with whom the child lives or from whom the child was receiving support regularly at the time of the parent’s death. Dependency continues for children over the age of 18 if they are engaged “full time in a formal program of academic or vocational education or training.” In all other cases, questions of dependency and the extent of dependency are to be determined in accordance with the facts as they exist at the time of death. The Act also states that the dependency of the surviving spouse terminates upon death or remarriage of the surviving spouse.

 

Funeral and Burial Expenses

 

Subsection 3107(1)(a) provides for a separate “funeral and burial expense” benefit which shall not be less than $1,750 or more than $5,000, depending upon the type of coverage the accident victim was carrying at the time of the accident. These benefits apply to the charges of a funeral home, grave site, and related expenses.

 

 

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