25 Fla. L. Weekly D2812bNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D734a
Insurance — Personal injury protection — Where PIP insurer which had been paying benefits for chiropractic treatment requested independent medical examination, and chiropractic physician who conducted examination concluded that insured had reached maximum medical improvement and that further chiropractic treatment was not medically necessary, insurer could properly withdraw authorization for future chiropractic treatment — Circuit court departed from essential requirements of law when it found that section 627.736(7)(a), Florida Statutes (1997), could not be used to withdraw authorization for future treatment, and reversed county court judgment for insurer in insured’s breach of contract action
AUTO OWNERS INSURANCE COMPANY, Petitioner, v. JOHN MARZULLI, Respondent. 2nd District. Case No. 2D00-864. Opinion filed December 6, 2000. Petition for Writ of Certiorari to the Circuit Court for the Sixth Judicial Circuit for Pinellas County; sitting in its Appellate Capacity. Counsel: Rex E. DelCamp and Cate MacGlashan, of DelCamp & Siegel, St. Petersburg, for Petitioner. Arthur Liebling, Clearwater, for Respondent.
(PER CURIAM.) Petitioner, Auto Owners Insurance Company (Auto Owners), seeks certiorari review of the circuit court’s opinion rendered while sitting in its appellate capacity that reverses the county court’s final judgment entered in its favor after a jury trial. The circuit court’s opinion remanded the matter for entry of partial summary judgment in favor of respondent, John Marzulli, on the issue of entitlement to benefits under a personal injury protection (PIP) policy. The circuit court also entered an order granting Mr. Marzulli’s motion for attorney’s fees. Because we conclude that the circuit court’s opinion departs from the essential requirements of law, we grant the petition for writ of certiorari. See Fortune Ins. Co. v. Everglades Diagnostics, Inc., 721 So. 2d 384, 385 (Fla. 4th DCA 1998) (noting that “[g]iven the pervasiveness of automobiles and PIP coverage in this state, we deem an erroneous interpretation of this law to be important enough for certiorari”).
Mr. Marzulli was involved in an automobile accident in June 1995. He was insured at that time pursuant to no-fault coverage he had purchased from Auto Owners. Mr. Marzulli sought chiropractic treatment at Fleming Chiropractic Clinic after the accident. Auto Owners paid PIP benefits for sixty-three separate dates of chiropractic treatment.
In November 1995, Auto Owners requested that Mr. Marzulli attend an independent medical examination by Dr. D.J. Jeserski, a chiropractic physician. After this examination took place, Dr. Jeserski submitted a report which concluded that Mr. Marzulli had reached maximum medical improvement and that further chiropractic treatment was not medically necessary and would likely “aggravate injuries and perpetuate continued symptoms.” On December 8, 1995, Auto Owners sent a copy of Dr. Jeserski’s report to Mr. Marzulli with a letter stating that it would no longer accept bills for chiropractic treatment after December 20, 1995. Mr. Marzulli continued to undergo chiropractic treatment with Dr. Fleming and submitted bills for treatment after December 28, 1995, which Auto Owners declined to pay.
In June 1996, Mr. Marzulli brought suit in county court claiming that Auto Owners had breached the insurance contract by failing to pay covered PIP claims for thirty-seven separate dates of chiropractic treatment after December 28, 1995. In June 1997, Mr. Marzulli moved for partial summary judgment as to liability. He argued that section 627.736(7)(a), Florida Statutes (1997), provided a procedure whereby an insurer may, under certain circumstances, withdraw payment for medical care that has been rendered. Mr. Marzulli argued, however, that the statute included no provision which allowed for termination of future benefits.
Section 627.736(7)(a) is entitled “Mental and Physical Examination of Injured Person; Reports” and provides, in part:
Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. . . . An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.
The county court denied the motion for summary judgment, and a two-day jury trial was held. The jury returned a verdict for Auto Owners, finding that the chiropractic treatment rendered to Mr. Marzulli after December 28, 1995, was not reasonable, necessary, or related to the accident. The county court entered final judgment in favor of Auto Owners.
Mr. Marzulli appealed to the circuit court. The circuit court reversed the final judgment and remanded the matter. It held that the county court erred in denying Mr. Marzulli’s motion for partial summary judgment as to liability because section 627.736(7)(a) applied only to past medical treatment and could not be used to withdraw authorization for future treatment.
The circuit court found the language of the statute to be clear. According to the circuit court, the language referred only to past treatment, not to treatment that might be sought later. The circuit court acknowledged that use of a report helps an insurer evaluate the reasonableness or necessity of treatment presently authorized. However, the circuit court stated that a report addressing future treatment would not accomplish the purpose of the report requirement. If the insurer were allowed to terminate future medical care on the basis of a report, the circuit court implied that the insured would have no way of seeking medical treatment for future, perhaps vastly changed circumstances. The circuit court subsequently entered an order granting Mr. Marzulli’s motion for attorney’s fees.
We disagree with the circuit court’s interpretation of section 627.736(7)(a). We hold that section 627.726(7)(a) contains ambiguous language. The first sentence of that section suggests that withdrawal of authorization for future benefits may be appropriate after an IME. It states that “[w]henever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians.” (Emphasis added). The statute then states that “[a]n insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.”1 (Emphasis added). This last sentence suggests that payment can only be withdrawn for past treatment.
We, accordingly, construe the statute in a manner that gives effect to all of its provisions. See Forysythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). We conclude that the statute permits an insurer to withdraw authorization for treatment, after an IME, where the physician reports that further treatment is not reasonable, related, or necessary. To conclude otherwise would require insurers either to continue payments for treatments deemed unnecessary by an independent physician or to pay for IMEs each time a bill was submitted for payment to determine whether that treatment was necessary, even though an independent physician already had opined that further treatment would be of no benefit and, in fact, might be detrimental. The legislature never intended such a result under the no-fault statute.
While the circuit court expressed concern that an insured would have no way of seeking medical treatment for future, perhaps vastly changed circumstances, that is not the case. An insured remains able to challenge the denial of PIP benefits or the independent physician’s determination that further treatment is unwarranted in court or through voluntary arbitration. See Livingston v. State Farm Mut. Auto. Ins. Co., 25 Fla. L. Weekly D533 (Fla. 2d DCA Mar. 3, 2000).
Our reading of the statute is supported by the Fourth District’s decision in Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1998). In Derius, the county court certified to the Fourth District the following question:2
TO RECOVER MEDICAL BENEFITS IN A LAWSUIT UNDER SECTION 627.736, FLORIDA STATUTES (SUPP. 1994), MUST THE PLAINTIFF PROVE BY THE GREATER WEIGHT OF THE EVIDENCE THAT THE EXPENSES SOUGHT ARE BOTH REASONABLE AND FOR NECESSARY MEDICAL SERVICES?
723 So. 2d at 271.
The Fourth District answered the question in the affirmative. In Derius, appellant was a passenger in a car driven by her husband, which was rear-ended. Appellant’s chiropractor diagnosed a soft tissue injury in her neck and began treating her on March 2, 1994. Allstate, appellant’s no-fault insurer, initially paid for the chiropractic treatments. After three months, Allstate hired another chiropractor to perform a physical examination on appellant. After the examination, the doctor reported his conclusions to Allstate as follows:
[B]ased on my examination today, I am unable to establish the presence of any significant clinical entity which would require continued chiropractic care. . . . Due to the lack of any clinical support for her subjective complaints, as well as the existence of the functional overlay and the reported lack of subjective progress, I am not recommending your consideration of any additional chiropractic care.
Derius, 723 So. 2d at 272.
As a result of this recommendation, Allstate notified appellant that it would not pay for any chiropractic treatment after June 7, 1994. Appellant continued to receive treatment from her chiropractor until September 1994. She then sued under the no-fault statute seeking, among other things, to recover for her chiropractic treatments given after June 7, 1994, under section 627.736(1)(a), Florida Statutes (Supp. 1994).3 The trial court framed the issue for the jury as “whether any of the chiropractic treatment after June 7, 1994 was necessary and, if so, the total reasonable charges for said chiropractic care.” Id. at 272. The jury returned a verdict for Allstate.
The Fourth District affirmed. Id. It held that under section 627.736(1)(a), an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or the service is not necessary. Id. In a lawsuit seeking benefits under the statute, both reasonableness and necessity are essential elements of a plaintiff’s case. Id. The Fourth District held, “[t]here is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that a proposed charge was unreasonable or that a given service was not necessary.” Id. The court concluded that “Allstate’s reliance on the IME chiropractor’s letter to withdraw payment to [appellant’s] chiropractor was in compliance with the requirements of section 627.736(7)(a).” Id. at 275.
We agree with the Fourth District’s conclusion in Derius and find that its holding is dispositive as applied to the facts of this case. While the circuit court in this case may have disagreed with the result in Derius, it was not free to disregard it. See Omni Ins. Co. v. Special Care Clinic, Inc., 708 So. 2d 314 (Fla. 2d DCA 1998) (holding that circuit court, sitting in its appellate capacity, must follow ruling of any unconflicted extra-jurisdiction district court of appeal opinion on point). Like the insurer did in Derius, Auto Owners terminated authorization of further, on-going treatments by Mr. Marzulli’s chiropractor based on a report from another chiropractor stating that further treatment was not medically necessary and would likely “aggravate injuries and perpetuate continued symptoms.” Auto Owners’ reliance on this report to withdraw payment to Dr. Fleming was in compliance with the requirements of section 627.736(7)(a).
We, accordingly, grant the petition for writ of certiorari. We quash the circuit court’s opinion and remand this case to the circuit court for consideration of the other issues raised by Mr. Marzulli on appeal.4 We also quash the circuit court’s order awarding appellate attorney’s fees to Mr. Marzulli. (BLUE, A.C.J., and WHATLEY and GREEN, JJ., Concur.)
________
1 We have not overlooked the Fourth District’s decision in Nationwide Mutual Fire Insurance Co. v. Southeast Diagnostics, Inc., 25 Fla. L. Weekly D316 (Fla. 4th DCA Feb. 2, 2000). According to the Fourth District, the last sentence in section 627.736(7)(a), Florida Statutes (1995), is unambiguous and does not require a physician’s report to be based upon a physical examination of the insured. See id. However, in Southeast Diagnostics, the insurer denied payment to a treating physician for a nerve conduction test already performed based on a report from another physician that the test was medically unnecessary. It was not presented with the issue here regarding the termination of future benefits.
2The county court also certified to the Fourth District a second question: “IN AN ACTION FOR PIP BENEFITS, WHERE A TRIAL COURT CHARGES THE JURY USING THE LANGUAGE OF SECTION 627.736(1)(a), MUST THE COURT FURTHER DEFINE THE TERM “NECESSARY” AS USED IN THE STATUTE?” Derius v. Allstate Indem. Co., 723 So. 2d 271, 271 (Fla. 4th DCA 1998). This second question is not dispositive of the issue raised in this certiorari proceeding.
3The pertinent language in the statute has not changed since 1994.
4The circuit court declined to address the other issues raised by Mr. Marzulli on appeal concluding that its decision on the issue under review rendered the additional issues moot. We decline Mr. Marzulli’s invitation to decide those issues for the first time in this certiorari proceeding.
