11 Fla. L. Weekly Supp. 115b
Insurance — Personal injury protection — Coverage — Denial — Unreasonable, unrelated or unnecessary medical expenses — Although insured’s medical history proved that insured had experienced certain back problems for quite some time and that his condition did not improve during course of treatment from plaintiff medical provider and others, it did not overcome proof that insured suffered new and aggravating injuries in motor vehicle accident and that those injuries remain with insured to this day, necessitating at least palliative care — Bills for chiropractic care are found reasonable, necessary and related to accident
RAYMOND D. CLITES, D.C., P.A., Plaintiff(s), v. METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Defendant(s). Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Action. Case No. 00-6284. Division “H”. December 12, 2003. Paul L. Huey, Judge. Counsel: Tim Patrick. Gale L. Young.
FINDINGS AND CONCLUSIONS
THIS MATTER was tried to the Court, after consent of the parties and their counsel, on November 17,18 and 19, 2003. After observing the witnesses, reviewing the exhibits, hearing argument of counsel and researching applicable law, the Court FINDS, DECREES AND ADJUDGES:
1. That the central issue in this PIP case is whether Plaintiff was entitled to payment of some or all of eleven distinct billings for designated chiropractic services rendered to the insured, Robert Williams (Williams), by employees of Raymond D. Clites, D.C., P.A. (Clites), after Metropolitan Property and Casualty Insurance Company (Metropolitan) obtained an IME report from Dr. Bryan K. Isbell, which opined that no further chiropractic treatment is medically reasonable, related or necessary in regards to the May 27, 1998 motor vehicle accident in which Williams’s heavy duty work, pick-up truck was totaled (the Accident).
2. That by consent or lack of evidence, Metropolitan’s affirmative defenses were not proved.
3. That Mrs. Green, Metropolitan’s litigation adjuster, testified that Metropolitan relied solely upon the IME report to cease paying benefits to Clites.
4. That at all times PIP benefits remained available to satisfy each of the eleven claims at issue.
5. That it was undisputed that, prior to the accident, Williams had been treated for over a decade in several states by several different chiropractors for problems with his lower back. In fact, he was being treated by Clites prior to the Accident. Williams testified via a sworn statement to Metropolitan known as an Examination Under Oath that he favored chiropractic treatment over other forms of medical treatment. It was undisputed that his existing back injuries were aggravated as a result of the accident and that he received treatment from Clites for those new injuries before the IME cut-off. By paying for those pre-IME services, Metropolitan admitted that they were related, reasonable and necessary. In a nutshell, the Court must decide whether each of the billings at issue was related to the Accident or not.
6. That Williams and Dr. Clites testified that the Accident caused (i) contusions to William’s knee and arm,(ii) headaches from his head hitting the windshield, (iii) loss of sleep, (iv) pain radiating to the shoulders, (v) pains in his upper and lower back that he had never felt before, and (vi) pain and range of motion problems in his neck, where he had never had problems before. Also, since the accident Williams has not been physically able to play golf.
7. That unfortunately for the sake of certainty, there were no MRI’s or other objective, visible proof of William’s back, shoulder or neck prior to the Accident. Approximately nine months after the accident, Dr. Clites referred Williams to Dr. Robert Martinez, M.D., a board certified neurologist. Dr. Martinez prepared a report dated March 15, 1999. The report acknowledged that Williams was complaining of headaches two or three days a week, chronic neck pain that spread into his shoulders and upper back, midback pain, severe low back pain, various areas of stiffness and soreness, all of which pain was causing sleep loss. The report finds: “On a scale of 0 to 10, his pain level averages between 5 and 8 depending on his physical activity level.” Importantly for purposes of this case, the report states: “He is made better temporarily by therapy with Dr. Clites.” In describing, Williams’s past medical history, the report notes: “He has been treating with chiropractors off and on all of his life, but is much worse from this accident.” In the Recommendations section of the report, Dr. Martinez wrote: “3. In my opinion, he has suffered a permanent injury from the accident May 27, 1998. He will have symptoms indefinitely. He has to learn to live with his symptoms, adjust his lifestyle accordingly, periodically will require palliative physical therapy, medications and exercises.” and: “12. Continued medical care costs will be approximately $2000-$3000 per year to include doctor visits, medications, physical therapy, TENS unit and epidural blocks.”; and “13. In my opinion, he has reached maximum medical improvement, and has suffered a permanent injury from the accident May 27, 1998 with a 23% permanent impairment rating to the body as a whole.”
8. That approximately six months after the Accident, on November 17, 1998, Williams had an MRI at Tower Diagnostic Center of Brandon, Inc. Consistent with Williams’s and Dr. Clites’s testimony, the MRI indicated bulging discs in addition to degenerative joint disease.
9. That the only medical report Metropolitan placed in evidence to rebut Plaintiff’s position was Dr. Isbell’s IME report. Significantly, Dr. Isbell did not in his report or during his testimony at trial opine that the treatments in issue were not related to the Accident. To the contrary, he wrote: “It is my opinion that this patient’s condition may be somewhat causally related to the 5-27-98 MVA.”
10. Metropolitan’s counsel very ably and in great detail took the Court through an examination of Williams’s medical history from 1995 through the date he stopped seeing Dr. Clites because Williams’s retired and moved to Virginia. Although that effort proved that Williams had experienced certain back problems for quite some time and that his condition did improve during the course of treatment from Dr. Clites and others, it did not overcome the proof that Williams suffered new and aggravating injuries in the Accident and that those injuries remain with him to this day, racking his body with pain and necessitating if nothing else palliative care. Florida’s PIP law is designed to give insured’s like Williams great deference in their choice of medical treatment, and to guarantee swift payment of PIP benefits. See, Crooks v. State Farm, 659 So. 2d 1266 (Fla. 3rd DCA 1995); Palma v. State Farm, 489 So. 2d 147,148-149 (Fla. 4th DCA 1986); Derius v. Allstate Indemnity Company, 723 So. 2d 271, 274 (Fla. 4th DCA 1998) (“. . .in determining what constitutes’ necessary medical service,’ the statute is construed liberally in favor of the insured. We reasoned that the broad scope of medical services covered by the No-Fault Act is high lighted by the inclusion of benefits for remedial treatment and services for an injured person who relies upon spiritual means through prayer alone for healing in accordance with his religious beliefs.”) To qualify for payment, a treatment does not have to target a cure, but rather can be purely palliative. See, Marriott and Marriott Casualty Claims v. Condo, 632 So. 2d 200 (Fla. 1st DCA 1994), Baron Transport v. Riley, 491 So. 2d 1220 (Fla. 1st DCA 1986) and cases cited therein. Also, Florida law regards an insured’s testimony to be sufficient alone, if credible, to prove that the medical bills at issue were reasonable and necessary. See, Polaco v. Smith, 376 So. 2d 409 (Fla. 1st DCA 1979) and cases cited therein. Furthermore, Florida law holds that the question of necessity is determined from the patient’s point of view. See, Garrett v. Morris Kirschman & Co., 336 So. 2d 566 (Fla. 1976); Albertson’s, Inc. v. Brady, 475 So. 2d 986 (Fla. 2d DCA 1985); Kompothrecas v. Progressive Consumers Ins. Co., County Court, 12th Judicial Circuit in and for Sarasota County, Case no. 2000 SC 8388 CC, May 15, 2001 [8 Fla. L. Weekly Supp. 505a].
11. That in light of this law and the evidence, the Court finds that the following billings were reasonable, necessary and related to the Accident and therefore should have been timely paid by Metropolitan in accordance with section 627.736(1)(a), Fla. Stat., i.e., 80%: 11/3/99 — $45; 11/10/99 — $95; 11/17 — $155; 11/24 — $110; 12/1 — $45; 12/15 — $45; 1/5/00 — $45; 1/12 — $110; 1/19 — $45; 3/1 — $90 AND 3/15 — $200. Based on these findings and conclusions, counsel for Plaintiff shall promptly prepare a Final Judgment awarding 80% of the billings identified above, attorneys fees and costs, and reserving as to the amount of those fees and costs.
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