12 Fla. L. Weekly Supp. 93b
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related or necessary treatment — Medical provider’s motion for summary judgment is granted where there is no genuine issue of material fact as to reasonableness, relatedness, and necessity of medical bills or as to issue of provider’s licensure to provide physical therapy
COUNTY LINE CHIROPRACTIC CENTER, INC., assignee of Lenox Wright, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-12500 CC 25 (1). October 15, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead. Russell Kolodziej. Dean Mitchell.
ORDER GRANTING in part PLAINTIFF’S SECOND MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on August 18, 2004, after due to the parties, on Plaintiff, COUNTY LINE CHIROPRACTIC CENTER, INC., assignee of Lenox Wright’s, Second Motion for Summary Judgment, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Second Motion for Summary Judgment is GRANTED IN PART as to reasonableness, relatedness and necessity for medical bills prior to August 12, 2002, and as to licensure, there being no genuine issue of material fact and Plaintiff being entitled to judgment as a matter of law, as to those issues.
2. The remaining issues are reasonable, related and necessary for medical expenses occurring after the IME cutoff date of 8/12/02 and material misrepresentation.
FINDINGS OF FACT
3. The Plaintiff filed a PIP lawsuit against the Defendant on 11/7/02 alleging violation of § 627.736 and breach of contract, seeking to enforce the payment of PIP benefits arising out of a motor vehicle accident that occurred on 6/5/02.
4. The Plaintiff sued the Defendant for medical expenses in the following amounts: COUNTY LINE CHIROPRACTIC CENTER, INC., in the amount of $12,041.00, for services provided June 7, 2002 through September 6, 2002.
5. On or about 12/18/03, the Court entered Summary Judgment in favor of the Plaintiff on the issue of standing and ruled the Plaintiff would only be entitled to payment for medical expenses rendered on or after 6/8/02.
6. The Defendant filed a third Amended Answer and Affirmative Defenses to the Plaintiff’s Complaint on or about 12/18/03.
7. As for its first Amended Affirmative Defense, Defendant states the Plaintiff unlawfully rendered medical services pursuant to Fla. Stat. § 627.736(5)(a) in that physical therapy services were rendered without a proper physical therapy license.
8. The Court grants Plaintiff’s Second Motion for Summary Judgment on the issue licensure.
9. The Defendant’s Second Amended Affirmative Defense alleges the Defendant is not responsible for and denied payment for medical expenses incurred subsequent to September 16, 2002, as not being reasonable, related and/or medically necessary based on the opinion of Dr. Gail Golden, DC.
10. The Court grants Plaintiff’s Second Motion for Summary Judgment as to reasonable, related and necessary for dates of service 6/7/02 through 8/12/02.
11. The Court struck the Defendant’s Third Amended Affirmative Defense of Fraud on 5/3/04.
12. The Defendant’s Fourth Amended Affirmative Defense alleges that policy holder submitted material misrepresentation on his application for insurance, in that he failed to list all residents of his household as requested by the insurance application, but for which Defendant would not have, in good faith, issued the subject insurance policy, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the alleged loss. This constitutes a material misrepresentation under 627.409.
13. The Plaintiff did not seek Summary Judgment on this issue at the hearing and the Court did not enter any rulings on the issue of material misrepresentation.
14. The Plaintiff filed the EUO transcript of the insured/claimant, Lenox Wright, who testified he was in the subject motor vehicle accident, described the accident, testified he was driving his Mazda Protege at the time of the accident, testified that he was injured as a result of the accident, described his injuries, testified that he sought medical care and attention for his injuries at County Line Chiropractic, received therapy at County Line Chiropractic, and described the therapy. (See EUO Transcript of Lenox Wright taken on 10/8/02 and produced by Defendant in response to Plaintiff’s Request to Produce).
15. Additionally, the Plaintiff filed the deposition transcript of the insured/claimant, Lenox Wright, who testified he was in the subject motor vehicle accident, described the accident, testified he was driving his Mazda Protege at the time of the accident, testified he was injured as a result of the accident, described his injuries, testified that he sought medical care and attention for his injuries at County Line Chiropractic, received therapy at County Line Chiropractic, and described the therapy. (See deposition transcript of Lenox Wright taken on 2/12/04).
16. The Plaintiff’s medical services for dates of service 6/8/02 through 8/12/02 are reasonable, related and necessary. These charges total $9,064.00.
17. The Plaintiff filed the deposition transcript of the Defendant’s litigation adjuster, Jon Sorensen, taken on 7/25/03. He has the most knowledge of the Plaintiff’s PIP claim, and is employed by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
18. The Plaintiff’s medical expenses are reasonable, related and necessary. The Plaintiff filed affidavits of the treating physician and person with the most knowledge of the billing and records from County Line Chiropractic, which establish that all of the persons who treated the insured/patient were properly licensed, the clinic had all proper licenses, and all of the treatment was related to the subject accident, reasonable and necessary.
19. The Defendant filed the IME report of Gail Golden, DC.
20. The Defendant filed nothing to refute the reasonableness, relatedness or necessity of the medical charges for dates of service 6/8/02 through 8/12/02.
21. The Defendant failed to establish it had reasonable proof it was not responsible for payment of the subject medical bill received by the Defendant within thirty (30) days pursuant to Florida Statutes § 627.736(4)(b), and failed to obtain a report from a physician in the same licensing chapter as the treating physicians stating that no further treatment was medically necessary as required by § 627.736(7), and all outstanding medical bills remain due and owing plus 10% interest from 30 days after receipt of each bill up to and including the present date.
22. The Defendant failed to establish that the subject charges prior to 8/12/02 are not reasonable, related or necessary or that the Plaintiff has not complied with any conditions precedent.
ISSUES OF LAW
23. Pursuant to the policy of insurance and Florida Statutes §627.736(1)(a), the Defendant remains responsible for payment of 80% of the related, reasonable and medically necessary bills incurred by the subject medical care providers as a result of the subject accident.
24. Further, pursuant to §627.736(4)(b) and (c), the Defendant has thirty (30) days to establish reasonable proof that it is not responsible for payment of the medical bills, otherwise the medical bills are overdue if not paid within thirty (30) days from receipt, plus interest.
25. In order for the insurer to suspend PIP medical benefits, it must comply with §627.736(7). If the insurer fails to obtain a report for a physician in the same licensing chapter as the treating physician, it cannot suspend or withdraw benefits pursuant to Florida Statutes § 627.736(7).
26. The appellate case of United Automobile Insurance Co. v. Neurology Assoc. Group Two, Inc., a/a/o Nicholas Cabello, 11Fla. L. Weekly Supp. 204 (11th Judicial Circuit 2004) further supports the Plaintiff’s position for a Summary Judgment. In Cabello, the injured insured obtained treatment from the appellee-plaintiff who submitted claims to United Automobile. The trial court granted summary judgment in favor of the plaintiff on the issues of countersignature and whether the treatment was reasonable, related and necessary. The plaintiff submitted the affidavit of the treating physician to establish the benefits sought were reasonable, related and necessary. United Automobile submitted letter from a claims adjuster stating the IME physician felt the treatment was not reasonable, related or necessary. The appellate court affirmed the entry of summary judgment and stated, “the testimony of a claims adjuster can hardly address whether medical treatment was reasonable, related to the accident or medically necessary.”
27. Also, United Automobile Insurance Co. v. Mendoza, 11 Fla. L. Weekly Supp. 299a (11th Judicial Circuit 2004), supports the Plaintiff’s position. In Mendoza, the insured sustained injuries in an automobile accident on 3/25/01. Thereafter he obtained treatment from various providers who submitted claims to United Automobile. The plaintiff sued to recover the PIP benefits and moved for summary judgment. The plaintiff filed an affidavit of a medical doctor who concluded treatment provided to the insured was reasonable, related and necessary to injuries sustained as a result of the subject accident. The trial court granted summary judgment in favor of the plaintiff.
28. The defendant appealed claiming the trial court abused its discretion in granting summary judgment. The appellate court affirmed the entry of summary judgment finding once the plaintiff successfully met its burden of establishing the non-existence of an issue of material fact, the burden switched to the defendant to demonstrate the existence of such an issue. The appellate court determined the defendant failed to meet its burden. The defendant did not file an affidavit or any other countervailing evidence to refute the medical treatments as being reasonable, related and necessary. The appellate court also found the deposition testimony of the defendant’s adjuster concerning the IME physician’s report failed to create a genuine issue of material fact.
29. In order to create any genuine issue of a material fact regarding whether the subject medical expenses were reasonable, related or necessary, the Defendant is required to either substantially impeach the medical expert testimony of the treating physicians, or present countervailing evidence from a licensed physician. See Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2d DCA 1999), Holmes v. State Farm Mutual Automobile Insurance, 624 So.2d 824 (Fla. 2d DCA 1993), Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992).
30. In Ortega v. United Automobile Insurance Company, 847 So.2d 994 (Fla. 3rd DCA 2003) the Court held that Florida’s Personal Injury Law did not contain an affirmative requirement that an additional statement of licensure be appended to the bills.
31. The Ortega Court held that Fla. Stat. § 627.736(5)(e) supra contains only two affirmative requirements. “First, the statements and bills for the medical services rendered are required to be submitted on a Health Care Finance Administration 1500 form, UB 92 forms, or another standard form approved by the Department of Insurance. Second, those bills are required, to the extent applicable, to follow the Physicians’ Current Procedural Terminology (CPT) in the year in which the services are rendered.” Id. at 996.
32. The Court finds the medical bills received from the Plaintiff for dates of service 6/8/02 through 8/12/02 are reasonable, related and necessary, in the amount of $9,064.00.
33. The only remaining issues are reasonable, related and necessary for services rendered after 8/12/02 and the alleged material misrepresentation in the application for insurance.
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