12 Fla. L. Weekly Supp. 1086a
Insurance — Personal injury protection — Independent medical examination — Failure to attend IME does not relief insurer from duty to pay all medical bills for services that predate missed IME, including those for which medical bills were received less than thirty days prior to missed IME
MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., as assignee for ADELINA LOPEZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-1080 CC24. August 29, 2005. Ada Pozo Revilla, Judge. Counsel: Richard Shuster. Norma Pacheco.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO IME“NO-SHOW” AFFIRMATIVE DEFENSE
THIS MATTER having come before the Court for hearing on May 15, 2005 on Plaintiff’s Motion for Summary Judgment on Defendant’s “IME No-Show” Affirmative Defense and the Court having reviewed the Court file, including all record evidence presented, the parties’ motions and supporting documents, and the Court having heard argument of counsel and being otherwise fully advised in the premises.
THE COURT makes the following FINDINGS OF FACT:
1. The diagnostic imaging services that are the subject of the complaint were rendered on December 14, 2002.
2. Plaintiff’s Affidavit in support of partial summary judgment, dated February 10, 2004, and filed with this Court on February 18, 2004 states that Millennium’s bill was received by United Automobile Insurance Company, (hereafter United) on February 7, 2002, is consistent with United’s “No-Fault Payment Register” that indicates that Millennium’s bill was received on February 7, 2002. There is no genuine issue of material fact with respect to the date United received Millennium’s bill.
3. According to the March 1, 2004 affidavit of United’s litigation adjuster, Anthony Gregory, United, or its agents scheduled an “independent medical examination” on February 15, 2002. When Adelina Lopez failed to attend the February 15, 2002 examination it was rescheduled for March 4, 2002. The Plaintiff does not dispute the
dates upon which United scheduled the examination.
ISSUE OF LAW — WHETHER A PIP CARRIER WHO RECEIVES A MEDICAL BILL LESS THAN THIRTY DAYS PRIOR TO THE DATE OF AN IME NO-SHOW IS RELIEVED OF ITS DUTY TO PAY MEDICAL BILLS FOR SERVICES THAT PREDATE THE MISSED I.M.E.
4. In the instant case the date of service was prior to the missed IME and the Plaintiff’s HCFA claim form bill was received eight (8) days prior to the missed IME. The Defendant contends that it should have thirty (30) days to investigate the claim and should be entitled to do so by subjecting the claimant to a compulsory “independent” medical examination.
5. The Plaintiff contends that the purpose of an “Independent Medical Examination” is to cut off future medical treatment when a carrier retained medical examiner determines that future care is no longer medically necessary.
6. A PIP carrier’s right to subject its insured to compulsory medical examination is statutory, and is codified in Florida Statute 627.736(7). This statute sets forth the consequence of an unreasonable refusal to submit to an examination in 627.736(7)(b) which states:
. . .If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.
7. In U.S. Security v. Silva, 693 So.2d 593 (Fla. 3d DCA 1997), the Court defined subsequent personal injury benefits to include not only claims for services rendered after an IME no show, but also payment of medical bills for dates of service before the IME no-show when the bill is received subsequent to the IME no-show.
8. The Eleventh Circuit applied Silva in Fonseca v. Star Casualty Insurance Company, 10 Fla. L. Weekly Supp. 865a (11th Judicial Circuit, Appellate, Miami-Dade, 2003), wherein the Plaintiff brought suit for payment of medical bills for dates of service from December 11, 1999 to April 9, 2000, despite the fact that the Plaintiff failed to attend an independent medical examination on March 21, 2000. Id.
9. The Fonseca Court ruled that the “Appellee (Carrier) should have paid the benefits incurred by the insured and received by the Appellee before March 21, 2000. The Fonseca Court, did not treat those bills received less than thirty days before the IME no-show and differently than those that were received more than 30 days before the IME no-show. If, as Defendant contends, a PIP carrier is entitled to a 30 day window to have medical bills reviewed by independent medical examination, the Fonseca Court would have granted relief from payment of those bills that were less than thirty (30) days old when the IME was missed. This is not the purpose or function of an IME, nor is there appellate caselaw to support Defendant’s position.
CONCLUSION OF LAW
10. The assignor’s failure to attend an independent medical examination on February 15, 2002 and March 15, 2002 did not relieve United from paying Millennium’s bill that was received on February 7, 2002.
WHEREFORE, the Plaintiff’s Motion for Summary Judgment on Defendant’s IME no-show affirmative defense is granted. Since Judge Swartz’ June 24, 2003 order states “The only issue left for hearing or trial is whether the assignor unreasonably failed to attend I.M.E.” the Plaintiff is entitled to Final Summary Judgment, Final Judgment, and is entitled to reasonable attorney’s fees and costs, jurisdiction is reserved to determine the amount of Plaintiff’s attorney’s fees and costs.
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