12 Fla. L. Weekly Supp. 515a

Insurance — Personal injury protection — Coverage — Medical expenses — Withdrawal of benefits — Treatment not reasonable, related, or necessary — Nothing in plain language of section 627.736(7)(a) requires insurer to provide proof of independent medical examiner physician’s licensure before insurer can raise affirmative defense that treatment for which payment was requested was not reasonable, related, or necessary — Because both reasonableness and necessity are essential elements of plaintiff’s case under No-Fault Law, issue of whether IME holds requisite license is to be raised by plaintiff in plaintiff’s pleadings

OLGA HARNED, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 02-9394CI-88B. UCN 522002CA009394XXCICI. August 24, 2004. Appeal from Final Judgment, Pinellas County Court, County Judge Henry J. Andringa. Counsel: William K. Saron, St. Petersburg, for Appellant. Gerald P. Duignan, Tampa, for Appellee.

ORDER AND OPINION

(DAVID A. DEMERS, J.) This matter is before the Court on an appeal filed by Olga Harned from the Final Judgment and Order entered on November 8, 2002, denying her Motion for Directed Verdict. Having fully reviewed the briefs, the record, and pertinent legal authority, this Court hereby affirms the trial court’s ruling as detailed below.

In November of 1997, Appellant, who had Personal Injury Protection (PIP) benefits under an insurance policy with Appellee (State Farm), sustained injuries in an automobile accident. For several months, State Farm paid Harned’s medical bills for chiropractic treatment related to the accident. In July of 1998, however, State Farm questioned whether Harned was entitled to any further benefits for treatment and had Harned undergo an independent medical examination (IME) by another chiropractor, Dr. John Campo.

In a report dated July 14, 1998, Dr. Campo detailed the results of his examination and concluded that any further chiropractic physical therapy services or diagnostic testing would not be reasonably related to or medically necessary for treatment of Harned’s injuries. By letter dated July 22, 1998, State Farm Senior Claims Representative Diane Withee informed Harned that, based upon Dr. Campo’s examination and report, State Farm would not consider any further chiropractic, physical therapy or diagnostic testing expenses after July 23, 1998. Withee attached a copy of Dr. Campo’s report for Harned’s review.

Harned’s chiropractor continued to submit bills to State Farm for payment, but State Farm denied these claims. Appellant then filed suit against State Farm, alleging, inter alia, that State Farm had violated Florida’s Vehicle No-Fault provisions by refusing to pay for medical treatment she received after July 23, 1998. Nowhere, however, did Appellant allege that Dr. Campo’s report was in any way insufficient to meet the requirements of Florida Statutes, § 627.736(7)(a), which provides that before an insurer may withdraw benefits, it must obtain either the insured’s consent or “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.” § 627.736(7)(a), Fla. Stat. (1997).

Likewise, in her Pre-Trial Conference Statement, Appellant framed the sole issue for trial as whether the medical bills at issue were reasonable, related and necessary under PIP provisions. Again, no mention was made of the validity of Dr. Campo’s report under § 627.736(7)(a).

At trial, Appellant called Ms. Withee as a witness and had her refer to portions of Dr. Campo’s report. Appellant also did not object to Appellee’s reading of portions of the report into the record during its examination of Ms. Withee. While Appellee presented live and deposition testimony of three physicians, it did not call Dr. Campo as a witness or move for the admission of his report into evidence.

At the close of all evidence, Appellant moved for a directed verdict, alleging that under § 627.736(7)(a), State Farm was required to introduce evidence establishing that at the time Dr. Campo wrote his report, he was licensed under the same chapter as Appellant’s treating physician. The trial court reserved ruling on the motion and sent the case to the jury, which returned a verdict in favor of State Farm. The trial court then denied Appellant’s motion, determining that the statute did not require State Farm to prove Dr. Campo’s licensure at trial.

The primary issue before this Court is whether the provisions §627.736(7)(a) require an insurer to offer proof at trial that the physician who authored the IME report was licensed under the same provision as the insured’s treating physician. Appellant argues that such proof is a condition precedent to the insurer’s ability to present affirmative defenses, and that since the Appellant could not have known that State Farm would offer no proof of licensure until the close of all evidence at trial, Appellant was not required to raise this issue at any prior point. State Farm argues that nothing in the statute requires such proof at trial, and that if Appellant questioned the validity of Dr. Campo’s license, she needed to raise the issue in her complaint.

“Where the wording of the (No-Fault) Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law.” United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001). The statutory language at issue reads:

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.

§ 627.736(7)(a), Fla. Stat. (1997).¹

While dealing with a different provision of § 627.736, Ortega v. United Auto. Ins. Co., 847 So. 2d 994 (Fla. 3d DCA), rev. dismissed, 859 So. 2d 516 (Fla. 2003) provides valuable guidance on what bearing the licensure requirements in the No-Fault Law have upon the burdens of proof at trial. Ortega, like Appellant, sued his insurance company after it suspended benefits based upon the opinion of its IME physician. Id. at 995. At trial in County Court, Ortega introduced no evidence regarding the licensure of his treating physicians. Id. United moved for a directed verdict, arguing that the provisions of Florida Statutes, §627.736(5)(d),² required Ortega as part of his prima facie case to prove that his medical providers were licensed to perform the treatment he received. Id. The trial court agreed and directed a verdict in United’s favor, which was affirmed by the Appellate Division of the Circuit Court. Id.

The Third District reversed, finding that the Circuit Court erred when it (1) determined that §627.736(5)(d) required the insured to include proof of his provider’s licensure with bills submitted for payment; and (2) subsequently concluded that the insured was required to establish licensure as part of his prima facie case. Id. at 996-97. Specifically, the court noted that while the section required that bills be submitted on particular forms and follow particular delineated terminology, “[t]he statute does not contain an affirmative requirement that an additional statement of licensure be appended to the bills.” Id. at 997. Instead, the court determined that “the statute only declares that the statement of medical services cannot contain charges for services performed by unlicensed individuals or entities,” and declared this “a far cry from requiring substantiation of a medical provider’s license.” Id.

Consequently, the court found that a directed verdict in United’s favor was erroneous because it was “premised upon non-compliance with non-existent statutory requirement.” Id. Further, given that the insurer bears the burden of authenticating PIP claims within the statutory time period, the court held “that the fact that a provider is not licensed is more appropriately raised as an affirmative defense by the insurer.” Id.

Here, in an argument strikingly similar to the insured’s in Ortega, Appellant contends that §627.736(7)(a) places an affirmative requirement upon the insurer to provide proof of its IME physician’s licensure before it can raise any affirmative defenses. However, just as the Ortega court found regarding §627.736(5)(d), this Court finds nothing in the plain language of § 627.736(7)(a) mandating such proof. Instead, the statute requires that the insurer obtain a report only as a statutory condition precedent to terminating benefits and says absolutely nothing requiring the insured to include proof of the IME’s licensure.

Appellant’s reliance on United Auto. Ins. Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1999) (per curiam), is misplaced because in Viles there was no evidence that the requisite report was obtained by the insurance company prior to terminating the insured’s benefits. At trial, Viles’ chiropractor testified as to the reasonableness of his bills, but the insurer offered only the records of a neurologist in response, and there was no evidence that the insurer obtained a medical report from a chiropractor before denying payment of benefits. See Viles v. United Auto. Ins. Co., 5 Fla. L. Weekly Supp. 170a (Fla. Dade Cty. Ct. 1997), aff’d, 726 So. 2d 320 (Fla. 3d DCA 1999) (appealed directly to district court pursuant to Fla. R. App. P. 9.030(b)(4)(A)).³

In affirming the trial court’s granting of Viles’ motion for a directed verdict on the basis that failure to comply with the statute rendered the termination of benefits ineffective, the Third District noted only that “[t]he statute plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment.”726 So. 2d at 321 (emphasis added). Further, the court cited with favor the Fourth District’s decision in Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1998), which noted that the procedural requirements of § 627.736(7)(a) do not indicate “a legislative intent to alter the burden of proof in a lawsuit for PIP benefits.” Viles, 726 So. 2d at 321 (quoting Derius, 723 So. 2d at 273)).

In the present matter, State Farm clearly obtained the requisite report before denying Appellant’s benefits. Further, the Court notes that Appellant attached the report to her complaint, repeatedly referred to it as the basis of State Farm’s denial of benefits, introduced portions of the report into evidence in her case-in-chief through the direct examination of Diane Wittee, and raised no objection when Appellee introduced further parts of the report in cross-examining Ms. Wittee. Appellant also neglected in her Pre-Trial statement to raise any issue for trial concerning the validity of the report under § 627.736(7)(a).

Certainly, if Appellant had any doubts concerning Dr. Campo’s licensure, she could easily have determined his licensure from a call to the appropriate licensing board or through discovery. Instead, it appears from the record that the validity of the report was never questioned until the close of the trial.⁴

If this Court were to find that §627.736(7)(a) required Appellee to provide proof of its IME physician’s licensure, it would indeed be basing its decision “on non-compliance with a non-existent statutory requirement.” Ortega, 847 So. 2d at 997. Instead, this Court finds that the statute places no requirement upon the insurer to provide such proof. Further, as “both reasonableness and necessity are essential elements of a plaintiff’s case” under the No-Fault Law, Derius, 723 So.2d at 272, this Court holds that the issue of whether the IME holds the requisite license is to be raised by the plaintiff in its pleadings.

Therefore, it is

ORDERED AND ADJUDGED that the Final Judgment and Order is AFFIRMED. It is further

ORDERED AND ADJUDGED that Appellant’s Request for Oral Argument is DENIED. It is further

ORDERED AND ADJUDGED that Appellant’s Motion for Attorney’s Fees and Costs is DENIED. It is further

ORDERED AND ADJUDGED that Appellee’s Motion for Attorney’s Fees is GRANTED. The trial court shall determine the amount of these fees.

__________________

¹In 1998, this statute was amended to add the word “valid” before “report” and to define a valid report. See 1998 Fla. Laws ch. 98-270, § 2-3 (providing that amendments to paragraph (7)(a) shall apply to new and renewal policies with an effective date on or after October 1, 1998). Also, in 2003, the word “Florida” was added before “physician.” See 2003 Fla. Laws ch. 2003-411, § 8.

²At the time of trial, the relevant statutory language read as follows:

All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a Health Care Finance Administration 1500 form, UB 92 forms, or any other standard form approved by the department for purposes of this paragraph. All billings for such services shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) in the year in which services are rendered. No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph.

§ 627.736(5)(d), Fla. Stat. (Supp. 1998).

³It is unclear from the trial court’s opinion whether the neurologist’s records were obtained prior to or after United Auto withdrew benefits. This ambiguity is not relevant, however, because even if the neurologist’s records were the basis for termination of benefits, the neurologist clearly was not licensed under the same chapter as Viles’ treating physician, a chiropractor.

⁴Appellant also takes issue with the trial court’s determination that Appellant’s counsel conceded that Dr. Campo was licensed at the time of the IME. However, this Court’s analysis is not dependent upon whether such a concession was made.

* * *