13 Fla. L. Weekly Supp. 203a

Insurance — Personal injury protection — Coverage — Medical expenses — Second opinion — Physician who examined insured and provided second opinion on request of treating physician provided medical service compensable under PIP statutes

GARY H. WEISS, D.C., As assignee of NANCY CASTILLO, Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-4293. October 18, 2005. John R. Sloop, Judge. Counsel: Roy J. Smith, IV, Weiss Legal Group, P.A., Maitland. R. Scott Simmons, Law Offices of Capito and Polk, Lake Mary.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

This cause came before the Court on the Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s Second Affirmative Defense. The Court has considered the motion, being fully advised in its premises, and after hearing oral argument of the parties, the Court finds as follows:

1. This is a claim by the Plaintiff, a chiropractor, against the Defendant insurance company for PIP benefits for services provided to Defendant’s insured, Nancy Castillo.

2. More specifically, Dr. Weiss saw Ms. Castillo on September 23, 2004 at which time he conducted an evaluation of Ms. Castillo, the code for which was CPT code 99204. (See the July 12, 2005 affidavit of Dr. Gary H. Weiss filed with this Court on July 18, 2005).

3. Dr. Weiss saw Ms. Castillo as a referral from Dr. Ihan Rodriguez, who was the chiropractic physician who was providing most of Ms. Castillos’ treatment as a result of the injuries she sustained. According to Dr. Rodriguez, he sent Ms. Castillo to Dr. Weiss for a second opinion because Ms. Castillo was responding to treatment but not the way that Dr. Rodriguez wanted her to. (See the transcript of the August 2, 2005 deposition of Dr. Ihan Rodriguez, page 10, line 25 through page 11, line 2).

4. According to the deposition testimony of Dr. Weiss, he evaluated Ms. Castillo for approximately an hour and a half (See the transcript of the April 22, 2005 deposition of Dr. Gary H. Weiss, page 20, line 5 through page 9). He further listed some of the tests he performed (page 21, line 7 through page 25, line 18). Notably, Dr. Weiss, during his evaluation of Ms. Castillo, palpated Ms. Castillo tempromandibular joint and noted pain with palpation and an audible click. (page 23, line 12 through 15).

5. Dr. Rodriguez, in his deposition, also spoke about this element of Dr. Weiss’s examination. Dr. Rodriguez noted that while Ms. Castillo consistently complained of headache as a result of the automobile accident, before Ms. Castillo was seen by Dr. Weiss, Dr. Rodriguez had not diagnosed Ms. Castillo with TMJ syndrome. (See the transcript of the August 2, 2005 deposition of Dr. Ihan Rodriguez, page 39, line 3 through 15).

6. According to Dr. Rodriguez, to test for TMJ syndrome a health care provider palpates the mandibular joint. If this causes an audible click the health care provider has found objective evidence of TMJ syndrome. (See the transcript of the August 2, 2005 deposition of Dr. Ihan Rodriguez, page 41, line 7 through 13). Further, Dr. Rodriguez testified that TMJ syndrome can cause headaches (See page 41 line 14 through 16).

7. Dr. Rodriguez further testified that after he received the report of Dr. Weiss from the second opinion he performed, he noted that Dr. Weiss had noted an audible click upon palpation of Ms. Castillo’s tempromandibular joint. He found it highly probable that an element of Ms. Castillo’s continued headaches was caused by the TMJ syndrome and as such recommended to Ms. Castillo that she consult with a TMJ expert. (See the transcript of the August 2, 2005 deposition of Dr. Ihan Rodriguez, page 41, line 17 through page 42, line 20).

8. Defendant has indicated that it is not challenging whether or not Dr. Weiss provided a service to Ms. Castillo or whether the code, 99204, was the proper code to utilize for the service or not. Instead, Defendant has indicated that the only basis for its refusal to pay Dr. Weiss for the service he provided was an Independent Medical Examination. (See the transcript of the April 13, 2005 deposition of Defendant’s medical claims representative, Jeff Helbe, page 7, line 19 through page 9, line 22).

9. Defendant originally raised only one affirmative defense; that the service provided by Plaintiff was unreasonable, unrelated and unnecessary in relation to the automobile accident based on an opinion by Defendant’s expert who performed a compulsory medical examination.

10. On May 3, 2005, Defendant filed an amended answer and affirmative defenses raising the following additional affirmative defense:

The Plaintiff has not suffered damage which is actionable under Florida Statute 627.736. Specifically, the Plaintiff did not render any treatment or provide a service which may be charged to Nationwide under the PIP statute.

11. Plaintiff then filed “Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s Second Affirmative Defense” seeking to eliminate Defendant’s second affirmative defense.

12. Defendant, on August 22, 2005, filed “Defendant’s Motion for Summary Judgment” based on its second affirmative defense. In more detail Defendant claims that since Dr. Weiss’s consultation and examination was not “treatment” it cannot be covered by PIP. Alternatively, Defendant attempts to characterize Dr. Weiss’s evaluation as an Independent Medical Examination and then concludes that Defendant should not be responsible for paying for an Independent Medical Examination.

IT IS HEREBY ORDERED AND ADJUDGED:

a. That the Florida No-Fault laws should be liberally construed in favor of the insured. See Viles v. United Auto Ins. Co., 5 Fla. L. Weekly Supp. 170 (Fla. 11th Cir Ct. Nov. 6, 1997).

b. Contrary to Defendant’s claims, the service provided by Dr. Weiss does constitute a medical service which is compensable under Florida Statutes 627.736 as a medical treatment or medical service.

c. Defendant’s Motion for Summary Judgment is hereby DENIED.

d. Plaintiff’s Motion for Partial Summary Judgment as to Defendant’s Second Affirmative Defense is hereby GRANTED.