13 Fla. L. Weekly Supp. 164a

Insurance — Personal injury protection — Notice of accident — Where insurer received notice of accident prior to commencement of treatment and was fully able to investigate claim through all investigatory tools, insurer is not relieved of liability by fact that notice was not given as soon as practicable — Coverage — Medical expenses — Reasonable, related and necessary treatment — Final summary judgment is granted in favor of medical provider where provider submitted affidavits attesting that services rendered were reasonable, related and necessary; court declines to consider reports of two doctors that conducted IMEs because reports were not authenticated; and court rejects peer review report because it was not authenticated, was prepared a year and half after payment was denied, and it was not supported by physical examination — No merit to argument that section 627.736(7)(a) requirement to obtain physician report applies only to benefits withdrawn, not to those withheld

MEDLIFE HEALTH CARE INC., A/A/O MARLENIA SANCHEZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-4645 SP 26 (02). November 18, 2005. Bronwyn C. Miller, Judge. Counsel: Zack McWilliams. Craig Posner.

ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE, having come before the Court upon Plaintiff’s Motion for Final Summary Judgment and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised on the premises, the Court hereby grants Plaintiff’s motion on the following grounds:

Background:

1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits. The action arises out of an automobile accident that is alleged to have occurred on September 21, 2002. Following the alleged accident, Marlenia Sanchez sought treatment from Plaintiff, MEDLIFE HEALTH CARE, INC.

2. At all times material to this action Ms. Sanchez was covered by an insurance policy issued by UNITED AUTOMOBILE INSURANCE COMPANY (hereinafter “UNITED”).

3. Plaintiff submitted an invoice to UNITED for medical services rendered. UNITED did not pay any bills rendered. Plaintiff filed suit.

4. UNITED asserted affirmative defenses of: (1) untimely submission of two bills in violation of Section 627.736(5)(b), Florida Statutes; (2) failure to provide notice as soon as practicable in breach of the insurance policy; and (3) the services rendered were not reasonable, related, and necessary to the accident at issue.

5. On October 16, 2002, UNITED received notice of the automobile accident via an attorney representation letter.

6. On October 21, 2002, UNITED assigned a claim number.

7. UNITED received the first set of bills on October 28, 2002.

8. UNITED scheduled Ms. Sanchez for an examination under oath on January 15, 2003; Ms. Sanchez attended, accordingly.

9. UNITED scheduled Ms. Sanchez for independent medical examinations on November 29, 2002 and December 12, 2002.¹ Ms. Sanchez attended both, accordingly.

10. Both examining doctors, Dr. Carcassoni and Dr. Hochfelder, opined that no further treatment was reasonable, related and medically necessary to the accident at issue.² UNITED suspended benefits as of January 22, 2003 for chiropractic services and January 27, 2003 for medical services.

11. Plaintiff has filed affidavits of Ms. Sanchez’s treating chiropractor and medical doctor indicating that treatment rendered to Ms. Sanchez by Plaintiff was reasonable, related and necessary to the accident at issue. Plaintiff has further filed the affidavit of Plaintiff’s office manager regarding reasonableness of the bills at issue.

12. UNITED has filed a report purportedly authored by Luana Carcassoni, M.D. The report is not notarized, contains no authentication provision, and is not accompanied by an affidavit. UNITED has further filed a report purportedly authored by Robert Hochfelder, D.C. The report is unsigned, is identical to the report purportedly authored by Dr. Carcassoni, despite the fact that it is dated days later, is not notarized, contains no authentication provision, and is not accompanied by an affidavit.³ UNITED has filed a “peer review” report authored by Peter J. Millheiser, M.D. dated July 23, 2004, over a year and a half after Ms. Sanchez sought payment for her medical bills. Dr. Millheiser’s report was not accompanied by an affidavit, and not notarized. In sum, his report indicates that Ms. Sanchez should have had only three office visits to a physician. All other bills were unwarranted, in Dr. Millheiser’s opinion.

13. UNITED has further filed a deposition of Trooper Dominic Jones, indicating that he wrote Ms. Sanchez’s name down on the portion of his accident report pertaining to the owner of the motor vehicle, as opposed to the passenger portion. Trooper Jones, however, conclusively indicated he had no independent recollection of the accident or his investigation, thus, he could not recall whether or not Ms. Sanchez was a passenger.

Conclusions of Law

Summary Judgment Standard

It is established Florida law that on a motion for summary judgment, the moving party bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966).

Late Notice

UNITED raises an affirmative defense of the failure of Ms. Sanchez to notify UNITED of the accident as “soon as practicable” as required by the policy of insurance. It is undisputed that Ms. Sanchez notified UNITED of the accident prior to commencing medical treatment. “[T]he proper interpretation of the effect of prejudice in delayed notice cases [is] that while prejudice to the insurer is presumed, if the insured can demonstrate that the insurer is not prejudiced thereby, then the insurer will not be relieved of liability merely by showing that notice was not given ‘as soon as practicable.’ ” Tiedke v. Fidelity & Casualty Company of New York, 222 So. 2d 206, 209 (Fla. 1969). “Mere speculation that prejudice may exist will not suffice when lack of prejudice is clearly demonstrated.” Id.

In the instant case, Plaintiff has established that UNITED received notice prior to the commencement of claimant’s treatment. Notice was furnished on October 16, 2002 and the first set of bills was received by UNITED on October 28, 2002. After receiving notice, UNITED took no action to investigate the claim. UNITED did not even assign a claim number until October 21, 2002. Independent medical examinations were not scheduled until November 29, 2002 and December 12, 2002. The claimant appeared for an examination under oath. However, that was not scheduled until three months after notice was provided. A peer review was not performed until July 23, 2004, over a year and a half following the submission of bills. It is clear that UNITED was able to fully investigate the claim of the insured through the use of these investigative tools. Thus, Plaintiff overcomes any alleged prejudice to UNITED from the twenty-five (25) day time delay between the date of loss and the date of notice of the accident. See Bankers Insurance Company v. Macias, 475 So. 2d 1216 (Fla. 1985); West Gables Open MRI a/a/o Nelly Ladino v. United Automobile Insurance Company, Case No. 01-22799 SP 23 (Fla. 11th Jud. Cir., June 19, 2005) [12 Fla. L. Weekly Supp. 870a] (“The Court expressly finds that plaintiff has met its burden of demonstrating no prejudice whatsoever by the purportedly late notice . . . [T]he essential witness provided the insurer a statement or deposition, investigative devices were utilized by the insurer, and ‘the purposes of the notice requirement were fully satisfied.’ ”); Total Care Health Center, Inc. a/a/o Eugenio M. Mendez v. United Automobile Insurance Company, Case No. 05-158 SP 25 (Fla. 11th Jud. Cir., July12, 2005) [12 Fla. L. Weekly Supp. 967a] (“ . . . Defendant was able to fully investigate the claim inasmuch as it conducted the independent medical examination, an examination under oath, and a ‘peer review’ ”); Tiedtke v. Fidelity & Casualty Company of New York, 222 So. 2d 206 (Fla. 1969). UNITED has filed no affidavits, depositions, or sworn testimony to indicate that it was prejudiced in any way by the delay in notification. Thus, Plaintiff has met its burden in establishing there is no genuine issue of material fact regarding this issue.

RRN

Plaintiff has submitted affidavits establishing a prima facie case that services rendered were reasonable, related, and necessary to the accident at issue. The Court declines to consider the purported reports of Dr. Hochfelder and Dr. Carcassoni, as neither document is authenticated in a manner that would permit consideration pursuant to Rule 1.510, Florida Rules of Civ. P. Further, the Court finds that Dr. Millheiser’s report is not properly authenticated, as it is not notarized.

The Court also declines to consider the peer review report of Dr. Millheiser based upon the application of Section 627.736, Florida Statutes. Section 627.736(7)(a) sets forth the procedural requirements with which an insurer must comply prior to withdrawing payment for treatment rendered based upon challenges to the reasonableness, relatedness, or necessity of such treatment:

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 valid report by a Florida 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. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician. 627.36(7)(a) Florida Statutes.

This provision has been interpreted by the courts on numerous occasions. The Court is bound by the Third District’s holding in United Automobile Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1999). In Viles, an insurance company failed to produce a report signed by a physician dated prior to the denial of payments to the insured stating that the treatment was not reasonable, related, or necessary. The Third District Court of Appeal held that 627.736(7)(a) applied to such a scenario and concluded that the insurer was required to obtain a physician’s report stating that the treatment was not reasonable, related, or necessary prior to refusing to pay the additional medical bills.

The Eleventh Circuit has interpreted this statutory provision consistent with Viles, repeatedly. United Auto v. Mendoza, 11Fla. L. Weekly Supp. 299a (Fla. 11th Cir. App. 2004) (“we adhere to the view that under Florida Statutes 627.736(7)(a) a medical report stating the treatment was not reasonable, related or necessary is a condition precedent to withdrawing payments of PIP benefits”); United Automobile Insurance Company v. Professional Medical Group, as assignee of Sol Angel Hurtado, 11 Fla. L. Weekly Supp. 877a (Fla. 11th Jud. Cir. App. 2004) (“Although not dispositive, we adhere to the view that under Florida Statute 627.736(7)(a) a medical report stating that treatment was not reasonable, related or necessary is a condition precedent to withdrawing payment of PIP benefits”); United Automobile v. Michael Rose, M.D., as assignee of Juan Velazquez, 11 Fla. L. Weekly Supp. 1042a (Fla. 11th Jud. Cir. App. 2004) (“[T]o the extent United Auto was denying payment of the bill on the ground that the treatment was unreasonable or unnecessary or any ground other than the charges were too high, United Auto would have to submit a report from a physician pursuant to Florida Statute, Section 627.736(7)”).

In the instant case, UNITED failed to produce a valid report purporting to be from a physician, dated prior to the date UNITED denied payment of Plaintiff’s medical bill, stating that the physician had reviewed the treatment records and/or examined Sanchez and determined that the treatment was not reasonable, related and necessary. Neither IME report provided to the Court was appropriately authenticated for summary judgment purposes. Furthermore, even if the authentication language in Dr. Millheiser’s report properly authenticated the report, the report itself was prepared a year and a half after the medical expenses in this case were incurred and payment was denied, in contravention to the requirements of 627.736.

UNITED argues that Viles has been overruled by the Florida Supreme Court in United Automobile Insurance Company v. Rodriguez, 808 So. 2d 82 (Fla. 2001). This Court disagrees. Nowhere in the court’s discussion in Rodriguez did the court discuss the propriety of Viles. Rodriguez v. United Automobile Insurance Company concerns Florida Statute 627.736(4)(b) and the requirement that the insurer have reasonable proof it was not responsible for payments before an insurer may argue it does not have to pay interest on an overdue payment. The precise issue addressed in Rodriguez was articulated by the Florida Supreme Court as follows: “If payment for a PIP claim is “overdue” under section 627.736, Florida Statutes (1997), are the penalties set forth in the Florida Statutes the only penalties that may be levied against the insurer or is the insurer forever barred from contesting the claim?” Id. at 84-85. The Florida Supreme Court found that once liability is established, the only penalties assessed under 627.736 are attorney’s fees and late interest; the statute does not bar the insurer from contesting the claim where it fails to pay the insured’s claim within thirty days. Id. Thus, Rodriguez does not overrule Viles either explicitly or implicitly. Further, Rodriguez stands for the proposition that “reasonable proof” the insurer was not responsible for payments is not limited to the production of only a medical report under 627.736(7). Never did the court say that the insurer may deny an insured’s benefits on the basis of a peer review report not in compliance with 627.736(7)(a).

In addition to being untimely when considered in conjunction with the withholding of benefits, this court finds that Dr. Millheiser’s report is not a valid report as defined by Section 627.736(7)(a), Florida Statutes. Section 627.736(7)(a) states: “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 obtain a valid report by a Florida 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, and necessary.” A valid report is defined under 627.736(7), Florida Statutes, as “one that is prepared and signed by the physician examining the injured person or reviewing treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician.” The use of the term“and,”in conjunction with the legislative notes, appears to indicate the legislature’s intent that a records review must be supported by a physical examination. The Court does not have before it the valid report of a physician obtained prior to the suspension of benefits.

“Legislative intent, as always, is the polestar that guides a court’s inquiry under the No Fault Law.” United Automobile Insurance Company v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2002); Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000). The term “and” clarifies the legislature’s intent that a records review must be supported by a physical examination. The senate staff analysis report for senate bill 1092 further clarifies the legislative intent in amending Section 627.736(7): “[T]o help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related, or necessary.” Senate Staff Analysis and Economic Impact Statement, dated March 26, 2001, Senate Bill 1092. “Statutes should not be interpreted in a manner that would deem the legislative action useless.” U.S. Security Insurance Co. v. Cahuasqui, 760 So. 2d 1101, 1104 (Fla. 3d DCA 2000). “The primary source for determining legislative intent when construing a statute is the language chosen by the legislature to express its intent.” Donato v. American Telephone and Telegraph Co., 767 So. 2d 1146, 1150 (Fla. 2000). A plain reading of the statute, in conjunction with the Senate Staff Analysis and Economic Impact Statement, indicates that Dr. Millheiser’s report is not a valid report, as it is not factually supported by a physical examination of Sanchez.

Finally, UNITED argues that Section 627.736(7)(a) applies only to benefits that are “withdrawn” by the insured, not those that are “withheld.” To accept such an interpretation of the statute would lead to an absurd or ridiculous result. Insurers would be encouraged to withhold payment under all circumstances so as to circumvent the intent of the legislature in setting a procedural requirement. It is well-settled that statutes will not be interpreted in a manner that leads to an unreasonable or ridiculous result or a result obviously not intended, by the legislature. Drury v. Harding, 461 So. 2d 104 (Fla. 1984).

Plaintiff has met its burden in establishing that treatment rendered was reasonable, related, and necessary to the accident at issue. Defendant has produced to competent evidence to establish the existence of a genuine issue of material fact.

WHEREFORE, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.

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¹A chiropractor performed the November 29, 2002 examination and a medical doctor performed the December 12, 2002 examination.

²It was noted by the Court that both doctors issued identical reports despite their different specialties. However, Dr. Hochfelder’s report is neither signed by him nor notarized. Furthermore, both doctors have the same address listed on the top of the reports.

³The Court will not address the whether or not there was an effort to commit fraud upon the Court, as the issue is moot upon the granting of final summary judgment. However, dismissal is an available remedy for knowingly submitting forged or altered documents with the intent to deceive the court. Bob Montgomery Real Estate v. Djokic, 858 So.2d 371, 372 (Fla. 4th DCA 2003).