13 Fla. L. Weekly Supp. 1001a
Insurance — Personal injury protection — Independent medical examination — Failure to attend — Insured’s failure to attend IME did not relieve insurer from paying medical provider’s bills that were received prior to missed IME, including bills received less than thirty days prior to missed IME
MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., as assignee for MAIKE LINARES, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-1641 CC24. July 13, 2006. Darrin P. Gayles, 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 July 13, 2006 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 October 18, 2002.
2. The Affidavit of Defendant’s Litigation Adjuster, Jorge Urtubey, filed in response to Plaintiff’s initial motion for summary judgment (RRN) and that payout ledger filed by United Automobile Insurance Company, (hereafter United) set forth that United received Plaintiff’s HCFA-1500 claim form on November 8, 2002.
3. The unexecuted affidavit of Litigation Adjuster Luisa Gonzalez, and IME notices filed by United show that United scheduled compulsory medical examinations, referred to by United as “Independent Medical Examinations” (hereafter I.M.E.) to take place on November 19, 2002 and after the first I.M.E. appointment was missed a second I.M.E. was scheduled for December 5, 2002. The Plaintiff stipulates that Maike Linares did not attend the subject I.M.E. examinations.
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 eleven (11) 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 I.M.E. no show, but also payment of medical bills for dates of service before the I.M.E. no-show when the bill is received subsequent to the I.M.E. 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 any 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.
10. In Millennium Diagnostic a/a/o Adelina Lopez v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 1086a, (Fla. 11th Jud. Cir., Miami-Dade County, 2005) this Court, under the tenure of the Honorable, Ada Pozo-Revilla, adjudicated this same issue, in another lawsuit between the subject parties, Millennium and United. In Millennium a/a/o Adelina Lopez, the Court ruled that “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.
11. Subsequent to this Court’s ruling in Millennium a/a/o Lopez, the Eleventh Circuit, sitting in its appellate capacity, reached the same ruling, in United Automobile Insurance Company, v. Eduardo Garrido, D.C., a/a/o Elier Frometa, 13 Fla. L. Weekly Supp. 434a, (11th Judicial Circuit, Appellate, Miami-Dade, 2006). The Frometa Court, affirmed the trial judge’s final summary judgment for the medical provider where medical bills were received on July 11, and August 6, 2002, and I.M.E. appointments where missed on July 18, and August 8, 2002. Id.
12. The Frometa Court explained “This Court finds that the holdings of Rodriguez and Silva are not in conflict with the plain meaning of Section 627.736(4) of the Florida Statutes. Therefore we find that the benefits are due immediately as the loss accrues, and upon receipt of the bill or reasonable proof of loss by the insurer.” Id.
CONCLUSION OF LAW
13. The assignor’s failure to attend an independent medical examination on November 19, 2002 and December 5, 2002 did not relieve United from paying Millennium’s bill that was received on November 8, 2002.
WHEREFORE, the Plaintiff’s Motion for Summary Judgment on Defendant’s IME no-show affirmative defense is granted.
