13 Fla. L. Weekly Supp. 1002a
Insurance — Personal injury protection — Coverage — Medical expenses — MRI — Where affidavit of medical provider attests that MRI was requested by provider and was reasonable, related and necessary as result of accident, and insurer has not filed opposing affidavit, provider’s charges for MRI are payable at statutory fee schedule — Fact that HCFA form submitted to insurer claimed amount greater than fee schedule allows is not defense to payment — Independent medical examination — Failure to attend — Where insurer set two dates for IME and admits that insured never received notice of first date and insured’s counsel never received notice of second date, insurer failed to provide legally sufficient notice of IMEs, and failure to attend IMEs is attributable to insurer and not unreasonable
OPEN MRI OF MIAMI-DADE, LTD., (a/s/o Dionicia Romero), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 05-9523 SP 23 (2). July 20, 2006. Caryn Canner Schwartz, Judge. Counsel: Kenneth J. Dorchak, North Miami, for Plaintiff.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE having come before the Court on July 20, 2006 on the Plaintiff’s Motion for Final Summary Judgment, after hearing argument of the parties and being fully advised of the premises thereof, the Court finds as follows:
1. That the insured Dionicia Romero was involved in an automobile accident on August 12, 2002.
2. On the date of said accident the Defendant insured Dionicia Romero for PIP insurance benefits.
3. On September 24, 2002 the Plaintiff rendered MRI services to Dionicia Romero. That the Plaintiff received from Dionicia Romero an assignment of benefits.
4. Upon the sworn affidavit of Dr. Brett Weinstein, D.C. the Court finds that the MRI was requested by Dr. Weinstein, D.C. and that the MRI services were reasonable, related and necessary as a result of the accident and injuries incurred thereby by Dionicia Romero.
5. Defendant has not filed an affidavit from an expert in opposition to the affidavit of Dr. Weinstein, D.C.
6. That Plaintiff’s charges are payable at the MRI fee schedule set forth in Section 627.736(5)(b)(5), Fla. Stat., for CPT codes 73721. The Plaintiff is entitled to payment of 80% of 175% of 2001 Medicare Part B or $903.86.
The Court finds that the fact that the HCFA form submitted to the Defendant sets forth an amount greater than the fee schedule does not provide a defense to payment.
3. With regard to the IME no show defense, the Court finds that based upon the facts in the records that said defense is unavailable to the Defendant as amatter of law. There were two dates set for the IME, September 26, 2002 and October 17, 2002. The Defendant, through its adjuster, admitted the insured never received notice of the September 26, 2002 examination. The Defendant, through its adjuster, admitted that the notice of the October 17, 2002 examination was not provided to the Plaintiff’s attorney as required. Accordingly, the Defendant has failed to provide legally sufficient notice of the requested medical examination. Where an insurer has notice that the insured was represented by counsel and where insurer fails to give notice of medical exam to attorney, the failure to attend the medical exam is attributable to the insurer and is not unreasonable refusal. American Skyhawk Insurance Company v. Chacon, 8 Fla. L. Weekly Supp. 593a (11th Cir. Court App. Div.). See also Robinson v. Treasurer of the State of Florida,676 So.2d 1378 (Fla. 2nd DCA 1996) wherein the Court held that default order revoking license had to be vacated when the Department was aware that licensee was represented by counsel and the Department failed to provide notice to counsel. See also Miami Chiropractic Associates, Inc. (a/a/o Dypson) v. United Automobile Insurance Company,12 Fla. L. Weekly Supp. 992a, where the Trial Court ruled that where insurer received letter of representation prior to sending notice of EUO and where insurer failed to notify attorney of EUO that failure to appear at EUO was not unreasonable.
The Court finding that there remains no issue of material fact to be resolved in this matter, based upon the foregoing it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is Granted.
IT IS HEREBY ORDERED AND ADJUDGED that a final judgment is hereby entered in favor of the Plaintiff, OPEN MRI OF MIAMI-DADE, LTD. (as assignee of Dionicia Romero) of 19082 N.E. 29th Avenue, Aveutura, Florida 33180, and the Plaintiff shall recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, FEI # 65-0415688, the amount of $903.86, as outstanding PIP benefits, and the amount of $297.91(1337 days — 11/21/02-7/20/06 at 9% which was the rate in effect when the bills became overdue) as statutory interest, for a total judgment against the Defendant in the amount of $1,201.59 which amount shall bear interest at the rate of 9% per annum and for which let execution issue.
IT IS FURTHER ORDERED AND ADJUDGED that the Court finds that the Plaintiff is entitled to an award of reasonable attorney’s fees and costs and shall reserve jurisdiction over this matter for purposes of determining the amount of such fees and costs.
