13 Fla. L. Weekly Supp. 891a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related and necessary treatment — Summary judgment — Opposing affidavit — Where medical provider sustained initial burden of establishing that medical treatment was reasonable, related and medically necessary though affidavits of medical provider and owner of billing company, opposing peer review which was not factually supported by independent medical examination was not valid report that could form basis for denial of benefits or be considered as record evidence to oppose motion for summary judgment, and insurer has provided no evidence that valid report was in its possession when benefits were denied, provider’s motion for summary judgment is granted
REGINALD BOTTARI, D.C., P.A. (Maria Medina), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 03-5860 SP 25 (2). June 7, 2006. Lawrence D. King, Judge. Counsel: Stuart L. Koenigsberg, for Plaintiff. Majid Vossoughi, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff’s Motion for Summary Judgment was heard before this Court on Friday, June 2, 2006 at 3:30 p.m. at the Coral Gables District Courthouse, 3100 Ponce de Leon Boulevard, Coral Gables, Florida 33146. Stuart L. Koenigsberg, Esq. appeared on behalf of the Plaintiff, REGINALD BOTTARI, D.C., P.A. Majid Vossoughi, Esq. appeared on behalf of Defendant, UNITED AUTOMOBILE INSURANCE COMPANY. The court reviewed the evidence of record filed by the parties which consisting of a) an affidavit of Gina Bottari, b) an affidavit of Reginald A. Bottari, D.C., and c) an affidavit and attached Peer Review report of Michael Weinrab, D.C. dated December 2, 2002. After hearing argument of counsel, reviewing the aforesaid evidence and otherwise being advised as to the premises of Plaintiff’s motion, this Court makes the following factual findings and conclusions of law.
FACTUAL FINDINGS
1. Maria Medina was involved in an automobile accident which occurred on February 1, 2002.
2. Medina at the time was covered under a policy of insurance issued by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, which afforded no-fault insurance coverage.
3. Medina was injured in the accident and sought care and treatment from the Chiropractic office of REGINALD A. BOTTARI, D.C.
4. Dr. Bottari initially examined Medina on February 6, 2002 and diagnosed a hyperflexion/extension injury to the cervical spine, a sprain/strain of the thoracic and lumbar spines, parathesia to the upper extremities, injury to the trunk, posttraumatic stress syndrome and a partial tear of the left SCM muscle along with injuries to the shoulders, hips and thighs. Dr. Bottari related these injuries to the February 1, 2002 motor vehicle accident.
5. Medina received chiropractic care from February 6, 2002 through April 23, 2002. Treatment consisted of spinal manipulations, joint extremity manipulations, alternating cold and hot packs, therapeutic massage, flexion/distraction therapy, interferrential current, myofascial release therapy, ultrasound, range of motion and home stretching exercises.
6. Dr. Bottari expressed the opinion that the above treatment was medically necessary and related to the injuries sustained in Medina’s February 1, 2002 accident.
7. REGINALD BOTTARI, D.C., P.A. sent UNITED AUTOMOBILE INSURANCE COMPANY a notice of initiation of treatment on February 15, 2002 with the assignment of benefits obtained from Maria Medina, an attending physician’s report, and a police report.
8. On April 9, 2002, REGINALD BOTTARI, D.C., P.A. furnished UNITED AUTOMOBILE INSURANCE COMPANY with their initial proof of claim for services rendered from February 6, 2002 until April 5, 2002 with HCFA 1500 bills totaling $8,318.00, physician progress notes, Dr. Bottari’s initial narrative report, a functional capacity report and assignment of benefits were furnished to Defendant, who received same on April 19, 2002.
9. On May 10, 2002, Plaintiff sent a second claims package to UNITED AUTOMOBILE INSURANCE COMPANY seeking payment of $1,649.00 for his care and treatment rendered to Ms. Medina from April 5 through April 23, 2002. HCFA 1500 bills and Dr. Bottari’s records were included.
10. The affidavit testimony of Gina Bottari establishes that the charges for Plaintiff’s care and treatment was reasonable. She is the owner of Dynamic Management Consultants, a medical billing company, and has extensive experience with medical billing and pricing. The Current Procedural Terminology, published by the American Medical Association was used to code the specific procedures rendered by REGINALD A. BOTTARI, D.C., P.A. and the ADP/Context fee schedule published for Medi-Claim of Florida was used as a basis for their charges. Ms. Bottari stated that ADP/Context’s pricing represents the usual and customary charges for chiropractic care in Miami Dade County, and she has compared their prices to itemized explanation of benefit payout forms received by other insurance companies. In her opinion, REGINALD A. BOTTARI, D.C., P.A.’s charges of $9,967.00 were reasonable.
11. Prior to this hearing, Defendant’s remaining affirmative defense pertaining the alleged unreasonable refusal of Medina to submit to an independent medical examination was stricken pursuant to Fla.R.Civ.P. 1.140 on the authority of United Automobile Insurance Company v. Eduardo J. Garrido, D.C., Case No. 05-214 AP (11th Cir. App. 2005) [13 Fla. L. Weekly Supp. 434a],which held that the Defendant could not bar payment of $8,318.00 in medical benefits received prior to the date of an alleged unreasonable refusal to submit to an independent medical examination. This Court’s order dated May 16, 2006 is adopted and incorporated by reference to this Order.
12. Defendant submitted a Peer Review and affidavit of Michael Weinrab, D.C. dated December 2, 2002.
LEGAL ANALYSIS
13. Fla.R.Civ.P. 1.510 holds that judgment
“shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions filed together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
14. Latour v. Stromberg-Carlson Leasing, 335 So.2d 600 (Fla. 3rd DCA 1976) holds that:
“If the movant sustains his initial burden of proof, the opponent then has the burden of coming forward with evidence establishing genuine material factual issues. Where as here the opponent fails to come forward with any affidavit or other proof in opposition to the motion for summary judgment, the movant need only establish a prima facie case, whereupon the court may enter its summary judgment.”
See Also Harvey v. Haley, 175 So.2d 780 (Fla. 1965); Landers v. Milton, 370 So.2d 368 (Fla. 1976).
15. Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4 thDCA 1998) sets forth Plaintiff’s burden of proof in establishing a prima facia case for no fault insurance benefits. Derius requires Plaintiff to prove that their medical services are necessary and that the bills for their services are reasonable.
16. Based on my review of the record evidence in this case, this Court finds that REGINALD A. BOTTARI, D.C., P.A., sustained their initial burden of proving that the medical care provided to Maria Medina was necessary and that their charges totaling $9,967.00 were reasonable Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1998).
17. The next determination is whether Defendant, UNITED AUTOMOBILE INSURANCE has provided any legally admissible evidence of record that would create a material factual issue in this case. Latour v. Stromberg-Carlson Leasing, 335 So.2d 600 (Fla. 3rd DCA 1976).
18. The Peer Review of Dr. Weinrab cannot legally form the basis for which an insurance company can deny payment of medical care in this case as it is not a “valid” report pursuant to Florida Statutes 627.736(7)(a), which sets forth the procedural requirements that govern the admissibility of reports that an insurer must comply with to withdraw payment on the basis that treatment is not reasonable, related, or necessary:
Florida Statutes 627.736(7)(a)
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 [independent medical] examination and treatment records if reviewed and that has not been modified by anyone other than the physician.” 627.736(7)(a) Florida Statutes. [emphasis added].
19. The Statute clearly requires that in order for a report not performed by an examining physician to be valid, it must be “factually supported by the [Independent Medical] examination.”
20. The Senate Staff Analysis and Economic Impact Statement, dated March 26, 2001 clearly articulated the Florida Legislature’s intent that a valid report be based on a physical examination of the patient when they amended the No-Fault Statute to require a “Valid Report” as set forth above. The legislative intent in amending Section 627.736(7) set forth by the Florida Senate was
“[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.”
The proposed amendment required that if a physician is reviewing medical records, his review must now be “factually supported” by the IME examination report.
21. “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” before the phrase “factually supported by the examination” clarifies the legislature’s intent that a records review must be supported by a physical examination. Senate Staff Analysis and Economic Impact Statement, March 26, 2001, See also Senate Bill 1092.
22. “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).
23. A plain reading of §627.736(7) Florida Statutes, in conjunction with the Senate Staff Analysis and Economic Impact Statement, indicates that Dr. Weinrab’s report is not a valid report because it is not “factually supported” by a independent medical examination.
24. Because the peer review report of Michael Weinrab, D.C. is not a “valid” report, it cannot legally form the basis for Defendant’s denial of payment of the medical benefits at issue in this case, notwithstanding the fact that the report in addition cannot be considered by this Court as record evidence to oppose a motion for summary judgment.
25. Further, the Third District Court of Appeal in United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1999) has interpreted §627.736(7)(a) Fla. Stat. to require that an insurance company seeking to deny payment of no-fault services on this basis must have:
“within their possession, a medical report from a physician licensed under the same chapter as the physician involved in the care sought to be withdrawn stating that it is not reasonable, related or necessary before care is denied.”
26. Defendant has provided no evidence to this Court establishing that a valid report meeting the requirements of §627.736(7)(a) Fla. Stat. was in their possession when Plaintiff’s care was denied on this basis.
CONCLUSION
The record evidence before this Court, when viewed in the light most favorable to the Defendant non-moving party, contains no genuine issues of material facts concerning the existence of an accident, availability of insurance coverage under Defendant’s automobile policy issued to Maria Medina, the validity of the assignment of benefits, the medical necessity of the care and treatment rendered by the Plaintiff, the reasonableness of the charges for Plaintiff’s medical care or any other issues concerning Plaintiff’s prima facie case or collateral issues such as whether the care and treatment was lawfully rendered. Defendant’s affirmative defenses, as pled, fail to establish any reasonable proof that Defendant is not responsible for the payment of $8,318.00 in Plaintiff’s bills received prior to the date of the alleged unreasonable refusal to submit to an independent medical examination. In light of the foregoing, it is Ordered and Adjudged that Plaintiff’s Motion for Final Summary Judgment is GRANTED as to the $8,318.00 in bills received prior to the date of the alleged unreasonable refusal. The sole remaining issue for trial, if Plaintiff elects to go forward is whether the alleged unreasonable refusal to attend the independent medical examination scheduled in this case would bar payment of the remaining $1,649.00 in care and treatment rendered to Ms. Medina from April 5 through April 23, 2002 received after the alleged IME appointment date.
