13 Fla. L. Weekly Supp. 1088a
Insurance — Personal injury protection — Coverage — Medical expenses — Withdrawal of benefits — Peer review report — Where insurer denied payment for nerve conduction velocity test based on peer review report that was based solely on conclusions drawn from examination of records, insurer failed to obtain valid report allowing withdrawal of payment — Medical provider’s motion for summary judgment granted
RHODES & ANDERSON, D.C., P.A. d/b/a VENICE CHIROPRACTIC CENTER (a/a/o DARREN J. EDMONDS), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County, Small Claims Civil Division. Case No. 2005-SC-00750-SC. August 29, 2006. David L. Denkin, Judge. Counsel: Virlyn B. Moore, III, Venice.
Circuit Court affirmed at 14 Fla. L. Weekly Supp. 699a.
Circuit Court Order QUASHED by District Court of Appeal at 33 Fla. L. Weekly D839a.
ORDER GRANTING PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT
THIS MATTER has come before this court pursuant to Plaintiff’s Amended Motion for Summary Judgment on August 24, 2006. Both parties were well represented and after hearing argument of counsel, and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:
Findings of Fact
The Plaintiff has filed suit to recover payment for treatment rendered to State Farm’s insured. At issue are ‘Nerve Conduction Velocity’ (NCV) tests performed on September 23, 2004.
The insured was involved in an automobile accident on or about May 7, 2004. On May 7, 2004, Plaintiff accepted an assignment of benefits from the insured and began providing medical services to the insured. After providing medical services to the insured, and in response to Plaintiff submitting notices of claim, the defendant paid Plaintiff $1,496.00 for medical services provided by Plaintiff to the insured. On September 23, 2004, after the aforementioned medical services were paid by Defendant, the Plaintiff rendered medical services (nerve conduction velocity (NCV) tests). On October 4, 2004, Plaintiff submitted to the Defendant an approved HCFA form along with other necessary documentation regarding the NCV testing. On November 15, 2004, the Defendant allegedly “withdrew payment” for the NCV tests based upon on a paper peer review report. On January 12, 2005, the Plaintiff sent the Defendant a Fifteen Day Demand Letter (asrequired by §627.736(11), Fla. Stat. (2003) requesting payment of $244.80 plus penalty and interest. Defendant provided no payment for these tests.
Legal Analysis and Conclusions of Law
Itis well settled that the moving party, on a Motion for Summary Judgment, bears the burden of proving the nonexistence of any genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). If that burden is met then the nonmoving party must present competent evidence demonstrating the existence of a genuine issue of material fact.
Plaintiff has established (see plaintiff’s affidavit exhibit “A”) that the medical expenses referred to in his complaint were reasonable, necessary and related to the accident.
The Defendant denied payment based on a paper peer review report of Bruce L. Thomas, D.C. The report was based solely on his conclusions from the examination of records. Under §627.736(7), Fla. Stat. (2003), the Defendant cannot withdraw payment from the Plaintiff unless the insurer obtains a valid report as defined by subsection (a). United v. Wechsel, 12 Fla. L. Weekly Supp. 1035 (Fla. 11th Cir. Ct. 2005). This was not done.
The denial of payment by Defendant is found to be awithdrawal of payment as contemplated by §627.736(7), Fla. Stat. (2003). United States Auto Insurance Company v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1999); Derius v. Allstate Indemnity Co., 723 So.2d 721 (Fla. 4th DCA 1998).
Plaintiff’s Motion for Summary Judgment is GRANTED. The Court reserves jurisdiction to consider the taxation of costs and fees.
