14 Fla. L. Weekly Supp. 699a
Insurance — Personal injury protection — Trial court properly directed verdict in favor of medical provider in actions for PIP benefits where insurer based denial of benefits solely on paper peer review report without medical report from physician who actually examined insureds — Denial of payment is withdrawal of payment to which report requirement of section 627.736(7) applies
QUASHED at 33 Fla. L. Weekly D839a
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. RHODES & ANDERSON, D.C., P.A., d/b/a VENICE CHIROPRACTIC CENTER, (a/a/o DARREN J. EDMONDS), Appellee. Circuit Court, 12th Judicial Circuit (Appellate) in and for Sarasota County. Case No. 2006-AP-9749-NC. L.C. Case No. 2005-SC-750-SC. Appeal Nos. 2006-AP-9931-NC 2006-AP-9928-NC Consolidated into 2006-AP-9749-NC. June 1, 2007. Appeal from the Sarasota County Court; David L. Denkin, County Judge. Counsel: Robert H. Oxendine, Oxendine & Oxendine, P.A., Tampa, for Appellant. Virlyn Moore, Venice, for Appellee.
[County court order published at 13 Fla. L. Weekly 1088a.]
OPINIONS
(MCDONALD, J.) This appeal arises from personal injury protection (PIP) actions. There were three separate actions filed in the County Court of the Twelfth Judicial Circuit, Sarasota County: Rhodes & Anderson D.C., P.A., d/b/a Venice Chiropractic Center (a/a/o Darren Edmonds) v. State Farm Mutual Automobile Insurance Company, Case Number 2005-SC-00750-SC [13 Fla. L. Weekly Supp. 1088a], Rhodes & Anderson, D.C., P.A., d/b/a Venice Chiropractic Center (a/a/o Nicole Villa) v. State Farm Mutual Automobile Insurance Company, Case Number 2005-SC-00735-SC, Rhodes & Anderson, D.C., P.A., d/b/a Venice Chiropractic Center (a/a/o Jarek Szalbirak) v. State Farm Mutual Automobile Insurance Company, Case Number 2004-SC-006317-SC. These actions have been consolidated on appeal. Appellant, State Farm Mutual Automobile Insurance Company, requests this court reverse the trial court’s Final Summary Judgments in favor of the Appellee, Rhodes & Anderson, D.C., P.A. For the reasons discussed below, this court hereby AFFIRMS the trial court’s rulings in all of the lower cases that were consolidated into the instant appeal.
The lower court’s findings of fact, as well as its legal analysis and conclusions of law, in its Orders Granting Plaintiff’s Amended Motion for Summary Judgment with respect to the three cases consolidated into the instant appeal included findings as follows.
EDMONDS
The Appellee filed suit to recover payment for treatment rendered to the Appellant’s insured. At issue are two (2) sets of 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, the Appellee 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 the Appellee submitting notices of claim, the Appellant paid Plaintiff $1,496.00 for medical services provided by the Appellee to the insured. On September 23, 2004, after the aforementioned medical services were paid by the Appellant, the Plaintiff rendered medical services (NCV tests). On October 4, 2004, the Appellee submitted to the Appellant an approved HCFA form along with other documentation regarding the NCV testing. On November 15, 2004, the Appellant allegedly “withdrew payment” for the NCV tests based on a paper peer review report. On January 12, 2005, the Appellee sent the Defendant a Fifteen Day Demand Letter as required by §627.736(11), Fla. Stat. (2003) requesting payment of $244.80 plus penalty and interest. The Appellant provided no payment for these tests. The Appellant 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.
VILLA
The Plaintiff filed suit to recover payment for treatment rendered to the Appellant’s insured. At issue are two (2) sets of Nerve Conduction Velocity (NCV) tests performed on September 2, 2004.
The insured was involved in an automobile accident on or about May 19, 2004. On June 30, 2004, the Appellee 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 the Appellee submitting notices of claim, the Appellant paid the Appellee $1,400.00 for medical services provided by the Appellee to the insured. On September 2, 2004, after the aforementioned medical services were paid by the Appellant, the Appellee rendered medical services (NCV tests). On September 24, 2004, the Appellee submitted to the Appellant an approved HCFA form along with other documentation regarding the NCV testing. On November 3, 2004, the Appellant allegedly “withdrew payment” for the NCV tests based on a paper peer review report. On January 5, 2005, the Appellee sent the Defendant a Fifteen Day Demand Letter asrequired by §627.736(11), Fla. Stat. (2003) requesting payment of $286.40 plus penalty and interest. The Appellant provided no payment for these tests. The Appellant denied payment based on a paper peer review report of Marvin Merritt, Chiropractic Physician. The report was based solely on his conclusions from the examination of records.
SZALBIRAK
The Appellee filed suit to recover payment for treatment rendered to the Appellant’s insured. At issue are Nerve Conduction Velocity (NCV) tests and a thermogram performed on December 4, 2003 and December 5, 2003.
The insured was involved in an automobile accident on or about July 28, 2003. On August 1, 2003, the Appellee 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 the Appellee submitting notices of claim, the Appellant paid the Appellee $1,662.00 for medical services provided by the Appellee to the insured. On December 4, 2003 and December 5, 2003, after the aforementioned medical services were paid by the Appellant, the Appellee rendered medical services (NCV tests and a thermogram). On January 2, 2004, the Appellee submitted to the Appellant an approved HCFA form along with other documentation regarding the NCV testing. On February 27, 2004, the Appellant allegedly “withdrew payment” for the NCV tests and the thermogram based on a paper peer review report. On May 13, 2004, the Appellee sent the Appellant a Fifteen Day Demand Letter asrequired by §627.736(11), Fla. Stat. (2003) requesting payment of $1,568.50 plus penalty and interest. The Appellant provided no payment for these tests. The Appellant 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.
Facts
This appeal seeks review of the lower court’s Order granting the Appellee’s Amended Motion for Summary Judgment. The standard of review of a trial court’s order on a motion for summary judgment is de novo. See Menendez v. The Palms West Condominium Association, 736 So.2d 58, 60-61 (Fla. 1st DCA 1999). The common question presented in these cases is whether an insurer may withhold payment of a medical bill for treatment based upon a paper peer review report absent a medical report from a physician who actually examined the patient.
Section 627.736(7)(a), Fla. Stat., provides that “[a]n 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.” Therefore, if the insurer withdrew payment from the medical provider, when the mental or physical condition of an injured person covered by personal injury protection was material to any claim, without having a valid report as provided by §627.736(7)(a), Fla. Stat., the insurer may not argue that treatment rendered by the provider was not reasonable, related or necessary. In United States Auto Insurance Company v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1999), the court held that an insurer must obtain a report under § 627.736(7)(a) before withdrawing or denying further medical payments. See Viles at 320.
In the cases at bar, the insurer did withdraw payment from the provider without the consent of the injured person covered by personal injury protection, and without first obtaining a valid report as prescribed by law. In each case, the insurer relied on a paper peer review report from physicians examining the insureds’ medical records, but never physically examining the insureds themselves.
Argument
Appellee’s argument with regard to the invalidity of the paper peer review reports in these cases is supported by the plain meaning of the statute. Section 627.736(7)(a), Fla. Stat., defines a valid report as: “. . .onethat 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.” Here, the peer review doctors did not examine the insured and therefore their reports cannot provide the Appellant the foundation required under the statute.
The Appellant cites United Automobile Insurance Company v. Rodriguez, 808 So.2d 82 (Fla. 2001), for the proposition that §637.736(4), Fla. Stat., does not require that an insurer obtain a medical report of a similarly licensed physician in order to maintain a defense in a PIP action under this Section. In Rodriguez, the Court held that where an insurer fails to pay a claim within thirty days, the insurer is only subject to interest and attorney’s fees. See Rodriguez at 87.
The Supreme Court’s decision in Rodriguez does not stand for the proposition that an insurer may deny a claim based on medical opinion without a valid physician’s report. Instead, Rodriguez only stands for the proposition that a physician’s report under § 627.736(7)(a) is not an absolute requirement within thirty days. Rodriguez at82. Viles stands in harmony with Rodriguez. Viles simply says that an insurer must comply with § 627.736(7)(a) before denying payment based on medical opinion, but supports the insurer’s ability to raise defenses of non-compliance.
Section 627.736(4), Fla. Stat., states that: “. . .notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.” Section 627.736(4), however, does not establish what constitutes “reasonable proof”. However, when this Section is read in pari materia with §627.736(7)(a), the standard of “reasonable proof” becomes evident. Section 627.736(7)(a) states that:
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.
The moving party bears the burden, in a motion for summary judgment, of proving the nonexistence of a genuine issue of material fact. See Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). The Appellant argues that §627.736(7), Fla. Stat., only applies when an insurer attempts to terminate or withdraw the treatment authorization of a provider, whereas the cases at bar concern the denial of specific individual charges, which, the Appellant suggests, is permissible under §627.736(4), Fla. Stat. The Appellant argues that in these cases, it did not attempt to withdraw or terminate the treatment authorization of the provider. This court concurs with the trial’s court’s legal analysis and conclusion of law, when it stated in its Order that: “[t]he denial of payment by [Appellant] is found to be a withdrawal of payment as contemplated by §637.736(7), Fla. Stat. (2003).” See also Viles, Derius v. Allstate Indemnity Co., 723 So. 2d 271 (Fla. 4th DCA 1998.)
Accordingly, the trial court’s Summary Judgment as to all of the cases on appeal was appropriate because there was no genuine issue of material fact and the Appellee was entitled to summary judgment as a matter of law.
It is, therefore,
ORDERED AND ADJUDGED that the Orders of the trial court granting the Appellee’s Motions for Summary Judgment are hereby AFFIRMED as to all of the cases consolidated into this appeal.
