15 Fla. L. Weekly Supp. 91a
Insurance — Personal injury protection — Explanation of benefits — Failure to provide — Letter cutting off benefits after independent medical examination is not EOB where letter was not sent to medical provider, was not labeled as EOB, is not itemized as required for EOB and did not give reasons for nonpayment of pre-IME bills — No merit to argument that letter substantially complied with EOB requirement
CHIROPRACTIC U.S.A., A/A/O NATALIA FERNANDEZ, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 06-2114 SP-21 (01). November 8, 2007. Ana Maria Pando, Judge. Counsel: Richard Shuster, Shuster & Saben, LLC, Miami, for Plaintiff. Melanie Smith, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT ON COUNT III (EOB), and FOR ATTORNEY’S FEES & COSTS
This Cause came to be heard on Thursday, November 8, 2007 upon the Plaintiff’s Motion for Final Summary Judgment with respect to Count III of the Plaintiff’s Complaint which alleged that the Defendant failed to furnish an explanation of benefits (hereafter EOB). The Court having reviewed the Plaintiff’s motion, the Defendant’s answers to interrogatories, Plaintiff’s memorandum of law and heard argument of counsel makes the following findings of fact and conclusions of law.
I. UNDISPUTED FACTS
On November 1, 2007, the Defendant served a notice of filing answers to interrogatories re: Failure to Provide EOB, wherein United asserted that IME cut-off letters sent to the patient’s bodily injury counsel, Tacher & Profeta, P.A. constituted an EOB.
II. ISSUE PRESENTED
This Court is thus presented with a question of law as to whether the subject IME cut-off letters constitute EOBs under the PIP statute. The PIP statute requires“When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge.
III. LEGAL HOLDING
There are four separate reasons why this Court finds that the IME cut-off letter is not an explanation of benefits. The first reason that the IME cut-off letter is not an EOB is that it was not sent to the provider. The plain language and purpose of the statute is for PIP carriers to explain to the treating physician/provider the nature and reason of the denial, partial denial or reduction to the physician’s bills. The IME cut-off letter was only sent to the bodily injury attorney and therefore Chiropractic USA was deprived of knowing why its bill was not paid.
The second reason that the IME cut-off letter is not an EOB is that it is not labeled as such. Just as a demand letter must state that it is a statutory demand letter under 627.736(11), a carrier should label its EOB so the provider can recognize that the communication is being sent for such purpose. United in other claims has sent documents labeled as Explanation of Benefits. The fact that this document was not labeled as a EOB, when United sends EOBs in other claims shows that this letter was sent merely to put the assignor on notice of the IME cut-off.
The third reason that the IME cut-off letter is not an EOB is that it is not itemized as required by the statute.
The fourth reason that the IME cut-off letter(s) are not EOBs is that there is no explanation for the non-payment of any dates of service prior to the IME exam. The IME was conducted on November 9, 2005. The subject dates of service are from September 28, 2005 to November 18, 2005. Since the IME only cut off post exam treatment the IME was not a reason for non-payment of the pre-IME bills. As such at a minimum United failed to an EOB for all dates of service prior to November 9, 2005.
The Defendant contends that if there was not full compliance with the EOB requirements, United at least substantially complied. This argument would be persuasive if United had complied with substantially all of the statutory requirements. The Court finds that United did not comply with any of the statutory requirements. The Court holds that as a matter of law the IME cut-off letter submitted in this case to the assignor’s third party bodily injury counsel is not an explanation of benefits.
WHEREFORE it is ORDERED and ADJUDGED:
1. Plaintiff is entitled to final summary judgment with respect to Count III.
2. The Plaintiff is the prevailing party with respect to Count III.
3. With respect to attorney fee entitlement as it relates to Count III the Court reserves jurisdiction to determine attorney fee entitlement.
