15 Fla. L. Weekly Supp. 581a
Insurance — Personal injury protection — Coverage — Medical expenses — Withdrawal — Valid physician’s report — Where insurer had physician’s report finding that further treatment would not be reasonable, related or necessary when it issued letter withdrawing treatment and refused payment for MRI that was performed in interim between report and issuance of cutoff letter, trial court erred in refusing to consider physician’s affidavit and report in ruling on motion for summary judgment
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida corporation, Appellant, vs. FLORIDA MRI, INC., a/a/o Henry Salcedo, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-2138 (26). L.T. Case No. 04-17755 COCE 50. March 7, 2008. Counsel: Michael J. Neimand, Coral Gables. Steven Lander, Ft. Lauderdale.
OPINION
(CHARLES M. GREENE, J.) THIS CAUSE comes before this Court, sitting in its appellate capacity, upon Appellant’s, United Automobile Insurance Company, (hereinafter “UAI”), timely appeal of the trial court’s order granting Appellee’s, Florida MRI, Inc., Motion for Summary Judgment. Having considered the briefs of both parties, the record on appeal, applicable law, and being otherwise fully advised in the premises, this Court finds as follows:
On October 22, 2004, Florida MRI Inc., as assignee of Henry Salcedo, filed a complaint against UAI for breach of contract for PIP benefits arising from an accident that occurred on January 11, 2004. Florida MRI was seeking payment for an MRI conducted on March 9, 2004. On December 21, 2004, UAI filed its answer and affirmative defenses. As an affirmative defense, UAI asserted that it was not responsible for the March 9, 2004 MRI since on February 26, 2004, Dr. Neil Fleischer conducted an independent medical examination on Henry Salcedo and found that further treatment would not be reasonable, related and necessary. On June 26, 2006, Florida MRI filed a motion for summary judgment asserting that there was no dispute that the treatment was reasonable, related and necessary. In support of the motion, Florida MRI filed the affidavit of the treating physician. On August 31, 2006, UAI, in opposing the motion for summary judgment, filed the affidavit of Dr. Neil H. Fleischer, in which Dr. Fleischer stated that he had performed an independent medical examination on Henry Salcedo on February 26, 2004, and found that further treatment would not be reasonable, related or necessary. At the hearing on the motion for summary judgment, Florida MRI argued that Dr. Fleischer’s affidavit and independent medical examination should not be considered because the letter notifying the insured that further medical treatment after February 26, 2004, would not be reasonable, related or necessary was sent on March 19, 2004, and since the MRI was conducted on March 9, 2004, the March 19, 2004 letter did not cut off the MRI. In response, UAI argued that only a doctor can determine whether or not treatment was reasonable, related, or necessary and thus it was the date of the examination that was the cut off date. The trial court held that the cut off date was March 19, 2004, the date the insured was notified and granted summary judgment in favor of Florida MRI.
The appellate standard of review pertaining to a trial court order granting summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary judgment may be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 130 (citations omitted).
UAI argues that the trial court erred in granting summary judgment in favor of Florida MRI on the issue of reasonableness, relation and medical necessity for all treatment through March 19, 2004, where physician’s affidavit and medical report found that any treatment after February 26, 2004, would not be reasonable, related and necessary. Florida MRI argues that section 627.736(7)(a), Fla. Stat. provides that an insurer may not withdraw payment of a treating physician unless the insurer first obtains a valid report, and that UAI had not obtained a valid report within the meaning of the statute on February 26, 2004. Florida MRI argues that UAI’s letter of March 19, 2004, was attempting to cut off PIP benefits retroactively to February 26, 2004.
Section 627.736(7)(a) provides in pertinent part:
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 prepared and signed by the physician examining 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.
In this case, Dr. Fleischer performed an independent medical examination on February 26, 2004 and prepared a report stating that further treatment would not be reasonable, related, or necessary. UAI had this report when it withdrew treatment and denied the bill for the MRI. Although Florida MRI argues that the report advised that “any further chiropractic treatment would not be reasonable, related, or medically necessary,” and Florida did not provide further chiropractic treatment but diagnostic testing, the term “treatment” encompasses diagnostic procedures. See Simmons v. Provident Mut. Life Ins. Co., 496 So.2d 243, 245 (Fla. 3d DCA 1986). As UAI had the valid report of Dr. Fleischer when it withdrew payment based on the finding that further treatment would not be reasonable, related, or necessary, the lower court erred in refusing to consider the affidavit and report of Dr. Fleischer, based on its finding that the date of the cutoff letter was the date treatment was cut off, and granting summary judgment in favor of Florida MRI.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s order granting Appellee’s, Florida MRI, Inc., Motion for Summary Judgment is REVERSED. This matter is remanded to the trial court for further proceedings consistent with this Opinion.
