16 Fla. L. Weekly Supp. 194b

Online Reference: FLWSUPP 162BERGE

Insurance — Personal injury protection — Provider who is licensed orthopedic doctor under chapter 459 is not required to provide additional sworn statement or affidavit verifying credentials — Accordingly, provider’s failure to comply with insurer’s request for verification form does not relieve insurer of liability for claim

MED-MANAGE GROUP, INC. (AS ASSIGNEE OF Michael Bergey), Plaintiff(s), vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50 2008SC010401 XXXX SB, Division RD. December 19, 2008. James L. Martz, Judge. Counsel: Lindsay Porak, Law Office of Stephen D. Deitsch, P.A., Boca Raton. George Daven Shiejian.

AFFIRMED 17 Fla. L. Weekly Supp. 997a

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS MATTER having come on to be heard Defendant’s Motion for Summary Judgment, and the Court fully advised in the premises, the Court finds as follows:

FACTS:

1. The case centers on an orthopedic consult billed by Med Manage Group, and specifically provided by Steven Burack, D.O. on March 27, 2008 for injuries sustained in an automobile accident that occurred on March 12, 2008.

2. The Plaintiff submitted a bill to the Defendant, which was received on April 30, 2008, for $525.00 (or $420.00 @ 80%).

3. The Defendant responded to the bill on May 28, 2008 by sending the Plaintiff a “Notice to Produce Records Under F.S. 627.736(6)(b),” wherein the Defendant stated in relevant part:

We are in receipt of your bills regarding the above referenced patient for dates of service 3/27/08, in connection to the above referenced claim.

Before we are able to give further consideration to these bills, pursuant to F.S. 627.736(6)(b), we request that you provide us with the following information and documentation:

Documentation to verify that you are in compliance with F.S. 627.736(1)(a) and are therefore eligible for payment of PIP benefits. This must include, but is not limited to, the properly completed Office of Insurance Regulation approved form. [This form is attached for your convenience.]. . . .

However, please be advised that Mercury will not be considered to be on written notice of the fact of a covered loss until the requested documentation and information is received. Upon receipt of all the requested documentation, we will consider your claim further.

4. The Plaintiff never responded to this letter. Instead it sent, via its attorney, a demand letter to the Defendant on June 11, 2008, demanding payment for the orthopedic consult. Defendant received the demand letter on June 16th 2008.

5. The relevant statute is Fl. St. 627.736(1)(a);

Medical benefits. — Eightypercent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. However, the medical benefits shall provide reimbursement only for such services and care that are lawfully provided, supervised, ordered, or prescribed by a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, or a chiropractic physician licensed under chapter 460 or that are provided by any of the following persons or entities: (paragraphs 1-5 describing other entities omitted).

The Financial Services Commission shall adopt by rule the form that must be used by an insurer and a health care provider specified in subparagraph 3., subparagraph 4., or subparagraph 5. to document that the health care provider meets the criteria of this paragraph, which rule must include a requirement for a sworn statement or affidavit. (emphasis added)

6. The Defendant asserts that the Statute allows for completion of the OIR-B1-1809 form under all treatment scenarios, not just those entities described in sub. 3, 4 or 5.

7. It is undisputed that Dr. Burack, who performed the services on behalf of Plaintiff, is a licensed orthopedic doctor, under chapter 459, as described in the first full paragraph of 627.736(1)(a). This finding, by the plain meaning of the language contained therein, is not subject to the additional statement or affidavit described at the end of Fl. St. 627.736(1)(a). It seems logical to exclude these categories of medical professionals from additional discovery due to the ease of verifying their credentials when listed in box 31 of the claim form.

ORDERED AND ADJUDGED:

1. Plaintiff is not one of the entities listed under subparagraph no. 3., subparagraph no. 4 or subparagraph no. 5., and therefore is not required to complete an OIR-B1-1809 form. It is undisputed that Dr. Burack, who performed the services on behalf of Plaintiff, is a licensed orthopedic doctor, under chapter 459, as described in the first full paragraph of 627.736(1)(a). This finding, by the plain meaning of the language contained therein, is not subject to the additional statement or affidavit described at the end of Fl. St. 627.736(1)(a). It seems logical to exclude these categories of medical professionals from additional discovery due to the ease of verifying their credentials when listed in box 31 of the claim form.

2. Defendant’s argument that they are not required to pay this claim because their request for a complete OIR-B1-1809 form was issued under 627.736(6)(b) is denied.

3. Fla. Stat. § 627.736(6)(b) applies in very limited circumstances. It is invoked only when an insurer seeks information regarding the reasonableness, relatedness, and medical necessity of an identified item. 627.736(6)(b) specifically says that a provider must

“furnish forthwith a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce forthwith, and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment[.]

4. Defendant did not identify a portion of the bill and ask Plaintiff to demonstrate their reasonableness and medical necessity. Nor did Defendant request a written report of the “history, condition, treatment, dates, and cost of such treatment.”

5. Wherefore, Defendant’s Motion for Summary Judgment is Denied with Prejudice.