16 Fla. L. Weekly Supp. 389a
Online Reference: FLWSUPP 165VALIE
Insurance — Personal injury protection — Withdrawal of benefits — Notice — Insurer is not required to provide insured with notice that it will not pay for medical expenses after physician who conducted independent medical examination determines that further treatment would not to be reasonable, related or necessary — Error to find that cutoff of benefits following IME was effective on date insurer sent notice of cutoff rather than date IME physician determined and notified insurer that further treatment would not be reasonable, related or necessary
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o Mercedes Valientas, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 07-524 AP and 08-039 AP (Consolidated). L.C. Case No. 07-9501 CC 25. Original Opinion February 18, 2009. Corrected March 12, 2009. An Appeal from the County Court for Miami-Dade County. Counsel: Michael J. Neimand, Office of the General Counsel/Trial Division, United Automobile Insurance Company, for Appellant. Kevin W. Whitehead, Jose R. Iglesia & Associates, Inc., for Appellee.
(Before STANFORD BLAKE, BEATRICE BUTCHKO, and JOHN W. THORNTON, JR. JJ.)
CORRECTED OPINION
(BUTCHKO, J.) On October 10, 2006, Mercedes Valientas was injured in an automobile accident. The Appellee, Professional Medical Group, Inc. (Professional), rendered medical care and treatment to Mercedes Valientas. Mercedes Valientas was insured by Appellant, United Automobile Insurance Company (United). On November 9, 2006, Mercedes Valientas submitted to an independent medical examination (IME) performed by Dr. Glatzer pursuant to § 627.736(7)(a), Fla. Stat. (2006). Dr. Glatzer concluded that further medical treatment would not be reasonable, related, or necessary.1 In response to Dr. Glatzer’s medical report, United generated a letter two weeks later, November 22, 2006, advising Professional that United would be suspending benefits for any services rendered after November 9, 2006. On April 23, 2007, Professional filed a complaint against United for Breach of Contract for personal injury protection (PIP) benefits for medical treatment rendered from October 11, 2006 through January 18, 2007. On September 21, 2007, the trial court found that the cut off for benefits was effective November 22, 2006, the date United notified Mercedes Valientas that benefits would be suspended.
The issue before this Panel is whether the lower court erred in entry of summary judgment in favor of Professional using the date of the suspension of benefits letter. We conclude that we must reverse the summary judgment, as United was allowed to suspend benefits after receiving Dr. Glatzer’s medical report that further treatment was not reasonable, related, or necessary. Additionally, an insurance company is not required to provide notice to the insured that it will not pay for medical expenses after further treatment is found not to be reasonable, related, or necessary. Finally, the doctrine of estoppel is inapplicable to extend insurance coverage.
The standard of review on appeal for reviewing the entry of a final summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The reviewing court must examine the record by the same summary judgment standard as the lower court by determining whether a genuine issue of material fact exists and whether the lower court applied the correct rule of law. Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 32 (Fla. 1977). This standard of review also requires a reviewing court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).
According to § 627.736(7)(a), Fla. Stat. (2006), an insurer may not withdraw payment of a treating physician without the consent of the injured person covered by PIP, unless the insurer first obtains a valid report by a licensed Florida physician whose treatment authorization is sought to be withdrawn stating that treatment was not reasonable, related, or necessary. The trial courts must, by the wording of the legislation, determine the date that United obtained the report signed by the physician. A log stating the date United received the signed physician’s report kept in their offices along with the actual signed physician’s report would satisfy the statutory requirements for withdrawing payments or suspending benefits. In this case, when Dr. Glatzer determined and notified United that further treatment of Mercedes Valientas was no longer reasonable, related, or necessary on November 9, 2006, United properly withdrew payment for medical treatment from that date forward. Professional contends that the law requires United to provide notice of its intent to disclaim benefits and failure to so constitutes a waiver of its ability to deny benefits based on Tiedtke v. Fidelity & Casualty Co. of New York, 222 So. 2d 206 (Fla. 1969). Tiedtke does not apply to coverage but forfeiture provisions of insurance policies which is not at issue in this case. The PIP statutes, §§ 627.730-627.7405, Fla. Stats. (2008), are applicable in this case and do not require the insurance company to provide notice to the insured, let alone a specific time period as to when the insured should be notified that further medical treatment is not reasonable, related, or necessary.
Of all the PIP statutes, § 627.736(7)(b) is the only statute that provides for when and how a person subject to an independent medical examination is to receive notice of the physician’s findings. According to the statute, the person being examined is entitled to a copy of every written report concerning the examination with at least one of the reports setting out the examining physician’s findings and conclusions in detail. However, these reports are provided only if it is requested by the person being examined.2
Professional also relies on Irigoyen v. Aircraft Services, Inc., 544 So. 2d 1054 (Fla. 1st DCA 1989) for the position that United should be estopped from denying payment for treatments rendered by Professional from November 9, 2006 to November 22, 2009 due to United’s failure to notify Professional or Mercedes Valientas that further treatment was not reasonable, related, or necessary. This reliance is misplaced since Irigoyen involves the worker’s compensation statutes and the doctrine of estoppel cannot be used affirmatively to extend coverage. See Crown Life Ins. Co. v. McBride, 517 So. 2d 660, 661 (Fla. 1987); United Automobile Ins. Co. v. Brooks, 837 So. 2d 423, 425 (Fla. 3d DCA 2002). In Irigoyen, the carrier notified the claimant on October 9, 1987 that chiropractic treatment was never authorized after the claimant began receiving treatment on June 24, 1987 and after several correspondences between the claimant’s attorney and the carrier’s adjuster. Id. at1055. The court held that the carrier’s failure to indicate to claimant before October 9, 1987 that it considered there to be an authorization problem with the chiropractor estopped from denying payment of the medical bills incurred up to that date notwithstanding their necessity, reasonableness, or relatedness. Id. at 1056. The carrier’s actions prior to that time “amounted to tacit authorization of the doctor’s treatments.” Id. This is not the case here. After United received Dr. Glatzer’s medical report, Mercedes Valientas was notified within two weeks that further medical benefits would not be paid.
As such, we REVERSE the lower tribunal, and REMAND this matter to that court for further proceedings consistent with this opinion.
REVERSED and REMANDED. (BLAKE, and THORNTON, JJ. concur.)
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1Neither party disputes that the independent medical examination complied with § 627.736(7)(a), Fla. Stat. (2006).
2A statutory amendment, requiring that compulsory copies of IME reports finding treatment no longer reasonable, related or necessary be delivered to the insured or the insured’s treating physician, would eliminate instances of continued treatment by the insured when coverage is no longer contractually required.
