18 Fla. L. Weekly Supp. 1067a
Online Reference: FLWSUPP 1811CUNI Insurance — Personal injury protection — Denial of benefits — Valid medical report — Where some but not all claims from medical provider were rejected by insurer as unreasonable, unrelated or unnecessary, and case involves denial of payment rather than withdrawal of payment, there was no requirement that insurer obtain medical report prior to denying payment or that medical report relied upon be created by physician in active practice — Trial court erred in refusing to consider peer review and independent medical examination filed in opposition to summary judgment and in entering summary judgment in favor of provider
UNITED AUTOMOBILE INS. CO., Appellant, vs. TOWER HEALTH CENTER a/a/o MORAIMA CUNI, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-490 AP. L.T. Case No. 07-014376 SP 25. May 10, 2011. An appeal from the County Court for Miami-Dade County. Jacqueline Schwartz, Judge. Counsel: Thomas L. Hunker, for Appellant. Chelin Vazquez Sampedro, Eric Shapiro, and Jose Ricardo Iglesia, for Appellee.
(Before ROTHENBERG, SHAPIRO, RODRIGUEZ, JJ.)
(PER CURIAM.) In this Personal Injury Protection (PIP) case, Tower Health Center treated United Auto’s insured and sought payment from United Auto by sending it a demand letter. United Auto paid a portion of what Tower Health requested. The payment was not made until after all treatment had been concluded. Because United Auto did not pay its claims in full, Tower Health filed suit. Tower Health moved for summary judgment, relying on the peer review of a doctor who alleged that all of Tower Health’s bills were reasonable, related and necessary (RRN). United Auto opposed summary judgment, relying on another doctor’s independent medical examination (IME), alleging that all treatment after a certain date was not RRN, and a third doctor’s peer review report concluding that several treatments were not RRN.
The trial court rejected United Auto’s IME on the basis that it did not expressly state that the doctor who conducted the examination was in active practice during the 3 years immediately preceding the date of the IME. It also rejected United Auto’s peer review on the basis that it was obtained after lawsuit was filed. It therefore granted summary judgment in Tower Health’s favor. United Auto appeals.
United Auto asserts that the trial court erred by (1) refusing to consider its peer review because it was obtained after suit was filed and (2) refusing to consider its IME on the ground that the affidavit accompanying the IME did not expressly state that the doctor was in active practice during the 3 years immediately preceding the date of the IME.
The outcome of both of these issues is determined by whether United Auto “withdrew” payment or “denied” payment in the instant case. Both parties agree that when an insurance company withdraws payment, Florida Statute section 627.736(7)(a) applies. That section requires an insurer, prior to withdrawing payment, to obtain a medical report from a physician in active practice.1 On the other hand, when an insurance company denies payment, section 627.736(4)(b) applies, which neither requires the insurer to obtain a medical report prior to denying payment, nor requires, when an insurer relies upon a medical report as proof that it is not responsible for the payment, that such report must be created by a physician in active practice.
Thus, the determinative issue in the instant case is whether United Auto “withdrew” payment or “denied” payment. The difference between these concepts was discussed in Partners in Health Chiropractic v. United Auto. Ins. Co., 21 So. 3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]:
If an insurer either denies a claim completely, that is refuses to make any payments whatsoever, or denies one or more discrete charges or claims (whether for a treating physician’s services or otherwise), the insurer’s actions constitute a “denial” of benefits and section 627.736(4) of the Florida Statutes applies. If, however, the insurer has paid benefits to a treating physician, and then seeks to withdraw or terminate further payment to that physician, the insurer’s actions constitute a “withdrawal” of further benefits and section 627.736(7) applies.
Id. at 860 (emphasis in original). When summarizing its findings, the Third DCA stated:
· a claim may be rejected more than thirty days after submission to the insurer notwithstanding being “overdue”;
· where no payment whatsoever has been made and the insurer rejects all claims or bills from a particular provider or treating physician as being unreasonable, unrelated or, unnecessary, section 627.736(4)(b) applies;
· where some but not all claims or bills from a particular provider or treating physician are being rejected or reduced as unreasonable, unrelated, or unnecessary, section 627.736(4)(b) likewise applies;
. . .
· where an insurer withdraws (that is, terminates) payments being made to a treating physician or withdraws or terminates authorization for further treatment by a treating physician, a section 627.736(7)(a) report must first be obtained;
Id. at 864 (emphasis added).
In addition, another Third DCA case, State Farm Mutual Automobile Ins. Co. v. Hyma Med. Center, 22 So. 3d 699 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2305a], explained that “In a withdrawal case the insurer has made payments but then seeks to withdraw all future payments for the same injury.”
The instant case involves a situation where some but not all claims from a particular provider were rejected as unreasonable, unrelated, or unnecessary, rather than a situation where an insurer has made some payments but seeks to withdraw further, future payments. As such, we find that the case involved a denial of payment, rather than a withdrawal of payment. Therefore, section 627.736(4)(b) applies.
Since section 627.736(4)(b), rather than section 627.736(7)(a), applies, neither the requirement that the insurer must obtain a medical report prior to denying payment, nor the requirement that a medical report relied upon as proof that an insurer is not responsible for payment be created by a physician in active practice, applies. Accordingly, United Auto is correct that the trial court erred by (1) refusing to consider its peer review because it was obtained after suit was filed and (2) refusing to consider its IME on the ground that the affidavit accompanying the IME did not expressly state that the doctor was in active practice during the 3 years immediately preceding the date of the IME. These items created a genuine issue of material fact regarding whether the insured’s treatment was RRN, and therefore summary judgment should not have been entered in Tower Health’s favor.
Therefore, we REVERSE the summary judgment entered below and REMAND the case for proceedings consistent with this opinion. (ROTHENBERG, SHAPIRO, and RODRIGUEZ, JJ., concur.)
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1Because we determine below that section 627.736(7)(a) does not apply in the instant case, we need not determine whether the section 627.736(7)(a) requirement that the physician who prepares the report be in active practice translates into a requirement that the physician also must expressly state in the affidavit accompanying the report that he meets the active practice requirement. As such, we express no opinion on the matter.
