19 Fla. L. Weekly Supp. 865b

Online Reference: FLWSUPP 1910GASSInsurance — Personal injury protection — Claims — Timeliness — Where medical provider timely submitted notice of initiation of treatment to insurer, time for submission of all charges, not just charges for first treatment, was extended from 35 days to 75 days — Partial summary judgment granted in favor of provider

DAYTONA CHIROPRACTIC CLINIC, LLC, as assignee of Joseph Gass, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2010-32185-COCI, Division 71. May 22, 2012. Bryan A. Feigenbaum, Judge. Counsel: David B. Alexander, Bradford Cederberg, P.A., for Plaintiff. Julia Pinnell, Cameron, Hodges, Coleman, LaPointe & Wright, P.A., for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS MATTER having come before this Honorable Court on Plaintiff’s Motion For Partial Summary Judgment Re: Defendant’s Affirmative Defenses Number Five (5) And Number Six (6) (Indicated Within Defendant’s Answer & Affirmative Defenses As Paragraphs Numbered Fifty-Two (52) And Fifty-Three (53) Respectively) Pursuant To Fla. R. Civ. P. 1.510(c) And Memorandum Of Law In Support Thereof and Defendant’s Motion For Summary Judgment and this Honorable Court having heard arguments of counsel on April 16, 2012 and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED that:

1. This is a claim for PIP benefits arising out of a motor vehicle collision that occurred on or about January 20, 2009. Daytona Chiropractic Clinic, LLC (hereinafter referred to as “Plaintiff”) rendered chiropractic services to USAA Casualty Insurance Company’s (hereinafter referred to as “Defendant”) insured (Joseph Gass) following the January 20, 2009 date of loss.

2. On February 3, 2009, Joseph Gass (hereinafter referred to as “Mr. Gass”) first presented to Plaintiff for treatment and services due to the injuries Mr. Gass sustained in the motor vehicle collision of January 20, 2009.

3. Plaintiff submitted a Notice of Initiation of Treatment to Defendant pursuant to Fla. Stat. §627.736(5)(c) with a postmark date of February 11, 2009.

4. Plaintiff submitted said Notice of Initiation of Treatment within twenty-one (21) days of the first date of service pursuant to Fla. Stat. §627.736(5)(c)1.

5. Defendant received Plaintiff’s timely submitted Notice of Initiation of Treatment on February 14, 2009.

6. On September 1, 2009, Plaintiff rendered chiropractic services to Mr. Gass due to the injuries Mr. Gass sustained in the motor vehicle collision of January 20, 2009. Plaintiff subsequently billed Defendant for the September 1, 2009 treatment and services rendered to Mr. Gass.

7. Plaintiff’s statement of charges for treatment and services rendered to Mr. Gass on September 1, 2009 was postmarked on October 13, 2009, less than seventy-five (75) days following the September 1, 2009 date of service.

8. The statement of charges for the treatment and services rendered to Joseph Gass on September 1, 2009 was received by Defendant on October 15, 2009.

9. To date, Defendant has failed to pay for the treatment and services provided by Plaintiff to Mr. Gass on September 1, 2009.

10. Fla. Stat. §627.736(5)(c)1., reads as follows:

“With respect to any treatment or service, other than medical services billed by a hospital or other provider for emergency services as defined in s. 395.002 or inpatient services rendered at a hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date or electronic transmission date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement. The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with the paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable.” Fla. Stat. §627.736(5)(c)1.(2008-2011)(emphasis added).

11. Counsel for the Defendant argues that the opinion of Premier Plus Healthcare, a/a/o Torres Claudia v. United Services Automobile Association, 8 Fla. L. Weekly Supp. 868a (County Court, Broward County, September 10, 2001) should control this issue. The Court finds this case unpersuasive and in conflict with the clear and unambiguous language of the statute. The Premier Plus court sets forth no analysis for its ultimate conclusion that a Notice of Initiation of Treatment only applies to “that first statement.” Id.

12. Counsel for the Plaintiff presents two cases that are on point, Hands For Health, Inc., a/a/o Mamerto Marte v. Allstate Insurance Company, 11 Fla. L. Weekly Supp. 128b (County Court, Orange County, December 12, 2003) and Warren v. State Farm Mutual Auto. Ins. Co., 899 So. 2d 1090 (Fla. 2005) [30 Fla. L. Weekly S197b]. The Court finds that these two cases offer both guidance and analysis of the issue in this matter which is one of first impression for this Court.

13. “The clear language of the statute begins with the phrase ‘With respect to any treatment or services. . .’. The statute then goes on to set forth the time limitations and exceptions thereto regarding the statement of charges for any treatment or services.” Hands For Health, Inc., 11 Fla. L. Weekly Supp. 128b(emphasis in original). The Hands For Health court was addressing Fla. Stat. §627.736(5)(b)(2000); the language of Fla. Stat. §627.736(5)(c) (2008-2011) is fundamentally unchanged from its earlier counter-part with the exception of the number of days permitted for submission of a statement of charges once a timely Notice of Initiation of Treatment is submitted to the insurer. The earlier Fla. Stat. §627.736(5)(b)(2000) allowed sixty (60) days from the date of treatment where as the current Fla. Stat. §627.736(5)(c) (2008-2011) permits seventy-five (75) days for the postmarking of the statement from the date of service on the statement of charges.

14. “The statute does not distinguish the first date of treatment from any other date of treatment or services and, therefore, Section 627.736(5)(b) Florida Statutes (2000) applies to charges for all dates of treatment related to the date of loss and patient for which the provider makes a claim.” Hands For Health, Inc., 11 Fla. L. Weekly Supp. 128b(emphasis added). “Reference to the ‘first examination or treatment’ in Section 627.736(5)(b) Florida Statutes (2000), merely provides a point from which to measure the 21 days within which healthcare providers must submit a notice of initiating treatment to obtain the 30 day extension.” Id. This extension is measured from the original thirty (30) days indicated within the previous Fla. Stat. §627.736(5)(b) as the time limitation for submitting statement of charges wherein no Notice of Initiation of Treatment applies. Under the current version of the statute, Fla. Stat. §627.736(5)(c)(2008-2011), said extension has been increased to forty (40) days over the thirty-five (35) days allowable wherein no Notice of Initiation of Treatment applies. There has been no change to the twenty-one (21) day time limitation for submission of the Notice of Initiation of Treatment. The “first examination or treatment” is used simply as a reference point for the twenty-one (21) day time limitation, if the Legislature wanted to limit the Notice of Initiation of Treatment extension to only the “first examination or treatment” it would have done so.

15. Further, the Court finds the reasoning of the Florida Supreme Court in the case of Warren v. State Farm Mutual Auto. Ins. Co., 899 So. 2d 1090 (Fla. 2005) [30 Fla. L. Weekly S197b] compelling to this issue. When addressing the constitutionality of Fla. Stat. §627.736(5)(b)(1999), the Florida Supreme Court indicated that under Fla. Stat. §627.736(5)(b)(1999), predecessor to Fla. Stat. §627.736(5)(c)(2008-2011), “a provider who submits a notice of initiation of treatment within twenty-one days of the first examination or treatment of the patient may then have up to sixty days [seventy-five days under the current statute] to submit claims to the insurer.” Id.(emphasis added). The Florida Supreme Court’s use of the word “claims” in this Notice of Initiation of Treatment context relates to all claims (i.e., all dates of service). This is clear by the court’s previous use of the word “claims” when speaking about bills that are not subject to the statutory Notice of Initiation of Treatment extension. Id at 1094.

16. The clear and unambiguous language of Fla. Stat. 627.736(5)(c)1., reads “[w]ith respect to any treatment or service” the statement of charges “may include charges for treatment or services rendered up to, but not more than, 75 days before the postmark date of the statement.” Fla. Stat. §627.736(5)(c)1. (2008-2011)(emphasis added). Consequently, any date of service for treatment and service rendered to Mr. Gass by Plaintiff for the injuries Mr. Gass sustained in the motor vehicle collision of January 20, 2009 were permitted to be billed to Defendant and considered timely so long as the postmark date on the bill (“statement of charges”) indicated a date no later than seventy-five (75) days after the date of service included on the bill (“statement of charges”). The Court can not read into Fla. Stat. §627.736(5)(c)1. (2008-2011) that the Notice of Initiation of Treatment only applies to the first date of treatment, to do so would be in derogation of the clear language of the statute.

17. A timely Notice of Initiation of Treatment was submitted within twenty-one (21) days of Plaintiff’s initial date of treatment of Mr. Gass. Consequently, Plaintiff was permitted the forty (40) day extension of time, permitting Plaintiff to submit the September 1, 2009 statement of charges to Defendant up to seventy-five (75) days following the September 1, 2009 date of service.

18. Plaintiff in no way violated Fla. Stat. 627.736(5)(c) in this matter as Plaintiff’s billing for the treatment and services rendered to Mr. Gass on September 1, 2009 was timely and properly submitted to Defendant for payment. To date, Defendant has failed to pay the timely and properly submitted bill for date of service September 1, 2009.

19. Defendant’s Motion For Summary Judgment is hereby DENIED.

20. Plaintiff’s Motion For Partial Summary Judgment is hereby GRANTED as to Defendant’s Affirmative Defense Number Six (6) (indicated within Defendant’s Answer & Affirmative Defenses as paragraph number fifty-three (53)) as Plaintiff submitted a timely Notice of Initiation of Treatment and subsequently submitted a proper and timely statement of charges to Defendant for the treatment and services rendered to Mr. Gass on date of service September 1, 2009.

21. The Court hereby reserves ruling on Plaintiff’s Motion For Partial Summary Judgment as to Defendant’s Affirmative Defense Number Five (5) (indicated within Defendant’s Answer & Affirmative Defenses as paragraph number fifty-two (52)) which ruling will not conflict with the language of this Order.

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