19 Fla. L. Weekly Supp. 975a

Online Reference: FLWSUPP 1912CHAVInsurance — Personal injury protection — Summary judgment — Trial court erred treating independent medical examination and peer review report as sworn statements for purposes of rule set forth by supreme court in Ellison v. Anderson that a party in summary judgment proceedings may not repudiate a prior sworn affidavit, deposition, or prior sworn testimony by using a subsequent sworn statement, and in refusing to consider IME and peer review report under Ellison rule based upon finding that there were contradictions between IME and report — IME finding that insured needs no further treatment is not “bald repudiation” of peer review report opining that some prior treatment was not reasonable, related and necessary — Error to enter summary judgment where affidavit of physician and attached peer review report and IME created genuine issue of material fact as to reasonableness, relatedness and necessity of treatment — Trial court erred in ruling that insurer that rejected some of provider’s bills was required to have valid medical report before denying payment

UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. FLORIDA INSTITUTE FOR PAIN, INC., A/A/O LITA CHAVIS, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-065 AP & 09-492 AP. L.C. Case No. 06-001293 CC 25. August 1, 2012. On appeal from a decision rendered by the Miami-Dade County Court. Jacqueline Schwartz, Judge. Counsel: Lara J. Edelstein, Office of the General Counsel of United Automobile Insurance Company, for Appellant. Jose R. Iglesia, Jose R. Iglesia and Associates; and Chelin V. Sampedro, for Appellee.

(Before EIG, ZABEL and REBULL, JJ.)

(PER CURIAM.) This is an appeal from a final summary judgment entered by the trial court in favor of the Plaintiff-Appellee, Florida Institute of Pain, Inc. (“Florida Institute of Pain”). The summary judgment addressed the issue of reasonableness, relatedness and necessity (“RRN”) of medical treatment it provided as assignee of Ms. Chavez’s personal injury protection benefits. Defendant-Appellant, United Automobile Insurance Company (“United Auto”) additionally appeals the award of attorney’s fees and costs to Florida Institute of Pain.

On or about December 19, 2004, Lita Chavis (“Ms. Chavis”) was involved in a motor vehicle accident. Chavis was an insured and beneficiary of a Personal Injury Protection (“P.I.P.”) policy issued by United Auto. Ms. Chavis sought treatment with Mariana De La Portilla, M.D. (“Dr. De La Portilla”) of the Florida Institute of Pain on January 5, 2005 with complaints of severe pain and limitation of motion of her spine.

At the time of her initial visit on January 5, 2005, Ms. Chavez executed an assignment of benefits (“AOB”), assigning her rights to pursue any PIP claims for Dr. De La Portilla’s bills to the Florida Institute of Pain. The claim for compensation was reported to United Auto on January 18, 2005. Florida Institute of Pain rendered treatment to Ms. Chavis, from January 6, 2005 through April 26, 2005. On April 27, 2005, Dr. De La Portilla conducted a final examination of Ms. Chavis and discharged her from care.

On March 7, 2005, United Auto received bills in the amount of $3,274.93 for dates of service January, 5, 2005 through March 2, 2005. On April 11, 2005, United Auto received bills in the amount of $1,165.24 for dates of service March 9, 2005 through April 5, 2005. United Auto sent Ms. Chavis for an Independent Medical Examination (“I.M.E.”) with orthopaedic physician Peter H. Millheiser, M.D. (“Dr. Millheiser”) on February 16, 2005. Ms. Chavis attended the appointment. Dr. Millheiser’s wrote an I.M.E. report, thereafter.

United Auto sent a letter to Ms. Chavez’s attorney, Robert Rubenstein (“Mr. Rubenstein”), dated April 6, 2005, indicating that based on the I.M.E. examination of Dr. Millheiser of February 16, 2005, United Auto was withdrawing benefits for further treatment conducted by an M.D. On May 9, 2005, Dr. Millheiser conducted a peer review where he reviewed the medical notes, reports, bills and records of Dr. De La Portilla to determine what services were RRN. Dr. Millheiser concluded in the report that only $580.00 worth of treatment was RRN, an amount insufficient to overcome the $1,000.00 P.I.P. deductible. Dr. Millheiser further concluded that all other visits, treatment and the cervical MRI, were not RRN. United Auto made no payments on any part of the claim.

Appellee Florida Institute of Pain filed a Complaint against United Auto on January 23, 2006 in the County Court of the Eleventh. Judicial Circuit. Appellee then filed a Motion for Summary Judgment as to Liability and/or RRN on September 11, 2006. In addition, Florida Institute of Pain filed an affidavit of Dr. De La Portilla on September 11, 2006, who concluded in her expert opinion that the treatment and bills in the amount of $4,436.17 were RRN.

United Auto replied by filing the affidavit of Dr. Millheiser on October 4, 2006. Dr. Millheiser attached his February 16, 2005 I.M.E. and May 9, 2005 peer review report to the affidavit, authenticating them as the author. Dr. Millheiser concluded in his expert opinion that only some of the services were RRN as related to the injuries Ms. Chavez sustained in the accident.

The trial court conducted a hearing on Florida Institute of Pain’s Motion for Summary Judgment as to RRN on October 6, 2006. It granted the motion, concluding that Fla. R. Civ. P. 1.510(e) required United Auto to attach the medical records of Dr. De La Portilla to the affidavit. In reality, United Auto could not because it could not authenticate them. The trial court struck the peer review report and affidavit as insufficient. The trial court concluded that United Auto could not deny benefits prior to the I.M.E. based on the peer review report, which was no longer part of the record. The trial court issued an order on October 6, 2006, granting the Motion for Summary Judgment ruling that all of the medical bills were RRN.

On March 1, 2007, the trial court signed the Final Judgment indicating that Florida Institute of Pain would recover $3,285.30 which was comprised of $2,748.94 in benefits and $536.36 in prejudgment interest. United Auto filed a Notice of Appeal on March 12, 2007. An appellate panel of the circuit court held that the affidavit of Dr. Millheiser was “legally sufficient” and that he was qualified to render an opinion that the medical treatment was not RRN.¹ In doing so, the circuit court reversed the order granting summary judgment, the Final Judgment and remanded the case to the trial court. Id.

Florida Institute of Pain then filed a Renewed Motion for Summary Judgment as to Liability and/or RRN on July 28, 2008. The trial court once again conducted a hearing on December 3, 2008 on the Renewed Motion. Florida Institute of Pain argued that the I.M.E. and the peer review reports conflicted. It also argued that United Auto needed to provide proof, based on a physical examination of Ms. Chavis, that the treatment rendered was not RRN, within 30 days of receipt of the bills. The trial court ruled that it was granting the Renewed Motion for Summary Judgment as to RRN. It further found an alleged contradiction within the statements of Dr. Millheiser. The trial court verbally concluded that the findings in Dr. Millheiser’s subsequent peer review report attempted to “retroactively” create a genuine dispute of material fact as to the prior dates of service.

The trial court signed an order on December 3, 2008, granting Florida Institute of Pain’s Renewed Motion for Summary Judgment on RRN and opined as follows:

Court finds that all treatment prior to 4/5/06 (suspension letter) is deemed RRN. The Court did consider peer review and IME report but finds that peer review and IME can only suspend further benefits per Bermudez² and statute. See transcript for further information.

Subsequent to its December 3rd order, the trial court issued a Final Judgment on January 27, 2009, awarding Florida Institute of Pain $3,809.86, which consisted of $2,748.94 in benefits and $1,060.92 in prejudgment interest.

United Auto filed its Notice of Appeal on February 5, 2009. The trial court then signed a Final Judgment of Attorney’s Fees and Costs on September 11, 2009. United Auto filed its Notice of Appeal as to that judgment on. September 21, 2009. Both appeals were subsequently consolidated.

The standard of review concerning the grant of a summary judgment by a lower court, is de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. The reviewing court must determine whether there was any genuine issue of material fact and whether the lower court granted the summary judgment correctly as a matter of law. Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. The movant at all times carries the burden of clearly and unequivocally establishing a right to summary judgment. Smith v. Musso, 151 So. 2d 475, 477 (Fla. 2d DCA 1963).

The moving party must demonstrate the absence of any genuine issue of material fact; and all doubts and inferences must be resolved against the movant. Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966) (holding in review of summary judgment dealing with numerous expert opinion affidavits regarding the issue of negligence that “opposing party’s papers be liberally read and construed, as opposed to a strict reading of the movant’s paper” and that moving party must demonstrate complete lack of triable issues). All inferences deductible from proofs are drawn against party moving for summary judgment and in favor of adverse party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).

The trial court erred when it concluded that the I.M.E. and peer review reports of Dr. Millheiser contradicted each other. One could infer, that at the time of the I.M.E., Dr. Millheiser had specifically opined that Ms. Chavez reached maximum medical improvement. Such improvement would be attributed to the course of RRN treatment, prescribed by Dr. De La Portilla. Yet one could equally infer that Dr. Millheiser conducted his own independent physical examination of Ms. Chavez for purposes of determining whether she had fully recovered as of the moment in time she was examined. An I.M.E. does not need to necessarily validate each prior treatment occurring before the examination; it only need determine if Ms. Chavez remains symptomatic as of the date of the exam.

Additionally, there was nothing in the I.M.E. report to suggest that Dr. Millheiser reviewed all of the medical billing, notes and reports at the time he performed his examination. To have concluded he did, would have required the lower court to stack inferences. United Auto was the non-moving party in the initial motion for summary judgment. Under the law, United Auto should have been afforded inferences in its favor against that theory. Moore, 475 So. 2d at 668; Holl, 191 So. 2d at 43-44.

The Florida Supreme Court has established that a party in summary judgment proceedings may not repudiate a prior sworn affidavit, deposition or prior sworn testimony by using a subsequent sworn statement. Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954). However, the rule does not apply to prior statements which are unworn. Regis v. Sunrise Development Corp., 943 So. 2d 330 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D3141a] (“The rule. . . does not apply to an affidavit of a witness purporting to be the first expression by the witness under oath in the litigation as to a fact in dispute even though it contradicts a prior out-of-court, non-sworn statement by the witness in a corporate document.”); see also Stanford v. CSX Transp., Inc., 637 So. 2d 37, 38 (Fla. 2d DCA 1994) (“We question whether the rule in Ellison should apply to an unsworn telephone interview . . . .”).

The trial court erred in considering the peer review and the I.M.E. reports, as sworn statements for purposes of the Ellison rule. The affidavit of Dr. Millheiser, constituted his first sworn statement under oath and it was error to find conflict between the affidavit and the unsworn I.M.E. Regis, 943 So. 2d at 330. Even assuming arguendo that an I.M.E could be considered, where the I.M.E. report was silent as to whether it specifically opined that prior treatment was RRN, this would not constitute the type of “bald repudiation” testimony that was prohibited by Ellison. See Stanford, 637 So. 2d at 38.

There have been numerous decisions issued by the Third District Court of Appeal which undertook a directed effort to clarify the procedural aspects of the PIP statute, seeking to resolve conflicting decisions in the appellate division of the circuit court. See United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b] (en banc); see also Partners in Health Chiropractic v. United Automobile Ins. Co., 21 So. 3d 858 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2177a]; United Automobile Ins. Co. v. Metro Injury & Rehab Center, 16 So. 3d 897 (Fla 3d DCA 2009) [34 Fla. L. Weekly D1516a]. Some of that confusion arose from an interpretation of whether previous case law precedent required that an insurer always obtain a physical examination pursuant to section 627.736(7)(a) before making payments on claims within 30 days of receipt. See United Automobile Insurance Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998) [24 Fla. L. Weekly D14a].

The Third District Court of Appeal has clearly held that an insurer may at any time challenge whether treatment is RRN, and is permitted to rely on a report obtained pursuant to section 627.736(7)(a) even when the report is obtained more than thirty days after the claim was submitted. United Automobile Insurance Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So. 3d 242, 246-247 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D913c]. An insurer is not required to obtain a physical examination complying with section 627.736(7)(a) to reduce or deny payment of services that are not RRN. See State Farm Mutual Automobile Insurance Co. v. Rhodes & Anderson, D.C., P.A., 18 So.3d 1059 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D839a].

An insurer’s obligation, pursuant to section 627.736(7)(a), to first obtain a medical report, applies only to withdrawal of benefits — as opposed to denial or reduction of payment to a treating physician. Sante Fe Medical Center, 21 So. 3d at 66-67. The Third District Court of Appeal has even noted that section 627.736(7)(a) no longer requires a physical examination of the insured to withdraw benefits. Metro Injury & Rehab Center, 16 So. 3d at 899-900; Partners in Health Chiropractic, Inc., 21 So. 3d at 864.

The trial court erred by ruling that Bermudez prohibited United Auto from denying or reducing the claims.³ A claim may be rejected more than thirty days after submission to the insurer notwithstanding being “overdue.” Partners in Health Chiropractic, Inc., 21 So. 3d at 864. Where some bills are being rejected by an insurer, section 627.736(4)(b) applies and does not require United Auto to have a “valid report” before denying payment. Id. United Auto had not authorized or approved the treatment of Dr. De La Portilla; therefore, the provisions of section 627.736(7)(a) did not apply. Sante Fe Medical Center. 21 So. 3d at 66-67.

We REVERSE and REMAND the summary judgment finding below that the affidavit of Dr. Millheiser failed to create a genuine issue of material fact as to the reasonableness, relatedness and necessity of the treatment provided. Therefore, Florida Institute of Pain is not entitled to summary judgment as a matter of law. We note that this is the second time an appellate circuit court panel has reviewed Dr. Millheiser’s affidavit and found that there exists a genuine issue of material fact regarding RRN of the treatment rendered.

We also REVERSE the lower court’s order awarding Florida Institute of Pain attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 993 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1506a]; Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D695a].

Additionally, Appellee’s Motion for Attorney’s Fees is DENIED. Since Appellee is not the prevailing party in this appeal, attorney’s fees are not attainable. § 627.428(1). Fla. Stat. (2009)

FOR THESE REASONS, the order granting summary judgment in favor of Appellee Florida Institute of Pain is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED. (EIG, ZABEL and REBULL, J.J., concur.)

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¹United Automobile Ins. Co. v. Florida Institute of Pain, Inc., a/a/o Lita Chavis, 15 Fla. L. Weekly Supp. 569a (Fla. 11th Jud. Cir. Ct. March 26, 2008).

²United Automobile Insurance Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1201a].

³Bermudez, 980 So. 2d at 1217 n.4 (finding that “section 627.736(4) . . . deals with timing as to when PIP benefits that are properly due must be paid by an insurer before they are considered overdue. . . . [S]ection 627.736(4) expressly provides that ‘[t]his paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable’ ”) quoting AIU Insurance Co. v. Daidone, 760 So. 2d 1110, 1112 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1625a].

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