24 Fla. L. Weekly Supp. 764c
Online Reference: FLWSUPP 2409PAINInsurance — Personal injury protection — Coverage — Lawfully rendered services — Section 627.736(1)(a)5, which provides that medical benefits do not include massage regardless of person providing massage and prohibits licensed massage therapist from being reimbursed for medical benefits, does not bar medical provider from being reimbursed for physical therapy regimen rendered by employees of its facility who hold massage therapy licenses
SOUTH FLORIDA PAIN & REHABILITATION OF HIALEAH, LLC, Plaintiff, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case Nos. COCE 14-012840 (51), COCE 14-012851 (51), COCE 14-012852 (51), COCE 14-012854 (51). September 8, 2016. Nina W. Di Pietro, Judge. Counsel: Joseph R. Dawson, Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale, for Plaintiff. Mark D. Bartle, Roig Lawyers, Deerfield Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONSFOR PARTIAL SUMMARY JUDGMENT ONDEFENDANT’S FIRST AFFIRMATIVE DEFENSES
THIS CAUSE having come before the Court on July 28, 2016 for hearing of the Plaintiff’s Motions for Partial Summary Judgment on Defendant’s First Affirmative Defenses, and the Court having reviewed the Motions, the entire Court files, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Plaintiff filed identical Motions for Partial Summary Judgment on Defendant’s First Affirmative Defenses (hereinafter “Motions”) on the following cases with the same Defendant: COCE 14-012840 (51), COCE 14-012851 (51), COCE 14-012852 (51), and COCE 14-012854 (51). In all of the aforementioned cases, the assignor patients received various chiropractic treatments at Plaintiff’s facility from employees who maintain massage therapy licenses. In all of the aforementioned cases, Defendant put forth the following affirmative defense, “The Defendant, STAR CASUALTY, affirmatively alleges that Plaintiff is not entitled to recovery in this action pursuant to Fla. Stat. 627.736(1)(a)(5), a licensed massage therapist or licensed acupuncturist may not be reimbursed for medical benefits.” In its Motions, Plaintiff posed the following question: Is Plaintiff entitled to be reimbursed for medical charges incurred for physiotherapy modalities rendered by employees of its facility who are licensed by the State of Florida pursuant to Fla. Stat. §480.041 (2012)?
In support of its Motions, Plaintiff filed the affidavits of Michael White, D.C. (hereinafter “Dr. White”), an employee of Plaintiff and the treating chiropractor for all of the assignor patients in the cases at issue, and Craig Dempsey, Plaintiff’s Chief Compliance Officer. Dr. White’s affidavits (separate affidavits were submitted for each case) establish that he spoke with each assignor patient regarding the accident at issue, conducted physical examinations, and created treatment plans. As part of the physical therapy regimen prescribed by Dr. White, Plaintiff’s employees, who hold massage therapy licenses, administered treatment to the assignor patients. Dr. White states in his affidavit that this treatment was conducted by the employees under his full control and supervision. Finally, Dr. White states that the billing for the aforementioned treatment performed by Plaintiff’s employees were for services ordered and supervised by Dr. White, and were not billed by the employees themselves. Mr. Dempsey’s affidavit mirrors the assertions in Dr. White’s affidavits that the treatment provided to the assignor patients by the Plaintiff’s employees were performed at Plaintiff’s facility, under the supervision and guidance of Dr. White.
Defendant did not present any affidavit, sworn testimony, interrogatory answer, admission, etc. to dispute any of the above facts. Instead, Defendant asked the Court to turn to the rules for statutory construction in order to interpret the statute in question. Therefore, there are no material facts in dispute and the matter is ripe for summary judgment.
Fla. Stat. 627.736(1)(a)(5) states:
Medical benefits do not include massage as defined in s. 480.033 or acupuncture as defined in s. 457.102, regardless of the person, entity, or licensee providing massage or acupuncture, and a licensed massage therapist or licensed acupuncturist may not be reimbursed for medical benefits under this section.
When a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Medical Center of the Palm Beaches v. USAA Casualty Insurance Co., 41 Fla. L. Weekly D2018b (Fla. 4th DCA August 31, 2016) [citing Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005) [30 Fla. L. Weekly S143a].
The Court finds that the statute is clear and unambiguous. Pursuant to the statute, licensed massage therapists are not permitted to be reimbursed for medical benefits. In the cases at issue, there is no evidence before the Court that any licensed massage therapist is seeking to be reimbursed for medical benefits. In contrast, in all of the cases, Plaintiff, who is not a licensed massage therapist, is seeking to be reimbursed for medical benefits. Furthermore, the record indicates that in each of the cases, the services at issue were ordered by the treating chiropractor and performed under his full control and supervision. There is nothing in record that disputes this or states that it was inappropriate or unlawful for these services to be performed in this manner. Finally, while the employees who provided the services do hold massage therapy licenses, there is nothing in the record to indicate that this was a requirement to perform the services. In other words, Defendant did not dispute that the services would be reimbursable had they been performed by a different employee who did not maintain this type of license. Therefore, the Court finds that Fla. Stat. 627.736(1)(a)(5) does not bar Plaintiff from being reimbursed for medical benefits.
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Partial Summary Judgment is Granted.
