24 Fla. L. Weekly Supp. 758b
Online Reference: FLWSUPP 2409ASANInsurance — Personal injury protection — Coverage — Medical expenses — Necessity and relatedness of services — Insurer cannot challenge medical necessity and relatedness of services where insurer paid claim, albeit at reduced amount — Section 627.736(4)(b)6, which provides that insurer may assert that claim was unrelated and not medically necessary at any time, allows insurer to challenge relatedness and necessity only when insurer has not previously determined through claim adjustment process and in consideration of terms of policy that services were related and necessary
TOTAL HEALTH CARE OF FLORIDA, INC. (a/a/o Araceli Sanchez), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-005951 (81). August 15, 2016. Jane D. Fishman, Judge. Counsel: Gary D. Gelch and Lawrence M. Kopelman, Gelch & Associates, P.A., Plantation, for Plaintiff. Matthew W. Innes and Edward N. Winitz, for Defendant.
ORDER GRANTING PLAINTIF’S MOTIONFOR PARTIAL SUMMARY JUDGMENTAS TO MEDICAL NECESSITY AND RELATEDNESS
THIS CAUSE came to be considered on July 27, 2016 on Plaintiff’s Motion for Partial Summary Judgment as to Medical Necessity and Relatedness. The Court having reviewed the Motion, relevant legal authorities; having heard arguments of counsel, and having been sufficiently advised in the Premises, the Court finds as follows:FACTS
On December 31, 2012, an insured of the Defendant, Araceli Sanchez (“claimant”), was involved in a motor vehicle accident and sustained injuries. As a result of the accident, the claimant sought treatment with Plaintiff. From February 21, 2013 to September 9, 2013, Plaintiff provided medical services to claimant which totaled $6,490.00. The policy at issue requires Defendant to pay 80% of all reasonable expenses incurred for medically necessary services. The policy further states: WE WILL NOT PAY ANY CHARGE THAT THE NO-FAULT ACT DOES NOT REQUIRE US TO PAY, OR THE AMOUNT OF ANY CHARGE THAT EXCEEDS THE AMOUNT THE NO-FAULT ACT ALLOWS TO BE CHARGED. Plaintiff timely submitted its bills for services to Defendant. Pursuant to the Explanation of Reviews (“EORs”), Defendant paid for all of Plaintiff’s date of service at an amount less than 80%. The EORs did not contain any language suggesting that Defendant was contesting the medical necessity and relatedness of Plaintiff’s charges. On April 3, 2015 Plaintiff filed suit against Defendant challenging whether Defendant had breached its policy of insurance by failing to pay 80% of all reasonable expenses and instead calculating reimbursements in accordance with the fee schedule enumerated in FS 627.736(5)(a)1 formerly FS 627.736(5)(a)2. On December 24, 2015, in response to Plaintiff’s Request for Admissions, Defendant admitted that the services at issue were medically necessary and related to the accident, but qualified its response by stating that “discovery is ongoing and Defendant reserves its rights to contest medical necessity at any time pursuant to FS 627.736(4)b”.
Thereafter, on April 12, 2016, Plaintiff filed its Motion for Partial Summary Judgment on the issues of medical necessity and relatedness. On July 22, 2016, five days prior to the scheduled hearing on Plaintiff’s Motion for Partial Summary Judgment and more than three years after the services at issue were rendered, Defendant filed an affidavit of Brett E. Weinstein D.C. stating in his opinion that some of the services provided by the Plaintiff were related and necessary while others were not. Defendant claims this affidavit creates a question of fact on the relatedness and necessity of the services listed in the affidavit and that FS 627.736(4)(b)6 allows Defendant to make that assertion at any time, including after payment of the claim. Plaintiff contends that based upon the policy of insurance and its interpretation of FS 627.736(4)(b)6 partial summary judgment must be granted in its favor.
In support of its Motion, Plaintiff filed the affidavit of Todd Sussman, D.C. who opined that the treatment rendered by Plaintiff to the claimant was medically necessary and related to the subject accident.
STATE FARM’S POLICY ANDFLORIDA STATUTE (4)(b)6
Defendant’s policy of insurance unequivocally states that it will not pay any charge that the No-Fault Act does not require it to pay. The No-Fault Act and the policy require State Farm to pay 80% of all reasonable expenses for medically necessary services resulting from bodily injury arising out of the ownership, maintenance or use of a motor vehicle. (Florida Statute 627.736(1)a). Consequently, Defendant’s policy charges it with the duty to make a determination prior to payment that the service at issue is, in fact, related to the accident and medically necessary. Defendant would actually be in violation of its policy if it paid for a charge which was not related to the accident and medically necessary.
Florida Statute 627.736(4)(b) states that benefits are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount of same. It is undisputed that proper notice of the loss was given. Section (4)(b)2 provides that if an insurer pays only a portion of a claim or rejects a claim the insurer shall provide an itemized specification of each item reduced or declined and any information the insurer desires the claimant to consider related to the medical necessity of the denied treatment. Again, it is undisputed that Defendant never denied the claims at issue, but reduced the reimbursement. Section (4)(b)6 states: This 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 and that such assertion may be made at any time, including after payment of the claim or after the 30-day period for payment set forth in this paragraph.
Defendant relies on the case Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual. Auto. Ins. Co., 137 So. 3d 1049 (Fla. 4th DCA) [39 Fla. L. Weekly D491a], for the proposition that even after the claim is denied or reduced, an insurance company may still defend the suit by the provider claiming additional amounts on the grounds that the service was not medically necessary or that the amount was not reasonable. Defendant also relies on All Family Clinic of Daytona Beach, Inc. v. State Farm Mutual Auto. Ins. Co., 2012 WL 2297734 (S.D. Fla. June 13, 2012).
Notably those cases do not deal directly with the interpretation of 627.736(4)(b)6. While the law permits insurers to assert that the services are unrelated or unnecessary, even after payment of the claim, Defendant cites to no cases which interpret 627.736(4)(b)6 as allowing such assertion to be made after the insurer has made a determination based upon the language in its policy that the service is related and necessary. .
This Court believes that a proper interpretation of 627.736(4)(b)6 allows an insurer to assert that a service is not related or necessary only when the insurer has not previously determined through the adjustment process of the claim and in consideration of the terms of the policy that the services were, in fact, related and necessary. To conclude otherwise would render the provisions of the policy meaningless and give no finality to a claim that Defendant has previously deemed compensable.
Here, Defendant had every opportunity prior to making its determination that the services were related and necessary to obtain the information it now seeks to use in support of its effort to defeat Plaintiff’s Motion for Partial Summary Judgment, yet failed to do so. The affidavit filed by Brett Weinstein, D.C. contains the exact same documentation and materials Defendant had at its disposal prior to determining the compensability of the claim. Defendant, as well as Plaintiff, are bound by the provisions of the policy. Consequently, as a result of Defendant’s payment of the claim, although at a reduced amount, and the language of the policy requiring Defendant not to pay any charge unless required by the No-Fault Act, the Court determines that the services at issue were related to the accident and medically necessary as a matter of law.
CONCLUSIONS OF LAW
This Court agrees with the opinions set forth in the following cases:
Glenn V. Quintana, D.C., P.A. (a/a/o Melissa N. Evans) v. State Farm Mutual Automobile Ins. Co., 19 Fla. L. Weekly Supp. 882a (Court does not feel that when the legislature created 627.736(4)(b), that they intended for insurers to be able to retroactively deny previously paid bills, and so the Court finds in favor of the Plaintiff on this issue. Any of the services which were previously paid by State Farm are deemed medically necessary, and related to the accident).
MR Services I, Inc. d/b/a C&R Imaging of Hollywood (Tamara G. Rodriquez) v. Star Casualty Insurance Co., 22 Fla. L. Weekly Supp. 856b (At the time of its Answer the Defendant did not have any report which asserted the Plaintiff’s MRIs were not medically necessary or related. In fact it was not until five years later after the MRIs were performed that Dr. Matthews first gave a written opinion that said services were not RRN. The Court seriously doubts that, but for the instant litigation, the Defendant would have inquired into the medical necessity/relatedness of the MRIs it paid. To wait until suit is filed, and for no other reason that because suit is filed, violates the carrier’s obligation of good faith and fair dealing; to put more simply, its action amounts to bad faith. It is clear that the legislature did not intend for Fla. Stat. 627.736(4)(b) to be used as a shield to extend litigation, and provide a do-over for the insurer when, but for the lawsuit, it would not have done such a review).
Martinez Health, Inc. (a/a/o Monove Montinard) v. State Farm Fire and Casualty Co., Miami-Dade County, Case No. 12-25694 SP 05 (6), County Court Judge Wendell M. Graham, July 17, 2016 (The Court rejects Defendant’s attempt to utilize F.S. 627.736(4)(b) as a litigation tactic to extend or prolong litigation. All of the services were paid and State Farm never requested repayment or filed a counter-claim).
All Family Clinic of Daytona Beach, Inc. d/b/a Florida Medical Associates (a/a/o Michael Fink) v. State Farm Mutual Automobile Ins. Co., Volusia County, Case No. 15-20779-CONS, County Court Judge Shirley Green, December 28, 2015 [23 Fla. L. Weekly Supp. 1050a] (Waiver is an intentional relinquishment of a known right or voluntary relinquishment of a known right or conduct which warrants an inference of relinquishment of a known right. When waiver is implied from conduct, the acts, conduct or circumstances relied upon to show waiver must make out a clear case. It is undisputed that State Farm made no attempts to investigate whether the MRI was reasonable, necessary or related until after the current lawsuit was filed).
Open Magnetic Scanning, Ltd. d/b/a Windsor Imaging (a/a/o Jenita Foney) v. State Farm Mutual Automobile Ins. Co., Broward County, Case No. 13-6873 COWE 82, County Court Judge Alan R. Marks, June 30, 2016 (Defendant does not challenge the propriety of its previous payment nor does it assert recoupment or setoff. To the contrary it has applied that prior payment to reduce the benefits otherwise available under the insured’s policy, does not seek its return and wants credit for same against the balance plaintiff claims due. It argues that, in a suit to establish the reasonableness of its charge the plaintiff must re-prove, once again, that its charge is a covered loss, i.e. medically necessary and related).
This Court finds no genuine issues of fact regarding whether the treatment rendered by Plaintiff in this case to Araceli Sanchez was medically necessary and related to the December 31, 2012 motor vehicle accident. Furthermore, this Court finds that dates of service February 21, 2013 to September 9, 2013 were medically necessary and related to the subject accident.
Therefore it is,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment as to Medical Necessity and Relatedness is GRANTED.
