25 Fla. L. Weekly Supp. 633a

Online Reference: FLWSUPP 2507RAYMInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Summary judgment — Affidavit of treating physician was sufficient to meet provider’s burden of proof on issue of reasonableness, causal relationship, and necessity of treatment provided to insured — Court cannot consider untimely filed deposition transcript of treating physician or other purported evidence offered in opposition to provider’s motion for partial summary judgment — Because defendant failed either to substantially impeach medical expert testimony of treating physician or present countervailing evidence from licensed physician, provider is entitled to summary judgment on reasonableness, relatedness, and necessity of treatment

LAB QUEST & FAMILY CHIROPRACTIC ASSOCIATION, INC., a/s/o Jacques Raymond, Plaintiff, v. OWNERS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-CC-008904-O. June 21, 2017. Eric H. Dubois, Judge. Counsel: Dave T. Sooklal, Anthony-Smith Law, P.A., Orlando, for Plaintiff. Ryan Zainz, Vernis & Bowling of the Gulf Coast, P.A., Tampa, for Defendant.

ORDER REGARDING PLAINTIFF’S MOTION FOR PARTIALSUMMARY JUDGMENT AS TO THE REASONABLENESS,RELATEDNESS, AND NECESSITY OF CERTAIN TREATMENTS

THIS CAUSE having come before the Court on June 15, 2017, upon Plaintiff’s Motion for Partial Summary Judgment as to the Reasonableness, Relatedness and Necessity of Certain Treatments and the Court having heard argument from both parties and otherwise being fully advised of the premises makes the following findings of fact and conclusions of law:

FACTUAL BACKGROUND AND UNDISPUTED FACTS

1. Defendant, OWNERS INSURANCE COMPANY (“Owners” or “Defendant”), issued a policy of automobile insurance to Jacques Raymond (“Raymond”) which provided up to $10,000.00 in Personal Injury Protection (“PIP”) benefits.

2. On February 14, 2013, Raymond, was involved in a motor vehicle accident where he sustained injuries.

3. Plaintiff, LAB QUEST & FAMILY CHIROPRACTIC ASSOCIATION, INC., a/s/o JACQUES RAYMOND (“Lab Quest” or “Plaintiff’), rendered treatment to the Raymond from February 14, 2013, through March 28, 2013, pursuant to an assignment of benefits executed in its favor.

4. Plaintiff filed the instant lawsuit seeking reimbursement for the above mentioned treatment.

5. Subsequently. Plaintiff filed the instant Motion for Partial Summary Judgment on November 1, 2016, wherein Plaintiffs relies on the affidavit of Dr. Snow, Raymond’s treating physician, who attested to the following in his affidavit, which is appended to Plaintiff’s Motion for Partial Summary Judgment:

a. Raymond presented to Lab Quest on February 14, 2013, and complained of cervical and lumbar pain as a result of the injuries he sustained in the subject motor vehicle accident;

b. Dr. Snow conducted an examination of Mr. Raymond on February 14, 2014, and diagnosed him with a neck sprain; thoracic sprain; lumbar sprain; muscle spasm; cervicalgia; and lumbago;

c. Based on his diagnosis and Raymond’s complaints, Dr. Snow prescribed a treatment program consisting of conservative chiropractic treatment, which is reflected in the medical records attached to Dr. Snow’s affidavit; and,

d. The treatment provided to Raymond from February 14, 2013, through March 28, 2013, was reasonable, causally related and medically necessary to the injuries Raymond sustained in the subject motor vehicle accident.

6. A Notice of Hearing was filed on March 15, 2017 setting Plaintiff’s Motion forPartial Summary Judgment for hearing on June 15, 2017.

7. A hearing was held on June 15, 2017. regarding Plaintiff’s Motion for Partial Summary Judgment.

8. On June 1 4. 2017, one day prior to the hearing, Defendant filed the deposition transcript of Robert Shawn Snow, D.C., and its response to Plaintiff’s Motion for Partial Summary Judgment wherein Defendant attached a copy of the policy of insurance; a copy of a letter to Plaintiff; Defendant’s Answer and Affirmative Defenses; and, a “Chiropractic Billing Guide.”.

ARGUMENT BY THE PARTIES

9. Plaintiff contends that there is no genuine issue of material fact regarding the reasonableness, causal relatedness and medical necessity of the entirety of the treatment at issue in this case and relies on Dr. Snow’s affidavit in support thereof.

10. Plaintiff argues that Dr. Snow’s affidavit is sufficient to satisfy Plaintiff’s burden of proof regarding the reasonableness, relatedness, and necessity of the treatment at issue in this case, which shifts the burden to Defendant to rebut the same.

11. In addition, Plaintiff avers that the Defendant has failed to present any evidence to rebut Dr. Snow’s testimony, as the record is devoid of any expert testimony rebutting Dr. Snow’s affidavit.

12. Further, Plaintiff filed a Notice of Withdrawal of CPT codes 93784 and 97016 in this case pursuant to Fla. R. Civ. P. 1.420, thus the aforementioned CPT codes are no longer at issues in this litigation.¹

13. In response, Defendant filed the deposition transcript of Dr. Snow, one day prior to the instant hearing and claims that Dr. Snow attested that CPT Code 93784 was improperly billed.

14. In addition, Defendant also filed a response to Plaintiff’s Motion for Partial Summary Judgment on June 14, 2017, and attached a copy of the policy of insurance; a copy of a letter to Plaintiff; Defendant’s Answer and Affirmative Defenses; and, a “Chiropractic Billing Guide.”

15. Also, Defendant argued that reasonableness, relatedness and necessity are always an issue for the trier of fact to decide.

16. Defendant did not file an affidavit of a physician or any other expert to rebut Dr. Snow’s affidavit.

FINDINGS AND CONCLUSIONS OF LAW

17. Summary judgment shall be awarded in favor of the moving party “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). “Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings, and summary judgment is appropriate where, as a matter of law, it is apparent from the pleadings, depositions, affidavits, or other evidence that there is no genuine issue of material fact and that the moving party is entitled to relief as a matter of law.” Florida Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006) [31 Fla. L. Weekly S212a]. The party seeking summary judgment will bear the initial burden of proof in informing the court of the basis for the motion and identifying evidence demonstrating that there is no genuine issue of material fact. Kitchen v. Ebonite Rec. Ctrs., Inc., 856 So. 2d 1083, 1085 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2401a].

18. Furthermore, under existing case law, the testimony of the treating physician that care given to the patient was causally related, and medically necessary is sufficient for the Plaintiff to meet its burden of proof as to this element of the claim. Progressive Express Insurance Company v. Quality Diagnostic Inc., 13 Fla. L. Weekly Supp. 433a (Fla. 11th Cir. Ct. App. 2006); Total Health Care Chiropractic, P.A. v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 505a (Fla. Broward Cty. Ct. 2006); United Automobile Insurance Company v. Weschel Pain and Rehab. Center, Inc., 12 Fla. L. Weekly Supp. 1035a (Fla. 17th Cir. Ct. App. 2005); Interscan, Inc. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 377a (Fla. Miami-Dade Cty. Ct. 2004).

19. In this case, Plaintiff filed the affidavit of Dr. Snow, Raymond’s treating physician attesting to the reasonableness, causal relatedness and medical necessity of the treatment at issue in this case.

20. The affidavit is sufficient to establish Plaintiff’s burden regarding the reasonableness, causal relatedness and medical necessity of the treatment at issue in this case. See Progressive Express Insurance Company v. Quality Diagnostic Inc., 13 Fla. L. Weekly Supp. 433a (Fla. 11th Cir. Ct. App. 2006); Total Health Care Chiropractic, P.A. v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 505a (Fla. Broward Cty. Ct. 2006); United Automobile Insurance Company v. Weschel Pain and Rehab Center. Inc., 12 Fla. L. Weekly Supp. 1035a (Fla. 17th Cir. Ct. App. 2005); Interscan Inc. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 377a (Fla. Miami-Dade Cty. Ct. 2004).

21. Thus, it is incumbent upon the Defendant to submit evidence to rebut Plaintiff’s Motion for Partial Summary Judgment and Dr. Snow’s affidavit in support thereof or the court will presume that he had gone as far as he could and a summary judgment could be properly entered. Holl v. Tolcott, 191 So. 2d 40, 43 (Fla. 1966).

22. As an initial matter, this Court cannot consider the deposition transcript of Dr. Snow or any other purported evidence filed by Defendant on the day prior to the instant hearing as it was untimely filed with this Court. See Fla. R. Civ. P. 1.510(c).

23. The subject hearing has been noticed for three (3) months allowing Defendant ample time to file its opposition to Plaintiff’s Summary Judgment Motion.

24. Furthermore, in order to create any genuine issue of material fact regarding whether the subject treatment was reasonable, related or necessary, the Defendant was required to either substantially impeach the medical expert testimony of the treating physician, or present countervailing evidence from the licensed physician. Cicero Ortho-Med Center v. United Automobile Insurance Co., 11 Fla. L. Weekly Supp. 922a (Fla. Miami-Dade Cty. Ct., 2004); Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1993).

25. The Defendant failed to meet the above mentioned burden as there was not any admissible record summary judgment evidence to impeach Dr. Snow’s affidavit.

26. Thus, this Court finds that there is no genuine issue of material fact regarding the reasonableness, relatedness and necessity of the treatment at issue in this case, whereby entitling Plaintiff to summary judgment regarding the same.

Accordingly, it is ORDERED AND ADJUDGED, that Plaintiff’s Motion for Partial Summary Judgment as to the Reasonableness, Relatedness, and Necessity of Certain Treatments is hereby GRANTED.

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¹See Plaintiff’s Notice of Withdrawal filed with this Court on or about May 4, 2016.