26 Fla. L. Weekly Supp. 230a
Online Reference: FLWSUPP 2603VAZQInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — Pursuant to section 486.161(1), licensed massage therapist was not required to be licensed as physical therapist or directly supervised by another licensed professional to lawfully render physical therapy that requires use of physical agents and is incidental to practice of massage therapy
QUALITY DIAGNOSTIC HEALTHCARE INC., a/a/o Lazaro Quesada Vazquez, Plaintiff, v. GOV’T EMPLOYEES INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 17-11529 SP 26 (3). May 2, 2018. Gloria Gonzalez-Meyer, Judge. Counsel: Christian Carrazana, Christian Carrazana P.A., Homestead, for Plaintiff. Jordan Martin, for Defendant.
FINAL DECLARATORY JUDGMENT
THIS ACTION was heard on April 26, 2018 on Plaintiff’s motion for final summary judgment. After granting said motion, the Court makes the following findings of fact and conclusions of law as part of the Court’s final declaratory judgment:1
FINDINGS OF FACT
1. This is an action for declaratory relief governed by the Florida Declaratory Judgement Act, §§ 86.011, Fla. Stat., et. seq.
2. At all times material hereto, Defendant issued a contract for automobile insurance to Modesta Quesada Vazquez (“insured”), policy no. 4214593644, which provides among other things, personal injury protection insurance (“pip”) coverage to the policy limit of $10,000 as required by Florida law.
3. Lazaro Quesada Vazquez (“claimant”) was involved in a motor vehicle accident on July 5, 2017 and suffered bodily injuries a result of same.
6. Following said accident, the claimant sought treatment and care with the Plaintiff. [Editor’s note: Paragraph numbering is as it appears on court document.]
7. A licensed medical physician, Dr. Moulton Kean M.D., saw the claimant at Plaintiff’s facility and prescribed a treatment plan.
8. Dr. Kean prescribed a treatment plan that included but was not limited to the following physical therapy: (a) hot/cold packs; (b) electric stimulation; (c) ultrasound; (d) neuromuscular reeducation; (e) therapeutic exercises/activities; (f) mechanical traction, etc.
9. Each of the therapy modalities prescribed by Dr. Keane M.D., require the use of physical agents.
10. The physical therapy was rendered by Michel Viera, L.M.T. (“Veira”) who is a licensed massage therapist.
11. The therapy was rendered at Plaintiff’s facility without direct supervision by Dr. Keane M.D., or a licensed physical therapist.
12. The claimant incurred $3,864.00 for office visits with the treating physician and the aforementioned treatment rendered by Viera on July 14, 2017 to August 3, 2017.
13. Plaintiff submitted said expenses to Defendant for payment of pip insurance benefits under said policy of insurance.
14. The expenses, moreover, did not include charges for massage therapy.
15. Upon receipt of said expenses, Defendant processed the claim under claim no. 0525801250101034.
16. After processing the claim, Defendant denied payment on the grounds that the therapy rendered by Viera is unlawful because Viera is not a licensed physical therapist and nor was Viera directly supervised by a licensed physician or a physical therapist when the therapy was rendered.
17. As a consequence of the denial, Plaintiff then filed this action in which Plaintiff seeks a declaratory judgment on the issue raised by Defendant.
CONCLUSIONS OF LAW
18. The issue before the Court is whether a person defined as a licensed massage therapist under § 480.033(4), Fla. Stat., but not licensed as a physical therapist under Chapter 486, Fla. Stat., may ‘lawfully render’ physical therapy as defined by § 486.021(11), Fla. Stat., for purposes of qualifying for payment of assigned personal injury protection insurance benefits under § 627.736, Fla. Stat?2
19. Defendant contends that massage therapists are prohibited by the physical therapy licensing statute, i.e., § 486.028, Fla. Stat., from rendering physical therapy unless directly supervised by a physical therapist or other licensed professional (e.g., a medical physician). In advancing this position, Defendant relies on § 486.028, Fla. Stat., which provides that “[n]o person shall practice or hold herself or himself out as being able to practice physical therapy in this state unless she or he is licensed in accordance with the provisions of this chapter . . . .”
20. Defendant’s reliance on the licensing requirements under Chapter 486 is misplaced whereas here, the licensed massage therapist is exempt under § 486.161(1), Fla. Stat. Section 486.161(1) states that “[n]o provision of this chapter shall be construed to prohibit any person licensed in this state from using any physical agent as part of, or incidental to, the lawful practice of her or his profession under the statutes applicable to the profession of . . . massage therapist . . . .”3 (emphasis added)
21. The physical therapy in the present case is within the statutory exemption; the therapy requires the use of physical agents and is incidental to the practice of massage therapy.4
22. The opinion of the Third District Court of Appeal in State Farm Mut. Auto. Ins. Co., v. Universal Medical Ctr. of South Florida, 881 So.2d 557(Fla. 3d DCA 2004) [29 Fla. L. Weekly D652e] is controlling precedent on the issue before the Court. There, State Farm argued that the physical therapy rendered by unlicensed medical assistants is illegal because they were not licensed as physical therapists under Chapter 486. The Third District Court rejected this contention. The Court instead found that under § 486.161(1), the medical assistants were exempt from the licensing requirements under Chapter 486. Id. at 560. In reaching this conclusion, the Court reasoned that the therapy is incidental to the lawful practice of the supervising physician. Id.
23. Finally, the Court has not overlooked that the unlicensed medical assistants in State Farm, supra, were directly supervised by a medical physician whereas here, the massage therapist was not. This distinction, however, is immaterial since massage therapists are one of the enumerated professions exempted under § 486.161(1).
24. ACCORDINGLY, it is hereby ORDERED & ADJUDGED that a FINAL DECLARATORY JUDGMENT is entered for Plaintiff, QUALITY DIAGNOSTIC HEALTHCARE INC., as assignee of Lazaro Quesada Vazquez, and against the Defendant, GOVERNMENT EMPLOYEES INSURANCE CO., declaring that:
(a) the statutory requirements under Chapter 486, Fla. Stat., are inapplicable due to the statutory exemption under § 486.161(1); therefore, Plaintiff’s licensed massage therapist, Michel Viera, L.M.T., need not be licensed as a physical therapist under Chapter 486 nor directly supervised by another licensed professional to lawfully render the physical therapy at issue;
(b) the physical therapy rendered by the Plaintiff was lawfully rendered, and as such, Defendant is liable on the policy to the Plaintiff for the outstanding medical expenses;
The Court reserves jurisdiction to award Plaintiff damages for the outstanding medical expense as supplemental relief incidental to this declaratory judgment; the Court also reserves jurisdiction to award Plaintiff taxable costs and attorney fees for successful prosecution of this action pursuant to §§ 57.041 and 627.428, Fla. Stat.
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1A trial court must make written findings of fact and conclusions of law when rendering a declaratory judgment. Trump Endeavor 12, LLC v. Florida Pritkin Center LLC., 208 So.3d 311 (Fla. 3d DCA 2016) [42 Fla. L. Weekly D26a].
2For pip benefits to be compensable under the pip statute, treatment must be “lawfully” rendered. § 627.736(1)(a)1., Fla. Stat. The term “[l]awful” or “lawfully” means in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment.” § 627.732(11), Fla. Stat. (emphasis added).
3The word “incidental” in the phrase “incidental to” under § 486.161(1) is defined by the dictionary as “happening as a minor accompaniment to something else.” https://en.oxforddictionaries.com/definition/incidental. See Glass v. Captain Katanna’s Inc., 950 F.Supp.2d 1235, 1243 (M.D. Fla. 2013) (“In discerning a statute’s plain meaning, the Florida Supreme Court “looks first to the terms’ ordinary definitions,” which may be “derived from dictionaries.’ ”) (citing Metro. Cas. Ins. Co. v. Tepper, 2 So.3d 209, 214 (Fla.2009) [34 Fla. L. Weekly S111a])
4Although massage therapy is not compensable under the pip statute, see § 627.736(1)(a)5., the modalities at issue in the present case is not massage therapy; the modalities do not manipulate the soft tissue by hand or foot. See § 480.033(3), Fla. Stat. (defining massage as “the manipulation of the soft tissues of the human body with the hand, foot, arm, or elbow . . . .”)
