27 Fla. L. Weekly Supp. 1044a

Online Reference: FLWSUPP 2712GURIInsurance — Personal injury protection — Interest — Where insurer twice denied payment for PIP benefits to which insured was entitled because of medical provider’s failure to submit signed report from initial evaluation, made partial payment of benefits once signed report was received and paid additional benefits after receipt of demand letter, insurer owes provider interest from date that it received initial written notice of covered loss — Neither PIP statute nor policy requires provider to provide signed initial report as condition precedent to payment

FLORIDA SPINE AND REHABILITATION, LLC, as assignee of Yvette Gurick, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-008266 CONO 70. January 22, 2020. Steven P. DeLuca, Judge. Counsel: Cris Evan Boyar and Frank T. Noska III, for Plaintiff. Jeffrey C. Hagans, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT/SUMMARY DISPOSITION

THIS CAUSE came before the court on January 22, 2020, on Defendant’s Motion for Summary Judgment/Summary Disposition. The court finds as follows:Background Facts

On 6/1/17, Yvette Gurick was injured in a motor vehicle accident while in a vehicle insured by the Defendant. The policy of insurance issued by the Defendant provided $10,000 in No-Fault (PIP) benefits in compliance with F.S. 627.736. Following the accident Gurick treated with the Plaintiff medical provider and incurred bills for her care and treatment. The Plaintiff submitted bills and records to the Defendant for dates of service 6/5/17 to 6/14/17. The Plaintiff provided the Defendant with a timely, properly filled out and signed CMS-1500 forms, a signed disclosure and acknowledgment form, and daily treatment notes that included the date of the crash, the doctor’s full name, credentials and license number. The treatment note for the first date did not contain a handwritten signature above the doctor’s typed name and credentials. The Defendant received these documents on 6/23/17.

The Defendant determined Gurick would be entitled to PIP benefits but denied payment for this set of bills on 7/7/17. The Defendant’s Explanation of Review, for these dates of service, stated “Please submit a signed report from the initial evaluation.” Thereafter, the Defendant received a detailed initial report that included the doctor’s full name and credentials but it was unsigned (no handwritten signature) on 7/24/17 and a detailed initial report signed (handwritten signature included) on 7/31/17 and the Defendant paid a portion of the bills, without interest on 8/10/17.

The Defendant received a pre-suit demand letter and paid additional amounts but did not pay the appropriate amount of interest. There is no dispute as to medical necessity, related, timely submission of the bills, or coverage.

The court finds these facts are not in dispute.The Dispute

The issue to be decided by this court is whether the Defendant would owe the appropriate amount of issue as of:

a. the date the Defendant received the bills, the disclosure and acknowledgment form and treatment notes on 6/23/17;

b. the date the Defendant received an unsigned (no handwritten signature) detailed initial report on 7/24/17; or

c. the date the Defendant received a signed (handwritten signature) detailed initial report on 7/31/17.

The Defendant seeks Summary Judgment/Summary Disposition as to whether the Defendant owes interest under F.S. §627.736.Analysis

The court begins its analysis with the PIP statute. The statutory provisions under Florida’s No-Fault laws will be construed liberally in favor of the insured. See Farmer v. Protective Cas. Ins. Co., 530 So.2d 356 (Fla. 2d DCA 1988). “The assurance of swift and virtually automatic provision of PIP benefits is accomplished through the requirements of section 627.736(4)(b), which provides that PIP insurance benefits shall be overdue if not provided within thirty days after the insurer is furnished written notice of a covered loss and of the amount of same.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1082 (Fla. 2006) [31 Fla. L. Weekly S358a]. The terms of a statute must be given their plain meaning. Crooks v. State Farm Mut. Auto. Ins. Co., 659 So. 2d 1266 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1984a].

F.S. §627.736(4)(b) states:

Personal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. However:

4. Notwithstanding the fact that written notice has been furnished to the insurer, payment is not overdue if the insurer has reasonable proof that the insurer is not responsible for the payment.

(d) All overdue payments bear simple interest at the rate established under s. 55.03 or the rate established in the insurance contract, whichever is greater, for the quarter in which the payment became overdue, calculated from the date the insurer was furnished with written notice of the amount of covered loss. Interest is due at the time payment of the overdue claim is made.

The court must decide if the lack of a hand signed initial report is “reasonable proof” the Defendant is not responsible for payment. The court recognizes that an insurer may define “reasonable proof” in its policy and may request information that will aid it in the investigation of a claim. Amador v. United Auto. Ins. Co., 748 So. 2d 307, 308 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2437a]. However, not all requests and requirement are reasonable or in compliance with Florida law.

According to the adjuster, nowhere in the policy does it state that a doctor has to create an initial evaluation report, signed or unsigned, (page 31-35). Nowhere in any of Florida’s No-Fault laws does it require a medical provider to provide a hand signed initial report as a condition precedent to payment.

Fla. Stat. §627.736(6)(b) allows an insurer to make a timely written request of additional documentation or information from a medical provider pre-suit and if the provider does not provide a response the insurer would have extra time before payment would be due. Notwithstanding, the Defendant did not avail itself of a F.S. 627.736(6)(b) request in this case. (Page 34).

PIP cases have been actively litigated for many years and there is not one published order or opinion that would stand for the proposition that a PIP insurer can demand a hand signed initial report as a condition precedent to payment of medical bills as the exclusive reason to deny a medical bill. Further, the PIP Statute states at §627.736 (5)(d) a provider may submit a bill to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form. This form, timely submitted and signed by the treating doctor, is in the record and there is no allegation the form was not substantially filled out.

The Defendant’s unilateral decision to demand a hand signed initial report from the Plaintiff is not supported by State law, Federal Law, or the policy of insurance. In the adjuster’s deposition transcript she stated the request for this signed initial evaluation was made by the initial adjuster (page 32). No specific reason was provided in the record.

Florida law is replete with examples of insurers improperly denying claims by demanding documents, forms or information as a condition of payment of a PIP benefit.

In USAA Casualty v. Pembroke Pines, 31 So.3d 234 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D613b] the court held an MRI provider did not have to include a MRI license number on the claim form as a condition precedent to payment. In United Auto v. Professional Medical, 26 So.3d 21 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2500a] the court held a medical provider did not have to provide his medical license number on the CMS 1500 form as a condition precedent to payment. In Crooks v. State Farm Mut. Auto. Ins. Co., 659 So. 2d 1266 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1984a] the court held a PIP insurer could not extend the thirty-day period for paying PIP benefits by requiring claims to be submitted only on specified in-house claims forms as a condition precedent to payment. See also Superior Ins. Co. v. Libert, 776 So. 2d 360 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D381a]. In Martinez v. Fortune Ins. Co., 684 So. 2d 201 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2229b] the court held that the no-fault statute required PIP insurer to pay claimed benefits within 30 days of receipt of claim, rather than within 30 days of receipt of medical verification of claim. In Fortune Ins. Co. v. Pacheco, 695 So. 2d 394 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1076a] the court held that insured could not be required to submit all supporting medical records before 30 — day period for payment began to run. In Star Casualty v. U.S.A. Diagnostics, 855 So.2d 251(Fla.4th DCA 2003) [28 Fla. L. Weekly D2274a] the court held the patient did not have to counter sign the CMS 1500 form as a condition precedent to payment. In Thompson v. Garrison, 27 Florida Law Weekly Supp. 758a (Fla. Broward County Court 2019) this court held an insurer cannot demand a patient’s social security number as a condition precedent to payment of medical bills). See also Coulson v. Fortune, 5 Florida Law Weekly Supp. 45a (Fla. 11th Cir. Court 1997) (insurer cannot demand medical records before issuing payment); Merrick v. Fortune, 8 Florida Law Weekly Supp. 503b (Fla. Sarasota County Court 2001)(insurer cannot demand a medical authorization before issuing payment); Emergency Physicians v. State Farm, 16 Florida Law Weekly Supp. 114a (Fla. Seminole County Court 2008)(a CMS 1500 claim form is sufficient to put the Defendant on notice of the claim); New Hampshire Indemnity v. Pinnacle Medical, 4 Florida Law Weekly Supp. 753a (Fla. 9th Cir. Court 1997)(HCFA form is sufficient to provide the PIP insurer on written notice under 627.736(4)(b). In Florida Medical v. Progressive, 29 So.3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b] the court found an insurer cannot deny payment if the disclosure and acknowledgment form was not properly filled out.

Further, the Defendant is precluded from challenging the quality or sufficiency of the daily treatment note from the first date of service as a basis to deny a claim. See South Florida Pain & Rehabilitation. Inc. (a/a/o Kirt Godfrey) vs. United, 16 Fla. L. Weekly Supp. 981b (Fla. Broward Cty Court 2012)(record keeping is not an issue in the case). Raymond Ali v. McCarthy, 17 Fla. L. Weekly Supp. 661a (Fla. 18th Cir. 2010); Douglas Rapid v. United, 21 Fla. L. Weekly Supp. 816a (Fla. Broward Cty Court 2014, Schiff). Sims v. Brown, 574 So.2d 131 (Fla. 1991)(Record keeping is not an issue when a hospital was sued). Right Choice v. State Farm, 21 Fla. L. Weekly Supp. 181 (Fla. Dade Cty Court 2011)(inadequate record keeping is not a lawful basis for non payment or affirmative defense. See also Nob Hill v. State Farm, 21 Fla. L. Weekly Supp. 195a (Fla. Broward County Court 2013). State Farm v. CMI, 21 Fla. L. Weekly Supp. 239a (Fla. 17th Cir. Court 2013)(a provider’s documentation is deficient without offering anything more does not create an issue of material fact to avoid Summary Judgment).

In Christian v. Department of Health, 161 So.3d 416 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D537a] where the court held

Although Section 460.413(1)(m) requires that a chiropractor keep medical records that justify the course of treatment, it does not require that the chiropractor justify that course of treatment on every single visit where treatment is being provided as part of an ongoing treatment plan. Likewise, rule 64B2-17.0065(3) also provides that a chiropractor must keep a medical record that justifies the course of treatment. We conclude that, in context, the plain meaning of the term medical record refers to the record taken as a whole and not that the notes for a particular day must again justify the treatment provided. This is made abundantly clear when the rule is read together with rule 64B2-17.0065(6), which delineates what must be specifically documented in the daily record once a treatment plan has been established. This rule does not require redundant justification for any ongoing treatment.

More minimal record keeping cases include Weston v. United, 21 Florida Law Weekly Supp. 306b (Fla. 11th Cir. Court 2013); Bedford v. Allstate, 27 Florida Law Weekly Supp. 180a (Fla. Orange Cty Court 2015); Nob Hill v. State Farm, 21 Florida Law Weekly Supp. 195a (Fla. Broward Cty Court 2013); Douglas Rapid v. United, 21 Florida Law Weekly Supp. 816a (Fla. Broward Cty Court 2014); Martinez v. United, 21 Florida Law Weekly Supp. 820a (Fla. Broward Cty Court 2014); American Health v. United, 23 Florida Law Weekly Supp. 615b (Fla. Broward Cty Court 2015); B & A Diagnostic v. Progressive, 24 Florida Law Weekly Supp. 851a (Fla. Dade Cty Court 2013); Dr. John Calvanese v. State Farm, 26 Florida Law Weekly Supp. 239b (Fla. Broward County Court 2017); Coast Chiropractic v. State Farm, 26 Florida Law Weekly Supp. 327a (Fla. Broward Cty Court 2018. Benson); Michael Delesparra D.C., P.A. v. MGA, 19 Florida Law Weekly Supp. 854c (Fla. Broward County, Judge Lee 2012); Priority Medical v. State Farm, 21 Florida Law Weekly Supp. 201b (Fla. Broward Cty Court 2013, Judge Lee).

Accordingly this court will not rewrite or interpret the statute as requested by the Defendant to require a hand signed initial report or certain information that must be contained in the initial report as basis for a PIP insurer to delay or deny payment. Had the Florida legislature wanted PIP insurers to require this document as part of the claims process the Florida Legislature would have included it in the PIP Statute. The court cannot rewrite the No-Fault Statute. In Thrivent Fin. for Lutherans v. State, Dept. of Fin. Services, 145 So. 3d 178, 182 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D1636a] the court held “. . . .this Court may not rewrite statutes contrary to their plain language.” Hawkins v. Ford Motor Co., 748 So.2d 993, 1000 (Fla.1999) [24 Fla. L. Weekly S480a]. “[P]olicy concerns . . . must be addressed by the Legislature.” Id.

The Plaintiff asks the court to interpret the statutes strictly as drafted and not include any additional requirements or provisions not contemplated by the Florida legislature as argued by the Defendant in this case. In Florida, statutes will not be interpreted in a manner that leads to an unreasonable or ridiculous result or a result obviously not intended by the legislature. See Drury v. Harding, 461 So.2d 104 (Fla. 1984); Palm Springs General Hospital, Inc. of Hialeah v. State Farm Mut. Auto. Ins. Co., 218 So.2d 793 (Fla. 3d DCA 1969), affirmed, 232 So.2d 737 (Fla. 1970).

Nor can the court rewrite a policy of insurance to allow an insurer demand this information as a condition of payment for medical benefits especially where insurance policies must be approved by the State of Florida. See Pol v. Pol, 705 So. 2d 51, 53 (Fla. 3d DCA 1997) [23 Fla. L. Weekly D75a] (“It is well established that a court cannot rewrite the clear and unambiguous terms of a voluntary contract.”).Conclusion

For the foregoing reasons the Defendant’s Motion for Summary Judgment/Summary Disposition is hereby denied.

The court hereby finds statutory interest is calculated from the date the insurer was furnished with written notice of the amount of a covered loss and this is 6/23/17 which is the undisputed date it received the CMS-1500 forms and other documentation. Florida law does not permit a PIP insurer to require a hand signed initial report, or a medical report of any kind, as a condition precedent of payment of medical bills or as a reasonable basis to deny a medical claim.