27 Fla. L. Weekly Supp. 574a
Online Reference: FLWSUPP 2707HENDInsurance — Personal injury protection — Coverage — Medical expenses — Manual therapy — PIP statute’s exclusion of coverage for massage does not exclude coverage for manual therapy performed by licensed massage therapist
SOUTHERN-OWNERS INSURANCE COMPANY, Appellant, v. JACLYN HENDRICKSON, Appellee. Circuit Court, 7th Judicial Circuit (Appellate) in and for Volusia County. Case No. 2018-10008-APCC. August 23, 2019. Appeal from the County Court Volusia County. Counsel: Carri S. Leininger, North Palm Beach, for Appellant. Matthew J. Mitchell, Port Orange, for Appellee.
OPINION OF THE COURT
(RANDELL H. ROWE, III, J.) This matter came before this Court in its appellate capacity for review of a Final Judgment entered on July 6, 2018, by the County Court following entry of its “Order Granting Plaintiff’s Motion for Summary Judgment & Denying Defendant’s Motion for Summary Judgment.” This Court has considered the briefs filed, reviewed the record on appeal, and heard oral argument presented by counsel.
This action began as a complaint for wrongful denial of Personal Injury Protection (PIP) benefits filed in the lower court. Appellee Jaclyn Hendrickson (“Ms. Hendrickson”), the plaintiff below, was injured in a motor vehicle accident and obtained medical services for her injuries. She was insured for PIP benefits by Appellant Southern-Owners Insurance Company (“Southern-Owners”), the defendant below. Southern-Owners had denied payment of certain medical bills submitted on behalf of Ms. Hendrickson on the basis that the medical services at issue were performed by a licensed massage therapist and that Florida’s PIP statute states that a licensed massage therapist may not be reimbursed for medical benefits. It is undisputed that “manual therapy” was performed on Ms. Hendrickson by a chiropractor’s licensed massage therapist. It also is undisputed that Section 627.736(1)(a)5 of the Florida Statutes excludes medical benefits reimbursement for massage and massage therapy. It further is undisputed that “manual therapy” is a separately coded and compensable medical benefit.
In its summary judgment motion below, Southern-Owners asserted that the otherwise compensable manual therapy benefits claimed by Ms. Hendrickson were not compensable under the statute because the manual therapy was performed by a licensed massage therapist. Ms. Hendrickson argued in her summary judgment motion below that the statute seeks to exclude coverage for massage only and does not exclude coverage for manual therapy or for any other services performed by a licensed massage therapist. Thus, the sole issue for the trial court to determine was whether the PIP statute provides for reimbursement for manual therapy when such therapy was performed by a licensed massage therapist. The trial court observed that the statute does not say that any services performed by a licensed massage therapist, regardless of whether the services were performed under the direction of a doctor or chiropractor, are not compensable. The lower court found that it would be an illogical conclusion and lead to an illogical result to hold that a doctor, or anyone under his or her direction, could perform a compensable medical service and, as long as they were not a licensed massage therapist, they could be reimbursed under the statute. This Court agrees. The trial court went on to rule in favor of Ms. Hendrickson, finding ambiguity in the statute as to whether it excludes coverage for any services performed by a licensed massage therapist. Southern-Owners’ appeal of the trial court’s Final Judgment is now before this Court.
Section 627.736(1)(a)5 of the PIP statute states as follows:
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.
On appeal Southern-Owners argues that the plain language of this statute clearly and unambiguously excludes reimbursement to licensed massage therapists for any and all medical benefits under PIP, not just benefits for massages. Counsel for Southern-Owners argued to the trial court below that if Ms. Hendrickson’s manual therapy had been performed by a chiropractor, an M.D., a D.O., a nurse practitioner, a P.A., or anyone else, then it would have been compensable, but that the statute disallows compensation to a massage therapist who performs the exact same compensable medical service.
Ms. Hendrickson argues on appeal that the plain language of the statute excludes only massage and acupuncture from its definition of medical benefits, making those procedures not compensable by PIP coverage. She further argues that as a result of this exclusion, the statute makes it clear that licensed massage therapists and acupuncturists are not eligible to be compensated for services performed under their respective licenses; however, nothing in the statute precludes individuals who hold licenses to perform massage therapy or acupuncture, but who are otherwise qualified to provide medical services to automobile accident patients, from doing so, so long as those services do not involve massage therapy or acupuncture. Thus, her argument is that the statute seeks to exclude only the procedures (massage and acupuncture) and not the providers (licensed massage therapists and acupuncturists). She insists that the purpose of Section 627.736(1)(a)5 was not to put licensed massage therapists out of business but rather to “kill” massage and acupuncture as forms of compensable medical benefits under Florida’s No-Fault Law.
This Court agrees with Ms. Hendrickson’s interpretation of the statute. On its face Section 627.736(1)(a)5 excludes only massage and acupuncture as medical benefits. A clear and plain reading of the statute evidences that the legislature did not intend to exclude other therapies such as manual therapy. The statute clearly states that massage is not included as a medical benefit regardless of who provides the massage, and the statute goes on to emphasize that even a licensed massage therapist “may not be reimbursed for medical benefits under this section.” (Emphasis added.) Under “this section” of the statute, only massage and acupuncture are excluded and not compensable as medical benefits. The legislature’s inclusion of the term “under this section” clearly demonstrates that it was not the intent that licensed massage therapists could not be reimbursed for any medical benefits under the entire PIP statute, but rather that they may not be reimbursed for massage or massage therapy under subsection (1)(a)5. See Shands Jacksonville Medical Center, Inc. v. State Farm Mutual Automobile Insurance Company, 213 So. 3d 372, 375-76 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1447a] (holding that the term “under this section” in Section 627.736(6)(c) of Florida’s PIP statute “is in fact a reference to subsection (6), not the entirety of Section 627.736,” and thus the phrase at issue in subsection (6)(c) is limited in applicability only to that subsection); approved, 210 So. 3d 1224 (Fla. 2017) [42 Fla. L. Weekly S176a]. See also State Farm Mutual Automobile Insurance Company v. Delray Medical Center, Inc., 178 So. 3d 511, 516-17 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D2467a].
When interpreting the provisions of Florida’s No-Fault Act, both the Supreme Court of Florida and the Fifth District Court of Appeal have held that the provisions of the Act “must be construed liberally in favor of the insured” “in order to effect the legislative purpose of providing broad PIP coverage for Florida motorists.” Progressive Select Insurance Company v. Florida Hospital Medical Center, 236 So. 3d 1183, 1186 (Fla. 5th DCA 2018) [43 Fla. L. Weekly D318a]; approved, 260 So. 3d 219 (Fla. 2018) [44 Fla. L. Weekly S59a].
Therefore, the lower court’s Final Judgment is hereby
AFFIRMED. (TERENCE R. PERKINS, Circuit Judge, concurs.)
