5 Fla. L. Weekly Supp. 170a

Insurance — Personal injury protection — Insurer who has not obtained consent of insured must obtain report from independent medical examiner licensed under same chapter as insured’s treating physician before refusing to pay treating physician on ground that bills were not necessary, related, or reasonable — Report by neurologist not sufficient to support withdrawal of benefits for treatment by chiropractor — Insurer who fails to comply with statute cannot raise common law defenses — Insured’s motion for directed verdict and/or motion for judgment notwithstanding verdict and/or motion for new trial is granted, and judgment will be entered in favor of insured for entire sum shown to be owing treating chiropractor, less statutory percentage, without regard to insuror’s defenses of reasonableness or necessity of the amount

METELET VILES, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. In the County Court of the 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 96-2939 CC 21. November 6, 1997. Cecilia M. Altonaga, Judge. Counsel: Tony Sirven, Sirven and Adams, for Plaintiff. Albert Moon, Weinstein, Baily and Moon, P.A., for Defendant.

ORDER ON POST-TRIAL MOTIONS

THIS CAUSE came before the Court for a hearing on October 22, 1997, on Plaintiff, Metelet Viles’ “Motion for Directed Verdict and/or Motion for Judgment Notwithstanding the Verdict and/or Motion for New Trial.” This case, involving a claim for personal injury protection benefits, was tried before a jury on September 10, 1997, and resulted in a verdict in favor of the Plaintiff, Metelet Viles (hereinafter “Viles”), in the amount of two thousand dollars ($2,000.00). Upon a review of the Motion, the contents of the court file, Defendant, United Automobile Insurance Company’s (hereinafter “United”) papers in opposition, and having considered argument of counsel and applicable law, the Motion is GRANTED for the reasons that follow.

FACTUAL BACKGROUND

Viles, a policy holder with United for personal injury protection benefits, sued for unpaid medical bills claimed to be related to an automobile accident which occurred on October 5, 1995. Viles had previously had an automobile accident on December 30, 1994 and treated with a chiropractor, Dr. Robert Frankl, for his injuries. Subsequently, on October 5, 1995, Viles was involved in the accident at issue, and continued to treat with Dr. Frankl. Among the bills which form the subject of this suit are bills for three medical visits to Dr. Frankl following the October 5 accident, but which Dr. Frankl billed to Viles’ personal injury protection carrier, Oak Casualty. At the trial, Dr. Frankl, who testified for the Plaintiff, admitted that he had not returned any payment to Oak Casualty.

Cross-examination of Dr. Frankl and the Plaintiff, Viles, revealed a number of additional inconsistencies in the position taken by the Plaintiff that the outstanding medical bills were related, necessary and reasonable, and therefore should be paid by United. For example, although Viles denied that any therapy took place on the first visit billed to the October 1995 accident, Dr. Frankl billed for therapy. Dr. Frankl billed for Saturday visits, and yet Viles denied any Saturday or Sunday visits occurred. Dr. Frankl billed for x-rays although he knew that such had been taken at the hospital the day of the accident. Dr. Frankl billed for “management” services, yet never explained what the services consisted of or why they were necessary. There were discrepancies between Viles’ complaints of pain and Viles’ outside activities, including work duties, and the medical records of the hospital where he was taken following the accident. Contrary to the position taken by Dr. Frankl are records of a board-certified neurologist, Dr. Alan Wagshul, which were introduced in evidence, and which attribute Viles’ complaints to the accident of December 1994 rather than the later accident.

Viles completed a full course of treatment with Dr. Frankl and was discharged. Dr. Frankl opined that the total amount of his bills, the sum of $8,995.00, and the treatment given Viles, were reasonable, necessary and related. Dr. Frankl also testified that United paid $1,100 of the total bills submitted, but refused to pay the sum still owing, which was forwarded to United under separate cover on two later occasions. Dr. Frankl has never asked the Plaintiff for payment of the remainder of the bill.

At trial, United did not put on any expert testimony to contradict Dr. Frankl’s opinion. Moreover, no evidence was presented that United obtained a medical report from a physician licensed under the same chapter as Plaintiff’s treating physician, a chiropractor, before denying payment of the outstanding bills. At the close of the Defendant’s case, Viles moved for a directed verdict, arguing that Section 627.736(7)(a), Florida Statutes, requires the Defendant to support its defense that the bills are not reasonable, necessary or related with the independent medical examination of a physician of the same licensing chapter as Dr. Frankl. The undersigned reserved ruling on the motion, and the jury found the sum of $2,000.00 to represent the reasonable, related and necessary value of the outstanding medical bills. Given a two thousand dollar deductible in the United policy, and the statutory percentage of 80%, see Section 627.736, Fla. Stat., the balance due Viles is zero, and thus a final judgment would be in favor of United.

LEGAL DISCUSSION

In its motion Viles seeks to reverse the jury verdict, arguing that: (1) Section 627.736(7)(a), Fla. Stat., requires the insurer to first obtain a report, following an independent medical examination, before it can cut-off or deny payment of benefits to its personal injury protection insured, and (2) the jury was not allowed to disregard the only expert’s testimony regarding what is reasonable, related and necessary. United disputes both points raised, and addressed below.

1. Section 627.736, Fla. Stat., requires the insurer to first obtain a physician’s report before it can refuse payment of medical bills.

Plaintiff’s first argument is premised on the application of Florida’s No-Fault Law. Under Florida’s No-Fault Law, insurance policies providing personal injury protection shall cover “[e]ighty percent of all reasonable expenses for necessary medical, surgical, X-ray, dental and rehabilitative services….” Section 627.736(1)(a), Fla. Stat. Moreover, “[p]ersonal injury protection insurance benefits paid pursuant to this section shall be 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.” Section 627.736(4)(b), Fla. Stat. Payments are not overdue when the insurer has reasonable proof to establish that the insurer is not responsible for payment. Id. Under Section 627.736(7)(a), Fla. Stat.,

Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians…. An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a physician licensed under the same chapters as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.

(emphasis added). The statute does not establish a penalty to the insurer for the failure to first obtain the necessary report before “withdrawing” benefits.

Here, Viles seeks entry of a final judgment in its favor, or a new trial, on the basis that United was required to first have Viles submit to an independent medical examination and obtain a chiropractor’s report, before it could refuse to pay the benefits sought. United counters that subsection (7)(a), quoted above, is inapplicable because United at no time “withdrew” or cut-off benefits; it simply refused to pay the medical bills in question. United also argues that Section 627.736(1)(a), Fla. Stat., does not require the carrier to pay fraudulent bills or bills which are not related or necessary, nor does the statute eviscerate United’s common law defenses.

The initial question, then, is whether Section 627.736(7)(a), Fla. Stat., applies in this case, and if so, (a) does it require insurers to first obtain reports from physicians licensed under the same category as the treating physician before the carrier may reject the payment of bills, and (b) what is the effect of the failure of compliance? The policy of the courts of this state when construing provisions of the Florida No-Fault laws is to construe the laws liberally in favor of the insured. See, Farmer v. Protective Casualty Insurance Co., 530 So. 2d 356 (Fla. 2d DCA 1988), citing, Palma v. State Farm Fire & Casualty Co., 489 So. 2d 147 (Fla. 4th DCA 1986). The quoted and highlighted portion of Section 627.736(7)(a), Fla. Stat., has previously been construed to require, where consent by the injured person has not been obtained, that the insurer first obtain the referenced report before benefits may be denied the insured. See, e.g., Williamson v. Fortune Insurance Co., 4 Fla. L. Weekly Supp. 510 (17th Judicial Circuit, Appellate Division, 1996).

There is no definition offered in the statute as to what “withdraw” means. Words used in legislation must be given their ordinary and commonly accepted meaning, as they are used in the particular statutory context. See, e.g., Hancock Advertising, Inc. v. Department of Transportation, 549 So. 2d 1086 (Fla. 3d DCA 1989), rev. denied, 558 So. 2d 17 (Fla. 1990). The American Heritage Dictionary, Second College Edition, defines “withdraw” to mean “1. To take back or away; remove. 2. To recall; retract.” In this case, United had paid a portion of the medical bills submitted by Dr. Frankl, and simply chose not to pay the disputed ones. Certainly, in changing its position of paying Dr. Frankl’s bills, United “took back” or “removed” a benefit that Viles had theretofore been enjoying. Regardless of whether United’s actions are labeled a refusal to pay or a withdrawal of payment, the results obtained are the same, in that medical bills remain unpaid.

United has not identified where the term “withdraw” as used in the statute is the equivalent of a prospective “cut-off” of benefits. Nonetheless, assuming United is correct in its interpretation, it would yield an absurd result to require insurers to first obtain the report before notifying their insureds that benefits will not be paid prospectively, and yet to allow insurers, without the benefit of the report, to receive and review bills, and elect, after the fact, to deny payment. In the former instance, the insured would proceed at his or her own risk in continuing to treat, while in the latter, the insured would have no inkling that the insurer would elect not to pay, when the bill is received and reviewed. If United’s position were accepted, and the statute thus narrowly construed, there would be little reason for insurers to first obtain the referenced report before refusing to pay medical bills; there would be little reason to formally notify an insured that future benefits would be cut-off. Rather, the incentive would exist to wait to receive bills, and if a decision was made not to pay, to wait for suit to be filed and the insurer to persuade the trier of fact as to the reasonableness and necessity of the services in question. It is well accepted that statutes are not to be construed to yield an unreasonable or a ridiculous result. See, e.g., Simms v. State, Department of Health & Rehabilitative Services, 641 So. 2d 957 (Fla. 3d DCA 1994), rev. denied, 649 So. 2d 870 (Fla. 1994). The limitations imposed by Section 627.736(7)(a), Fla. Stat., would thus seem to apply here, where payment of the bills in question was refused.

Having decided that United failed to comply with Section 627.736(7)(a), Fla. Stat., the next question presented is the effect that such non-compliance has on United’s ability to defend in the manner it chose to do. United argues that the statutory scheme permits it to raise common law defenses. Under the statutory scheme, the burden is on the insurer to authenticate the insured’s claim within thirty days of notice of a claim. Fortune Insurance Co. v. Ivan Pacheco, 22 Fla. L. Weekly D1076 (Fla. 3d DCA 1997); Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502 (Fla. 1st DCA 1974). If the claim is not timely paid, the insurer is exposed to the statutory penalties, which include interest and attorney’s fees. See Jones v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly D1394 (Fla. 5th DCA, June 6, 1997); Section 627.736(4)(c), Fla. Stat. If the claim is not timely paid, the insurer does not lose its right to contest the claim, however, and the insured is concomitantly not relieved of further obligation under the insurance policy. Id.

Admittedly, the statute does not do away with United’s common law defenses; rather, it imposes obligations on the insurer in reviewing and denying payment of claims submitted, and further establishes certain penalties for untimely payments. Nonetheless, it also imposes a clear and absolute requirement before payment may be withdrawn, in the nature of a condition precedent. A logical construction of the statute, which contains no penalties to the insurer for the failure to first obtain the referenced report, is to require that before the insurer may present its common law defenses, it have complied with the requirement concerning the report. In the present case, United chose to contest the claim by impeaching Plaintiff’s expert and impeaching the Plaintiff himself, and by presenting the report of a neurologist, without having first obtained the necessary report. The neurologist’s report fails to comply with the requirement contained in subsection (7)(a) of Section 627.736, Fla. Stat., and accordingly United should not have been permitted to defend as to liability or the amount of damage.¹

2. Although the jury is allowed to disregard incredible, illogical and unreasonable expert opinion, it could not do so here, where United failed to comply with the statutory requirement.

The only expert testimony adduced at the trial was that of Dr. Frankl. Admittedly, as Plaintiff urges, the trier of fact should accept unrebutted expert testimony on highly technical matters. See Long v. Moore, 626 So. 2d 1387, 1389 (Fla. 1st DCA 1993). In the absence of conflicting expert testimony on technical evidence on which only experts are qualified to speak, and where the evidence is not in dispute, the expert testimony may generally not be rejected. Florida East Coast Railway Company v. Beaver Street Fisheries, Inc., 537 So. 2d 1065, 1070 (Fla. 1st DCA 1989) (citation omitted).

However, where that testimony is “so palpably incredible, illogical and unreasonable as to be unworthy of belief or otherwise open to doubt from some reasonable point of view,” it may be rejected. Id.; Long, 626 So. 2d at 1389. Moreover, where the facts sought to be proved by expert testimony are disputed by lay testimony, “the conclusion to be drawn from the expert testimony will be left to the fact-finder”. Id. Indeed, Standard Jury Instructions 2.2(a) and 2.2(b), which were given to the jury, allow the jury to reject or give the testimony of an expert the weight it deserves. In a somewhat analogous situation, where a party opposes the claim of permanent physical injury, he or she may simply severely impeach the proponent’s expert or present other evidence which creates a direct conflict with the proponent’s evidence. See Jarrell v. Churm, 611 So. 2d 69 (Fla. 4th DCA 1992) (defendant failed to present expert testimony or to cross-examine plaintiff’s expert to demonstrate that activities engaged in by plaintiff were inconsistent with a diagnosis of permanent injury, thus directed verdict must be entered in favor of plaintiff on issue of permanency).

In the present case, Plaintiff’s expert witness was impeached and his expertise questioned through effective cross-examination. Expert testimony in the form of a neurologist’s written opinion was also presented the jury. Plaintiff’s own testimony on cross-examination also contradicted some of the testimony of Dr. Frankl. Thus, consistent with the foregoing exceptions to the general rule proscribing rejection of unrebutted expert opinion, the jury would have been permitted to reduce the value of medical bills it found to be not reasonable or related or necessary and to disregard expert testimony it found not credible, had United first complied with the statutory requirement concerning the physician’s report, as discussed above. Thus, this argument would have been unavailing had United met the requirements of Section 627.736(7)(a), Fla. Stat. However, because United did not do so, and given the import of Section 627.736(7)(a), Fla. Stat., United should never have had the opportunity to present the common law defenses which served to impeach Dr. Frankl’s testimony or to obtain a reduction of the amount sought by Plaintiff.

Based upon the foregoing analysis, Plaintiff’s Motion for Directed Verdict and/or Motion for Judgment Notwithstanding the Verdict and/or Motion for New Trial is GRANTED in part. By separate order, judgment shall be entered in favor of Metelet Viles, for the entire sum shown to be owing Dr. Frankl, less the statutory percentage, without regard to the defenses raised by United as to the reasonableness or necessity of the amount.

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¹The undersigned observes that had United presented the report of a chiropractor, without an IME having been performed, this would have sufficed under the plain language of the statute. The interpretation given the language at issue in Williamson, 4 Fla. L. Weekly Supp. 510, to require the insurer in each instance to obtain a report following an IME, goes beyond the plain wording of the statute and is expressly disagreed with here.

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