7 Fla. L. Weekly Supp. 389a
Insurance — Personal injury protection — No error in awarding insured’s medical provider the balance of a bill after finding that insurer did not obtain physician’s report, as required by statute, prior to reducing payment to medical provider — When basis for nonpayment to medical provider is that treatment was not reasonable, related or necessary, physician’s report is required prior to insurer reducing, withdrawing, or denying benefits — There is no practical difference between reducing rather than withdrawing or denying benefits
PROGRESSIVE SPECIALTY INSURANCE COMPANY, Appellant, vs. BIOMEDICAL TRAUMA ASSOCIATION, INC., Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County, Civil Division. Case No. 99-6125. County Case No. 95-12089, Division “H”. March 13, 2000. James S. Moody, Jr., Judge. Counsel: Hinda Klein, Conroy, Simberg & Ganon, P.A., Hollywood. Wendy Coxhead, Law Office of Wendy Coxhead, Tampa.
ORDER AFFIRMING LOWER COURT AND REMANDING FOR ASSESSMENT OF COSTS AND REASONABLE ATTORNEY’S FEES
THIS MATTER is before the Court on PROGRESSIVE’S appeal of a county court order awarding BIOMEDICAL the balance of a bill after a finding that PROGRESSIVE did not obtain a physician’s report, as required by Florida Statute §627.736(7)(a), prior to reducing payment to BIOMEDICAL, a medical provider of PROGRESSIVE’S insured. For the reasons expressed below, the Order is AFFIRMED.
The lower court relied upon the language of §627.736(7)(a) and the case of United Automobile Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1999), which interpreted §627.736(7)(a) to mean that an insurance company must obtain a physician’s report prior to denying payment to a medical provider when the basis for nonpayment is that the treatment was not reasonable, related or necessary to the accident for which coverage is applicable. Since a physician’s report was not obtained, a condition precedent was not met, and the insurer was required to pay the entire bill.
F.S. 627.736(7)(a) (1999) provides:
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by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.
PROGRESSIVE does not dispute that a physician’s report was not obtained prior to refusing full payment to BIOMEDICAL. However, PROGRESSIVE contends that a physician’s report is not required in this case because it contested the reasonableness of the amount charged, not the reasonableness or necessity of the treatment itself. Appellant asserts that 627.736(7)(a) and Viles do not cover the issue of partial payment of a bill as distinguished from withdrawing or denying payment completely. In Viles the insurance company paid out $1,100.00 and then refused to pay any additional bills based on a belief that the medical provider’s bills were fraudulent.
Appellee argues that §627.736(7)(a) and Viles do apply to reductions, and that the certified question in Viles, which was answered in the affirmative, specifically included whether a physician’s report is required prior to reducing, withdrawing or denying benefits.
Appellant points out that despite the fact that reduction is mentioned in the certified question, the case did not deal with reducing benefits, but withdrawing or denying benefits, and therefore Viles is not controlling authority. Appellant contends that the court in Viles and the Legislature could not have intended a physician’s report to be required prior to reducing benefits because it is not economically feasible when a small amount, as in this case of $139.00, is at issue because it would cost them more to obtain a physician’s expert opinion on a particular charge than the charge itself.
This Court agrees with the lower court and sees no practical difference between reducing rather than withdrawing or denying benefits. Whether the insurance company calls it a reduction, a withdrawal, or denial of benefits, the effect is still the same — nonpayment to the medical provider based upon a determination that billed services were not reasonable, related or necessary. If Appellant’s argument were accepted, an insurance company could pay a small portion of a contested bill (paying $10 on an $800 bill, for example) and avoid the statute.
Therefore, upon due consideration, it is
ORDERED AND ADJUDGED that the decision of the county court is AFFIRMED. It is further ORDERED that appellee’s Motion to Tax Attorney’s Fees and Costs is GRANTED, and this matter is remanded for an evidentiary hearing to determine costs and reasonable appellate attorney’s fees.
* * *
