9 Fla. L. Weekly Supp. 392a
Insurance — Personal injury protection — Coverage — Medical expenses — Diagnostic range of motion testing is compensable medical service or treatment under Florida No-Fault statute — No merit to argument that insured must derive a medical benefit from ROM test in order for test to be compensable under PIP statute — ROM test that assisted medical provider in care and treatment of insured was meaningful service and contemplated to be compensable under statute — Section 627.736(5)(a) and (5)(d) do not require a handwritten signature on HCFA form; computer generated printed name is sufficient — Statute does not require signature of technician who performed service on HCFA form — By partially paying bill, insurer waived defense that this type of signature constituted improper notice — Insurer’s motion for summary judgment denied
ROM DIAGNOSTICS, on behalf of Roland Medley, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO 01-123. April 16, 2002. C. Jeffery Arnold, Judge. Counsel: Armando R. Payas, Jr., Michael Tierney, J.D., Payas, Payas & Payas, P.A., Orlando, for Plaintiff. Steven G. Rogers, Cameron, Hodges & Coleman, P.A., Ocala, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
This cause having been heard on February 27th, 2002, on Defendant’s Motion for Summary Judgment, the Court having heard argument counsel and being otherwise fully advised in the premises, the Court finds as follows:
FACTUAL AND PROCEDURAL BACKGROUND
On April 13th, 2000, Mr. Roland A. Medley was injured in an automobile collision Orlando, Florida. At the time of the accident, Mr. Medley was insured by Allstate Insurance Company and his policy included all coverage required by the Florida Motor Vehicle No-Fault Law, sections 627.730-.7405, Florida Statutes, (Florida No-Fault Law) including personal injury protection (PIP). Mr. Medley subsequently sought care and treatment from Dr. Vincent Preziosi for the injuries he sustained from the April 13th accident.
On November 13th, 2000, Mr. Medley’s primary treating physician, Dr. Vincent Preziosi, ordered a range of motion test for Mr. Medley as part of his standard medical protocol. That same day, ROM Diagnostics (hereinafter ROM) performed a cervical and lumbar range of motion test pursuant the prescription from Dr. Preziosi. On November 29th, 2000, ROM billed Mr. Medley’s PIP carrier, Allstate, $310.00 for their services. Allstate unilaterally reduced ROM’s bill to $200.00, and tendered only 80% ($160.00) on January 2nd, 2001 to ROM. ROM then filed suit against Allstate, wherein they alleged that Allstate wrongfully reduced payment, and therefore, was more than thirty days past due, which was a violation of section 627.736, Florida Statutes. Allstate filed their Answer on February 7th, 2001 and alleged six affirmative defenses.
Allstate eventually filed a Motion for Summary Judgment, along with a Memorandum of Law on February 5th, 2002. Therein, Allstate raised two primary issues. The first issue was that the Plaintiff was not entitled to PIP benefits pursuant to 627.736, Florida Statutes, claiming that the range of motion testing ROM performed on Mr. Medley was not contemplated to be compensable under Florida’s No-Fault statute. Allstate contended that the range of motion testing ROM performed on November 13th, 2000 for Mr. Medley was not a “medical service nor medical treatment” pursuant to the language in the PIP statute. Supporting their position, Allstate argued that under the holdings in both Federated National Insurance Company v. Physician Charter Services, 788 So.2d 403, at 404 (Fla. 3rd DCA 2001), and Medical Management Group of Orlando, Inc. v. State Farm Mutual Automobile Insurance Company, 8 Fla. L. Weekly Supp. 361a, the range of motion testing did not qualify for reimbursement under Florida’s No-Fault statute.
Secondly, Allstate alleged that the Plaintiff failed to comply with Florida Statute 627.736(5)(a) and (5)(d), claiming that ROM did not provide sufficient notice under these provisions. Allstate argued that when ROM placed the computer generated printed name of “Ray Sarmiento” in Box #31 (“Signature of Physician or Supplier”), this did not constitute a signature, and thus, ROM’s bill was insufficient notice which allowed Allstate to not pay ROM’s bill.
ROM countered by filing their Memorandum in Opposition to Allstate’s Motion for Summary Judgment stating that the range of motion testing was, in fact, compensable because it was related to Mr. Medley’s April 13th, 2000 auto accident, and that the computer generated printed name of “RAY SARMIENTO” placed in Box #31 sufficiently completed the signature requirement on the HFCA-1500. ROM’s response also stated that the Defendant raised issues in their Motion for Summary Judgment which were not plead with particularity in their Affirmative Defenses.
At the hearing for Summary Judgment, Allstate argued that the testimony from the deposition of ROM’s president, as well as ROM’s answers to Allstate’s Request for Admissions, supported their Motion for Summary Judgment. At his deposition, Allstate asked Mr. Sarmiento:
“Q: As far as the range of motion testing that you conducted or that your company conducts, would that constitute medical treatment to the person?”
“A: It’s just a service. I consider it a service.”
Furthermore, ROM also admitted in its response to Allstate’s requests for admissions that they did not render any “medical treatment, nor medical service.” Allstate further argued that the holding in Federated National Insurance Company v. Physicians Charter Services, controlled, “There is no provision in Florida’s personal injury protection statute for the payment of policy benefits to a third party who has not performed medical services.” Federated National Insurance Company v. Physicians Charter Services, 788 So.2d 403, at 404 (Fla. 3rd DCA 2001).
Allstate then raised a sub issue, wherein they contended that the range of motion testing performed by the Plaintiff did not provide any medical benefit to the insured. In other words, the service must provide some medical benefit to the patient/insured in order for Allstate to pay the bill. Allstate said the computerized range of motion testing only benefitted the “treating medical care provider,” not the patient. Therefore, Allstate was not obligated to pay ROM’s bill.
Furthermore, Allstate also alleged that since ROM did not provide Allstate with proper notice pursuant to 637.736(5)(d) and (4)(b), Florida Statutes, Allstate did not have to pay the November 13th, 2000 bill, nor any portion ROM claimed was late. Allstate claimed ROM’s bill was insufficient or incomplete notice under 627.736(5)(d).
Allstate’s position was that when ROM’s computer printed their president’s name, Ray Sarmiento, in Box #31 on their HFCA-1500 for date of service November 13th, 2000, this did not qualify as a signature of the “Physician or Supplier.” Allstate argued this method was not a signature because it was not personally scribed by the testator (Ray Sarmiento). Additionally, Allstate argued that it should have been signed by the person who actually performed the diagnostic test. Allstate then contended that a signature was “[t]he name of a person as written by himself.” The American Heritage Dictionary Second College Edition.
Allstate argued the supplier’s signature must be that of the actual technician (in this case Mr. Charles Machler) who performed the test on Mr. Medley. According to Allstate, even if Mr. Sarmiento had personally signed Box #31, this still would have been equally insufficient under 627.735(5)(d), Florida Statute. Allstate concluded that since ROM’s HCFA-1500 for the date of service at issue lacked not only a physical signature, but also the name of the technician who performed the test, Allstate was not furnished with proper notice of the medical bill pursuant to 627.736(5)(d), Florida Statute, and was therefore not required to pay ROM’s bill, nor any portion thereof claimed to be overdue. Allstate cited the holding in Rodriguez v. Ocean Harbor Casualty Insurance Company supporting their theory that a physical signature by the actual supplier of the service is required. Rodriguez v. Ocean Harbor Casualty Insurance Company, 8 Fla. L. Weekly Supp. 500b (11th Judicial Circuit in and for Miami-Dade County, April 20, 2001).
In response to Allstate’s Motion for Summary Judgment, ROM filed their Response and Memorandum in Opposition to Defendant’s Motion for Summary Judgment. ROM stated that the range of motion testing was in fact compensable under 627.736, Florida Statute, because it was medically necessary, and they complied when they placed the computer generated printed name of “Ray Sarmiento” in Box #31 on the HCFA-1500. Thus, there were genuine issues of material facts in dispute, and Allstate’s Motion for Summary Judgment should be denied.
The Plaintiff filed two affidavits from licensed physicians in Florida, stating that the range of motion testing which ROM performed was medically necessary, as well as related to the insured’s accident. Thus, the bill at issue qualified for reimbursement under 627.736, Florida Statute. Additionally, ROM argued that Allstate can not establish what constitutes “medical treatment” through the use of testimony from a lay witness, i.e. Mr. Sarmiento. Lastly, ROM noted that the Defendant failed to present any expert testimony to the Court, whether through deposition or affidavit, that ROM’s services were not a medical service, nor medical treatment.
Additionally, the affidavits which ROM submitted also stated that a computer generated printed name in Box # 31 of the HCFA-1500 was not only customary in the health care industry, but also Allstate had accepted this method of completing Box #31 for years, and never raised this defense in the past with either of the affiants, nor ROM. ROM concluded that these affidavits sufficiently created genuine issues of material facts in dispute. Thus, Allstate’s Motion for Summary Judgment should be denied.LAW AND ANALYSIS
Summary Judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Rule 1.150(c) F.R.C.P. The party moving for summary judgment has the burden of showing the absence of a genuine issue of fact. All inferences must be drawn from the proof in favor of the party opposing the motion. Liberty Mutual Insurance Company v. Stucky, 220 So.2d 421 (Fla. 4th DCA 1969). Unless the material facts are so crystalized that nothing remains except question of law, summary judgment should not be granted. Moore v. Morris, 475 So.2d 666 (Fla. 1985). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined. Id.
Issue One:
Plaintiff Is Entitled to Reimbursement Pursuant to 627.736, Florida Statute
It is the policy of Florida Courts to construe the No-Fault act liberally in favor of the insured.” Palma v. State Farm Fire & Casualty Co., 489 So.2d 147 (Fla. 4th DCA 1986). The Florida Supreme Court has further indicated that a broader and more liberal standard of coverage is applied in PIP cases. Race v. Nationwide Mutual Fire Insurance Company, 542 So.2d 347 (Fla. 1989). Consequently, this Court finds that the range of motion testing is compensable under Florida Statutes 627.736(1)(a) (medical service), 627.736(5)(a) (treatment and services), 627.737(5)(d) (treatment and services), and 627.736(5)(d) (medical services). The Defendant initially relied on the deposition testimony of ROM’s President, Mr. Ray Sarmiento, to reach their conclusion that the range of motion test was not compensable under 627.736, Florida Statute. Allstate asked Mr. Sarmiento:
“Q: As far as the range of motion testing that you conducted or that your company conducts, would that constitute medical treatment to the person?”
The question posed to Mr. Sarmiento called for him to render a medical conclusion as to whether his company’s service could be construed as medical treatment. Mr. Sarmiento’s testimony was that of a fact/lay witness. By his own admissions, Mr. Sarmiento was not a doctor not anything akin. Even under the most liberal construction of Florida Rule of Civil Procedure 1.390(a), he could not be, nor was he at the time of his deposition, qualified to render an opinion as to whether his company’s service constituted medical treatment. F.R.C.P. 1.390(a). Therefore, Mr. Sarmiento was not qualified to render an opinion as to the necessity nor relatedness of his company’s services as they relate to the patient’s medical treatment. Thus, the Defendant improperly relied on lay testimony to reach their conclusion that a diagnostic range of motion test was not medical treatment.
The defense then cited only two cases to support that this diagnostic range of motion test did not qualify for reimbursement under the PIP statute: Federated National Insurance Company v. Physicians Charter Services, 788 So.2d 403, at 404 (Fla. 3rd DCA 2001) and, Medical Management Group of Orlando, Inc. v. State Farm Mutual Automobile Insurance Company, 8 Fla. L. Weekly Supp. 361a. This Court finds these cases to be distinguishable, both factually and legally. In these cases, the Plaintiffs were merely “middle-men” who were brokering MRI services, which consisted of setting an appointment and billing the PIP carrier. Neither Plaintiff gave any type of care, treatment, nor actual medical service directly to the insured. Additionally, the testimony that they did not perform any kind of service, other than scheduling an appointment for an MRI was undisputed. In the case at bar, it is undisputed that ROM directly performed the range of motion service pursuant to a prescription from Dr. Preziosi. Thus, the Defendant’s cases are wholly unpersuasive.
In reaching its conclusion as to qualification under the PIP statute, the Court recognizes the policy of the Courts of Florida that when construing provisions of the Florida No-Fault Act, it has always been to construe the PIP statute liberally in favor of the insured. Farmer v. Protective Cas. Ins. Co., 530 So.2d 356 (Fla. 2d DCA 1988), citing Palma v. State Farm Fire & Cas. Co., 489 So.2d 147 (Fla. 4th DCA 1986). The No-Fault Act was intended to broaden insurance coverage while at the same time reasonably limit the amount of damages which could be claimed. Palma, 489 So.2d 147. The broad scope of the medical services covered by the No-Fault Act is highlighted by the inclusion of benefits for remedial treatment and services for an injured person who relies upon spiritual means through prayer alone for healing in accordance with his religious beliefs. Id. Thus, if expenses for treatment via faith and prayer are covered under the PIP statute, surely the legislative intent also included other intangible services, such as a range of motion diagnostic test.
The Plaintiff’s two medical expert affidavits submitted to this Court from Dr. Vincent Preziosi and Dr. William Hoffmeister, stated they not only prescribed the range of motion test at issue, but also, use it as a basis in forming their diagnosis. More specifically, Dr. Preziosi stated that he used the information from this particular test to direct therapies, as well as to form his care and treatment plan for Mr. Medley. These factors alone clearly demonstrate the necessity and relatedness of the range of motion testing. In light of the foregoing maxim of statutory construction, as well as voluminous applicable case law, should the Court hold otherwise, it would be ignoring the legislative intent of the PIP statute, as well as established case law.
Allstate also argued that Mr. Medley did not benefit from the range of motion; thus rendering the test non-compensable under the PIP Statute. However, case law is clear that under the “Rule-Out” doctrine, a patient does not have to receive any benefit from the health care provider in order for the necessary medical expense to be compensable under F.S. 627.736. See Wendy Williamson vs. Fortune Insurance Company, 4 Fla. L. Weekly Supp. 510a (17th Judicial Circuit in and for Broward County, Appellate Division, December 12, 1996.), Banyas v. American Mutual Ins. Co., 350 So,2d 506 (Fla, 1st DCA 1978), Ridenour v. Sharek, 388 So.2d 222 (Fla. 5th DCA 1980), and Farmer v. Protective Cas. Ins. Co., 530 So.2d 356 (Fla. 2d DCA 1988). It is also customary within the health care field for independent third party vendors to perform services for a patient at the request of the treating physician. When a range of motion is properly prescribed by a licensed physician and is part of his diagnosis and treatment plan, this nexus satisfies the No-Fault threshold for compensability under 627.736, Florida Statute. Furthermore, a range of motion study is equivalent to other forms of diagnostics testing such as lab work, or an x-ray, which a physician relies upon and is, therefore, compensable. Thus, this rationale nullifies the defense’s argument that the patient must derive a medical benefit from the test in order to be compensable under the PIP statute is wholly without merit.
This Court also agrees with the testimony from Mr. Medley’s treating physician, Dr. Preziosi, as well as the supporting expert testimony from Dr. Hoffmeister, that the range of motion testing did benefit Mr. Medley. Dr. Preziosi stated he relied on the range of motion testing as an integral part of his care and treatment of Mr. Medley, and it also directed him as to the specific area of injury which required treatment. Thus, it was related and compensable under 627.736, Florida Statute. Furthermore, established case law contradicts Allstate’s position that the service must be a medical service to qualify for payment under 627.736, Florida Statute. Medical Management Group of Orlando, Inc. v. State Farm Mutual Automobile Insurance Company, 8 Fla. L. Weekly Supp. 361a (a “meaningful” service is compensable underthe PIP statute). Since this service assisted Dr. Preziosi in his care and treatment, the range of motion testing was at the very least “meaningful service,” and contemplated to be compensable under 627.736(1)(a), Florida Statute. Id. Furthermore, to hold otherwise is contrary to established case law. Farmer v. Protective Cas. Ins. Co., 530 So.2d 356 (Fla. 2d DCA 1988), citing Palma v. State Farm Fire & Cas. Co., 489 So.2d 147 (Fla. 4th DCA 1986).
Issue Two: The Plaintiff Complied with 627.726(5)(a) and 627.736(5)(d), Florida Statutes
This Court also finds the Defendant’s second issue requiring a hand written signature, as well as it being scribed by the technician who performed the service, to be equally unpersuasive. Allstate relied on 627.736(5)(d), Florida Statute, which provides that medical bills must be submitted on a standard form such as a HCFA or UB-90 form. Allstate argued to this Court that 627.736(5)(d), Florida Statute, required a handwritten signature. However, there is no provision in Section F.S. 627.736(5)(d), which states that the HCFA-1500 form must be personally countersigned by the health care provider. Such an omission is significant and persuasive. This Court must construe PIP statute liberally and in favor of coverage. See Palma v. State Farm Fire & Cas. Co., 489 So.2d 147 (Fla. 4th DCA 1986), and Race v. Nationwide Mutual Fire Insurance Company, 542 So.2d 347 (Fla. 1989). Thus, if there is any doubt as to whether the statute requires the HCFA form to be countersigned, the Court must construe the statute in a liberal way that would facilitate the payment of benefits, in which case no countersignature would be required.
THE PREMIER CENTER FOR PERSONAL INJURIES, as assignee of Zureya A. Ruiz, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, 8 Fla. L. Weekly Supp. 501a.
Allstate also relied on the definition found in The American Heritage Dictionary Second College Edition when arguing that the HCFA-1500 was not properly signed. This Court finds the definition of a “signature” from Black’s Law Dictionary, as well as the holding in the Kohl case to be more appropriate sources. Black’s Law Dictionary defined “signature” as “[t]he act of putting one’s name at the end of an instrument to attest to its validity; the name thus written.” MARK E. KOHL, Petitioner, vs. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, 8 Fla. L. Weekly Supp. 747c. Black’s Law Dictionary defines “name” as: “A word or phrase identifying or designating a person or thing and distinguishing that person or thing from others.”
Most notably, omitted from this source of legal definitions is the requirement that the act of putting one’s name be must personally handwritten by the testator. Here, Mr. Sarmiento did indeed “put his name”, and as a matter of fact, precisely at the end of the instrument at issue.
The Uniform Commercial Code, Article 2, defines signature as “any mark made with the intent to authenticate.” Here, when Mr. Sarmiento’s name was placed in Box #31, albeit printed, it was placed there with the intent to authenticate that ROM Diagnostics performed the range of motion testing on November 13th, 2000, on Mr. Roland A. Medley. Thus, ROM Diagnostics more than satisfied the requirements for sufficiently completing Box #31 on the bill in question. An additional source assisting the Court was the Florida Administrative Code, Chapter 4-166.02, which deals with definitions which the insurance commissioner relies upon. Therefore, this Court holds that the typing of the name by ROM substantially complied with 627.736(5)(a) and (d), Florida Statute, and warrants compensability.
As for Allstate’s authority, Rodriguez v. Ocean Harbor Casualty Insurance Company, the Court finds it completely distinguishable. Rodriguez v. Ocean Harbor Casualty Insurance Company, 8 Fla. L. Weekly Supp. 500b. In Rodriguez the health care provider wrote “SIGNATURE ON FILE” in both box numbers 13 and 31 of their HCFA-1500. Id. Thus, neither the patient, nor the health care provider, placed any words nor phrases which could specifically identify individuals. Id. The trial court held that merely typing the phrase “signature on file” was not in compliance with the statute. Id.
In the case at bar, ROM did in fact provide a signature (“A word or phrase identifying or designating a person…”) in Box #31 which allowed Allstate to clearly identify a person. ROM did not type “signature on file;” rather, ROM legible typed the name “RAY SARMIENTO,” which identified and distinguished Mr. Sarmiento from others. Considering the duration and volume of business Mr. Sarmiento’s company has done with Allstate, it is inconceivable for Allstate to suddenly claim they are unable to identify who Ray Sarmiento is when his name is clearly typed on the bill at issue, as well as countless others, Allstate received and paid in the past.
This Court finds Allstate’s argument is contrary to the fundamental objective of the No-Fault Statute: the guarantee of “swift and virtually automatic” payment of benefits. Crooks v. State Farm Mut. Auto. Ins. Co., 659 So.2d 1266 (Fla. 3d DCA), rev. denied, 662 So.2d 933 (Fla. 1995). This Court is not required to, and will not interpret the PIP statute in such a manner that leads to an unreasonable or ridiculous result or a result obviously not intended by the legislature. United Automobile Insurance Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA) rev. denied, 735 So.2d 1288 (Fla. 1999).
Lastly, it is most notable to recall that this law suit was premised on the fact that Allstate reduced ROM’s bill under the auspices of reasonable and customary charges. Allstate did not dispute the fact that they paid part of ROM’s bill for date of service November 13th, 2000. Thus, they accepted and relied on ROM’s HCFA-1500 which contained the typed name in Box #31. Now, Allstate wishes to essentially reverse its acceptance of Mr. Sarmiento’s signature. Furthermore, Allstate has an affirmative obligation to investigate a claim when they are aware of an error, i.e. incomplete or insufficient completion of Box #31. Allstate Insurance Company v. Ivey, 728 So. 2d 282 (Fla. 3rd DCA 1999). Allstate paid ROM’s bills since 1999 where ROM submitted bills completing Box #31 with a typed signature. Allstate had more than ample notice to raise this issue. The fact that Allstate did not, constitutes an intentional and voluntary waiver on their part as to this defense. If Allstate had a problem with this method of signature they had the burden of investigating a claim within the thirty day period after receiving a bill from ROM Diagnostics with this method of signature. Furthermore, Allstate’s obligation after their investigation was to notify ROM that they believed their method did not qualify as a signature. However, Allstate relied on this form of signature, and repeatedly accepted ROM’s bills without objection, and paid the bills as far back as 1999. Therefore, Allstate knowingly and voluntarily waived its defense, and is now estopped from raising the defense of improper notice under 627.736(5)(a) and (d), F.S., for date of service November 13th, 2000.
Further proving that Allstate waived this defense is the fact that Allstate accepted this same method of completing Box #31 on the HFCA-1500 for Dr. Vincent Preziosi’s treatment to Mr. Medley. Submitted to the Court was Dr. Preziosi’s affidavit showing that his standard practice was to place a computer generated signature in Box #31 of the HFCA-1500 which he submitted to Allstate. Allstate accepted this method from Dr. Preziosi and paid his bills submitted on behalf of Roland Medley.
After careful consideration, this Court finds that the Defendant has failed to satisfy the burden of showing the lack of genuine issues as material facts and they are not entitled to judgment as a matter of law. This Court, therefore, denies the Defendant’s Motion for Summary Judgment.
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