9 Fla. L. Weekly Supp. 866a
Insurance — Personal injury protection — Chiropractic care after the date of the independent medical examination is found to be necessary where treating physician testified that care might not cure insured’s cervical injury but condition would worsen without care, and that all care was in accordance with accepted standards of practice and clinically appropriate, and IME physician agreed with treating physician’s diagnoses and treatment rendered up to date of examination, concluded that further treatment did not appear necessary on date of examination but may be appropriate if insured experienced “flare-ups,” and had no opinion as to whether insured had actually experienced “flare-ups”
SIESTA SPINE & SPORT NATURAL HEALING CENTER, as assignee of Karl Von Hess, Plaintiff, vs. TIG INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2002 SC 003465 NC. October 11, 2002. Preston DeVilbiss, Jr., Judge. Counsel: Jeffrey A. Luhrsen, Bradenton. Scott H. Jackman, Cole, Scott & Kissane, P.A., Tampa.
FINAL ORDER
This Personal Injury Protection case was heard in a Bench Trial on September 30, 2002. Plaintiff, who claimed to have standing by virtue of an Assignment of Benefits from the insured (Karl Von Hess), sought to recover $2,928.00 in PIP insurance benefits for chiropractic care rendered to Karl Von Hess. Plaintiff claimed the chiropractic care was a necessary endeavor to deal with a chronic injury Mr. Von Hess sustained in an automobile accident on May 9, 2001.
Defendant exercised its right under §627.736(7), F.S. to have Mr. Von Hess examined by a physician licensed under the same chapter as the treating physician.1 By way of a deposition, Defendant’s expert testified that he agreed with the Plaintiff, Mr. Von Hess’s treating physician, about the diagnosis, the cause of the injury, and the treatment rendered up until the date of the compulsory medical examination. The compulsory medical examiner had no opinion about the amount charged for the disputed care.
Consequently, the sole issue for trial and disposition by the Court was whether the care rendered to the assignor, Mr. Von Hess, by the Plaintiff after the date of the compulsory medical examination was necessary.
I. FINDINGS OF FACT
The greater weight of the evidence and testimony showed, and this Court finds, the following facts:
1) Plaintiff suffered a cervical injury as a result of a May 9, 2001 motor vehicle accident;
2) Chiropractic care after the date of the compulsory medical examination was necessary for this particular Plaintiff under the specific circumstances of this case;
3) The charges at issue $3665.00 were reasonable under the specific circumstances of this case.
II. EVIDENCE
The treating physician/Plaintiff, Dr. Craig Siegel, testified that Mr. Von Hess sustained a neck injury in the motor vehicle accident of May 9, 2001 and that chiropractic care relieved some of his discomfort. Dr. Siegel further testified that his chiropractic care may not cure the patient, but the patient’s condition would worsen without the treatment. Finally Dr. Siegel confirmed that all of the care he rendered was in accordance with generally accepted standards of practice, was clinically appropriate in terms of type, frequency, extent, site, and duration, and was not primarily for the convenience of the patient, physician, or other health care provider.
The defense expert witness, Dr. Linkoff, agreed with Dr. Siegel’s diagnoses, opinion as to causation, and with the treatment rendered up to the date of the compulsory examination. He testified that he found muscle spasm in the patient’s neck during his own examination, and that this was objective finding. Dr. Linkoff concluded that further treatment did not appear to be necessary based upon the clinical picture he observed on that date, but he did testify that further treatment may have been appropriate if the patient experienced “flare-ups.” He had no opinion as to whether the patient actually experienced of these “flare-ups” because he never saw any additional records or examined the patient.
All the witnesses agreed that Mr. Hess’s injuries arose out the automobile accident. Plaintiff’s testimony that the charges were reasonable was uncontroverted.
As fact-finder, the Court finds that the greater weight of the evidence indicates that all care rendered by Dr. Siegel was necessary. See §§627.732(2) and 627.736(1)(a), F.S. (2001); see also Derius v. Allstate, 723 So. 2d 271 (Fla. 4th DCA 1998) (necessity in a PIP case is decided by factfinder).
III. CONCLUSION
Plaintiff in the case at bar has proved that the subject injuries arose out the motor vehicle accident, that the services were necessary, and that the charges therefore were reasonable. Plaintiff shall recover $2928.00, plus interest, costs, and fees.
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1The court notes that these sorts of examinations are sometimes referred to as “independent” medical examinations, but §627.736(7), F.S. does not attach this characterization. Recognizing that the legislature vested the insurance carrier with the power to unilaterally select the examiner and command the insured to appear, this Court will use the term “compulsory” medical examination to describe the procedure authorized by §627.736(7), Florida Statutes.
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