11 Fla. L. Weekly Supp. 1024a

Insurance — Personal injury protection — Coverage — Medical benefits — MRI — Fact that amount billed on provider’s HCFA claim form exceeds fee schedule amount set forth in statute does not relieve insurer of liability for payment on ground that bill does not constitute proper notice of a claim — MRI bill, if otherwise payable, is payable at the fee schedule amount as defined in section 627.736(5)(b)(5) — Unrefuted testimony by treating chiropractor that MRI was necessary to determine nature and extent of injuries, if any, insured sustained in automobile accident was sufficient to establish that bill was reasonable, related and medically necessary, and report provided by defendant in which radiologist opined that film identified no evidence of acute trauma from accident at issue did not address issue of whether MRI was reasonable, related, or medically necessary — Provider entitled to recover medical expenses and prejudgment interest on overdue benefits

A-1 MOBILE MRI, (Hilda Ferreira), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-13775 COCE (56). July 19, 2004. Linda Pratt, Judge. Counsel: Andrew D. Wyman, for Plaintiff. Office of the General Counsel, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION AND FINAL JUDGMENT

THIS CAUSE having come on to be heard before me on Plaintiff’s Motion for Summary Disposition under Fla. Sm. Cl. R. 7.135, and the Court having heard the argument of counsel and being otherwise fully advised in the premises, it is:

ORDERED AND ADJUDGED that said Motion for Summary Disposition is hereby GRANTED. In granting this motion, the Court finds as follows:

Plaintiff filed suit against the Defendant alleging that PIP benefits, based upon a medical service that Plaintiff rendered to the insured/claimant, Hilda Ferreira (“insured”), were improperly withheld by the Defendant. The insured sought diagnostic testing services from the Plaintiff as a result of injuries sustained in an automobile accident occurring on May 14, 2002. Specifically, the Plaintiff provided a lumbar MRI to the insured based upon a prescription from Dr. Fernando Oballe, D.C., a State licensed chiropractic physician/health care provider. Ms. Ferreira’s bodily injuries were covered by an automobile insurance policy with Defendant, which provided her Personal Injury Protection (“PIP”) benefits. Prior to receiving said MRI, Ms. Ferreira executed an Assignment of Rights and Benefits with respect to PIP benefits due from the Defendant.

Plaintiff timely sent Defendant a properly completed HCFA 1500 form as required by F.S. 627.736, along with supporting documentation. Under the PIP statute, the lumbar MRI was payable according to a preset MRI fee schedule; although the HCFA form submitted by A-1 Mobile MRI is for an amount in excess of the statutory fee schedule. Plaintiff submitted a bill to United Automobile Insurance Company for $1,500.00.¹ United Automobile has refused to pay this bill.

The pleadings on file and record evidence submitted herewith demonstrate conclusively that no genuine issue of material fact exists as to any issue in this lawsuit. Plaintiff has tendered competent evidence as to all aspects of its prima facie case which would require a directed verdict at trial; thus shifting the burden to Defendant to come forward with counter evidence sufficient to reveal a genuine issue of material fact.

Defendant argues that if an MRI bill itself does not list an amount at or lower than the amount listed on the statutory fee schedule, then the entire bill is invalid, and the insurance company is thereby relieved of liability on the grounds that the bill does not constitute proper notice of a claim. This Court rules, as a matter of law, that it is not an absolute defense to payment of this bill that the amount billed on Plaintiff’s HCFA form exceeded the fee schedule amount set forth in Florida Statute 627.736(5)(b)(5). As a matter of law, the MRI bill, if otherwise payable, is payable at the fee schedule amount as defined under 627.736(5)(b)(5).

In support of Plaintiff’s bill being reasonable, related and medically necessary, Plaintiff filed the Affidavit of Dr. Fernando Oballe, D.C., Ms. Ferreira’s treating physician who ordered the lumbar MRI. Dr. Oballe affirms, within a reasonable degree of chiropractic probability, that the lumbar MRI was necessary to determine the nature and extent of the injuries, if any, Hilda Ferreira received from her automobile accident of May 14, 2002.

This testimony went unrefuted by Defendant. Defendant provided this Court only with a report dated December 8, 2002, from Dr. Paul Koenigsberg, M.D. Dr. Koenigsberg is a radiologist who performed a read of the lumbar MRI film at the request of the Defendant. Dr. Koenigsberg opined that, based on his review of the film, “[n]o evidence for acute trauma from the accident dated May 14, 2002 was identified”. This Court finds that this report does not begin to address the issue of whether the MRI performed on Ms. Ferreira was reasonable, related to the May 14, 2002 accident or medically necessary. Rather, this report only addresses whether the result of the MRI, as indicated on the film, was traumatically induced. This Court is aware that it is not appropriate to weigh evidence at a summary disposition hearing. This Court has not done so. The true issue is whether the MRI performed by Plaintiff on Ms. Ferreira was related to the accident of May 14, 2002, and whether that MRI was medically necessary. Defendant’s evidence fails to address these issues, and is therefore not evidence that is capable of being weighed on these issues.

Summary disposition is appropriate where the pleadings and affidavits on file conclusively show that there remains no genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Fla. Sm. Cl. R. 7.135, states that “at pretrial conference, or at any subsequent hearing, if there is no triable issue, the court, shall summarily enter an appropriate order or judgment”. The burden is on the moving party to establish the non-existence of any genuine issue of material fact and entitlement to judgment as a matter of law. Romero v. All Claims Insurance Repairs, Inc., 698 So. 2d 605 (Fla. 3d DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits and pleadings on file. See Mack v. Commercial Industrial Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989). Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue. It is not enough for the party opposing summary disposition merely to assert that an issue exists. Buitrago v. Rohr, 672 So. 2d 646, 648 (Fla. 4th DCA 1996). Accordingly, this Court finds that Defendant has tendered no evidence to refute any aspects of Plaintiff’s prima facie case. Therefore,

IT IS ADJUDGED that Plaintiff, A-1 Mobile MRI, Inc., as assignee of Hilda Ferreira, recover $781.03, for medical expenses under the applicable no-fault payments coverages, and $89.76, as prejudgment interest on overdue benefits, for a total of $870.79, from Defendant United Automobile Insurance Company, that shall bear interest at the rate of 7% per year, for which let execution issue. The Court hereby reserves jurisdiction for the purpose of awarding attorney’s fees and costs to Plaintiff, upon motion made under Rule 1.525 Fl. R. Civ. Proc.

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¹The bill also contained a charge of $45.00 for transportation (CPT code 99082), for which plaintiff is not seeking recovery.

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