11 Fla. L. Weekly Supp. 1013b
Insurance — Personal injury protection — Coverage — Denial — Improper coding — Insurer has failed to prove that treatment provided by provider/assignee was improperly coded where testimony of insurer’s expert witness on coding was severely undercut by fact that insurer did not dispute coding in explanation of benefits and only raised challenged coding over a year later when insurer sought leave to amend its affirmative defenses
CRAIG A. NEWMAN, D.C., P.A. (As assignee of Michael Riley), Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 03-15206-CC, Division H. CRAIG A. NEWMAN, D.C., P.A., (As assignee of Reem Riley), Plaintiff, vs. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. Case No. 03-15207-SC, Division H. August 26, 2004. Michelle Sisco, Judge. Counsel: Timothy A. Patrick, Timothy A. Patrick, P.A., Tampa, for Plaintiff. Randall A. Wainoris, Tampa, for Defendant.
FINAL JUDGMENT AS TO ASSIGNEE REEM RILEY
THIS CAUSE came before this Court on July 26, July 27 and August 6, 2004 for Non-Jury Trial, and the Court having reviewed the Court file; received evidence; heard argument; and being otherwise advised in the premises, finds as follows:
The Court first finds that the Plaintiff has met its burden of proof in establishing that the services provided by the Plaintiff were reasonable, necessary and related medical, rehabilitative, and remedial treatment as defined by Fla. Stat. §627.736(5). With regards to the Defendant’s Fourth Affirmative Defense, specifically regarding whether the treatment provided by the Plaintiff was properly coded as CPT code 99024, the Court finds that the Defendant has not carried its burden of proof in establishing this affirmative defense by a preponderance of the evidence. While the Court found the testimony of the Defendant’s expert witness on coding, Denisha Litch, to be compelling, the Court also finds that the Defendant’s position on this issue was severely undercut by its own actions. Specifically, the original Explanation of Benefits (“EOB”) submitted by the Defendant dated May 12, 2003 contains no reference to any dispute by the Defendant as to whether the Plaintiff properly coded his treatment of assignee Reem Riley for CPT Code 99204. The EOB simply states that the amount charged for CPT code 99204 is being reduced because: “The amount allowed is based on provider charges within the provider’s geographic region.” The Plaintiff’s utilization of CPT code 99204 went unchallenged by the Defendant for over one year, until counsel for the Defendant filed leave to amend its affirmative defenses on May 24, 2004, (the same day coincidentally this Court entered its Uniform Order originally scheduling this case for trial in July, 2004) seeking to add the alleged improper use of CPT code 99204 as its Fourth Affirmative Defense.
The Court would also note that on the EOB, the Defendant initially challenged the Plaintiff’s use of CPT code 72110 in disallowing payment for a radiologic examination of Reem Riley. The Court can only assume that because no similar coding challenge was made as to treatment billed for CPT code 99204, the Defendant considered this treatment to have been properly coded and continued to have the same opinion for over one year. This conduct by the Defendant leads the Court to conclude as the trier of fact, therefore, that the Defendant did not establish by a preponderance of the evidence that the treatment at issue was improperly coded. The Court wants to make explicitly clear, however, that its ruling regarding the use of CPT code 99204 is strictly limited to the facts of this case. This decision by the Court is simply based upon the Defendant’s failure to carry its burden of proof, and is not intended to serve as any precedent, whatsoever, conclusively establishing that the examination conducted by the Plaintiff does in fact comply with the coding requirements for CPT code 99204. If the Defendant had challenged the use of CPT code 99204 earlier, the outcome of this case could very well have been different, but that issue remains for another day. The Court also finds that the Defendant has not carried its burden of proof with regards to its other affirmative defenses.
IT IS ORDERED AND ADJUDGED, therefore, that the Plaintiff is entitled to damages in the amount of $24.00. The Court also finds that pursuant to Fla. Stat. §627.428, the Plaintiff is entitled to attorney’s fees and costs, and the Court will reserve on the amount of attorney’s fees, costs and pre-judgment interest. [See 12 Fla. L. Weekly Supp. 573a] The Court will enter a contemporaneous Order referring the parties to mediation on the issue of costs and attorney’s fees. The Court will caution both sides that the Court has changed the language in its Order referring parties to mediation for attorney’s fees from the one utilized by the previous judge in this division, and that the Court expects strict adherence to the terms of said Order.
* * *
