11 Fla. L. Weekly Supp. 646a

Insurance — Personal injury protection — Medical bills — Reduction — Provider/assignee’s claim for needle electromyography procedures and nerve conduction velocity testing — Statutory limitation of charges to 200% of allowable amount under Medicare Part B reimbursement schedule applies only to NCV testing, not EMG procedure done in conjunction with NCV

MANLEY W. KILGORE, II, M.D., P.A., as Assignee for TERESA A. FISCHER, Plaintiff, vs. AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY, a Foreign Insurance Company, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2003-SC-000975, Division B. April 30, 2004. Roberto A. Arias, Judge. Counsel: Joseph V. Camerlengo and R. Brian Boyd, Camerlengo & Brockwell, P.L., Jacksonville, for Plaintiff. Michael A. Mills, Conroy Simberg, Ganon, Krevans, & Abel, P.A., for Defendant.

FINAL SUMMARY JUDGMENT

THIS CAUSE came on to be heard on March 29, 2004, before the Honorable Roberto A. Arias, upon Plaintiff’s and Defendant’s Cross Motions for Summary Judgment, and the Court, having heard arguments from counsel for the parties and being otherwise further advised of the premises, it is ORDERED as follows:

The Court makes the following findings of fact and conclusions of law:

A. The following issue was presented to this Court:

Whether the 200% limitation contained in Florida Statute § 627.736(5)(b)(3) applies to both needle electromyography (“EMG’) procedures and nerve conduction velocity (“NCV”) testing or whether the 200% limitation contained in Florida Statute § 627.736(5)(b)(3) applies only to NCV testing.

B. Stipulated Facts

1. Teresa A. Fischer (“Fischer”) was involved in a covered automobile accident on November 4, 2001. At that time, she had a policy of insurance with the Defendant that provided No-Fault benefits.

2. Fischer was entitled to receive benefits for reasonable and necessary medical expenses incurred as a result of bodily injuries suffered in the November 4, 2001 accident.

3. Fischer, under the orders of her treating physician, Dr. Augustine Joseph, was ordered to undergo medically necessary EMG and NCV studies as a result of bodily injuries suffered in the car accident.

4. On February 27, 2002, Plaintiff performed Fischer’s EMG and NCV studies. The CPT codes for the procedures performed were: 95860, 95903, 95904 and 95934.

5. The medically necessary NCV testing was done in conjunction with EMG procedures.

6. Plaintiff timely submitted HCFA forms to Defendant for the February 27, 2002 NCV testing and EMG procedure in the amount of $3,150.00.

7. Defendant reduced the NCV charges and EMG charges to 200% of the allowable amount under the Medicare part B reimbursement schedule.

8. Defendant paid Plaintiff the sum of $1,106.66 for the February 27, 2002 NCV testing and EMG procedure. Of that amount, Defendant paid Plaintiff $159.18 of the $340.00 billed for the EMG procedure.

9. The parties stipulated that the testing was reasonable, medically necessary and related to the November 4, 2001 accident.

10. The Defendant’s sole basis for reducing payment for the EMG procedure at issue was that Defendant contends the 200% limitation described in Florida Statute §627.736(5)(b)(3) applies to both EMGs and NCVs.

C. Findings

1. This Court finds that no genuine issues of material fact exist which preclude summary judgment. Both Plaintiff and Defendant have filed Motions for Summary Judgment in this action. The only remaining issue for the Court to determine in this case is whether the 200% limitation contained in Florida Statute § 627.736(5)(b)(3) applies to both EMG procedures and NCV testing or whether the 200% limitation contained in Florida Statute § 627.736(5)(b)(3) applies only to NCV testing.

2. The No-Fault statute shall be construed liberally in favor of the insured. See e.g., Palma v. State Farm Fire & Cas. Co., 489 So.2d 147, 148-49 (Fla. 4th Dist. Ct. App. 1986); Derius v. Allstate Indemnity Co., 723 So.2d 271, 274 (Fla. 4th Dist. Ct. App. 1998); United Automobile Insurance Co. v. Viles, 726 So.2d 320 (Fla. 3rd D.C.A. 1998).

3. This Court finds the plain language of Section 627.736(5)(b)(3), Florida Statutes, unambiguous and clear on its face, in that, the 200% limitation contained in Florida Statute § 627.736(5)(b)(3) applies only to NCV testing. The phrases “when done in conjunction with a needle electromyography procedure” and “performed and billed by a physician licensed under. . .” simply qualify the NCV phrase found in the statute.

4. Even if this Court found that Section 627.736(5)(b)(3), Florida Statutes, was not clear on its face, the statutory construction and legislative intent would lead this Court to the same conclusion of law: the 200% limitation contained in Florida Statute § 627.736(5)(b)(3) applies only to NCV testing.

Accordingly, it is ORDERED AND ADJUDGED:

1. Plaintiff’s Motion for Final Summary Judgment is GRANTED. Plaintiff shall recover no-fault benefits pursuant to Section 627.736(5)(b)(3), Florida Statutes, as the 200% limitation contained in Florida Statute § 627.736(5)(b)(3) applies only to NCV testing.

2. Defendant shall pay $180.81 to Plaintiff in no-fault benefits, plus $41.71 in interest for which let execution issue;

3. Defendant’s Motion for Summary Judgment is DENIED; and

4. The Court reserves Jurisdiction to address the amount of taxable costs and attorney’s fees to be awarded to Plaintiff.

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