12 Fla. L. Weekly Supp. 1102a
Insurance — Personal injury protection — Coverage — Medical expenses — Usual and customary charges — Judgment of insurer’s adjuster as to whether charges are usual and customary based on software “Fees on Disc” and AMA CPT code book cannot substitute for physician’s report required before withdrawal of benefits — Where adjuster does not know basis for amount given as ususal and customary charges by software, adjuster’s testimony is incompetent evidence insufficient to raise genuine issue of material fact — Where insurer obtained chiropractor’s report based on independent medical examination to withdraw further benefits, but treating chiropractor’s affidavit established that insurer received requests for payment for treatment prior to date of IME report, medical provider is entitled to partial summary judgment on issue of liability for treatment prior to IME date
SPINAL HEALTH & REHABILITATION CENTERS, LLC a/a/o JENNIFER CONDE, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-1046 COCE 53. August 15, 2005. Robert W. Lee, Judge. Counsel: Casey Fundaro, Fort Lauderdale. Eddia De Jean, Coral Gables.
ORDER GRANTING IN PART PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT AND/OR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on August 11, 2005 for hearing of the Plaintiff’s Motion for Summary Judgment and/or Partial Summary Judgment, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background:
1. This PIP matter was filed in January 2003. The matter has been extensively litigated. The most recent Amended Answer which governs this dispute was served on August 19, 2004. Four defenses are alleged. The First Affirmative Defense of fraud was withdrawn on September 8, 2004. The Second Affirmative Defense alleges that Plaintiff’s charges are in excess of usual and customary for the Plaintiff’s geographic area. Defendant’s Third Affirmative Defense is that Plaintiff is not entitled for payments for orthopedic care after August 13, 2002, the date of an IME cut off by Richard Glatzer, M.D. Defendant’s Fourth Affirmative Defense is that the Plaintiff is not entitled to payments after August 29, 2002, the date of an IME cut off by a chiropractic expert, Dr. Kogut.
2. The following facts are undisputed:
a. The patient, Jennifer Conde, received chiropractic care and/or treatment from the Plaintiff, Spinal Health and Rehabilitation Center, LLC for injuries sustained in a motor vehicle accident on June 4, 2002. All of the treatment is related to the accident.
b. The Defendant insurer issued a policy of automobile insurance which provided personal injury protection benefits to Jennifer Conde as required by State law.
c. The insurance policy was in effect on the date of the accident and provided PIP coverage to Jennifer Conde for bodily injuries sustained in the accident.
d. Jennifer Conde properly executed an Assignment of Benefits assigning her rights to Plaintiff to the benefits of insurance under the automobile insurance with United Auto.
e. From early June of 2002 to January 13, 2003, Plaintiff submitted charges to the insurer for payment under the PIP policy in the total amount of $5,274.00.
f. On August 8, 2002, the insurer had Dennis Kogut, D.C. perform an independent medical examination upon Jennifer Conde in which he determined that further chiropractic treatment would not be reasonable, related or medically necessary. Dr. Kogut expressed no opinion with regard to medical necessity of treatment prior to August 8, 2002.
g. No peer review was conducted by any physician or chiropractor or any other health care provider.
i. Plaintiff has filed two affidavits of Jason Marucci, D.C. and an affidavit of Jason Lopate, D.C. in support of its motion. Jason Lopate, D.C. states that he treated Ms. Conde for dates of service including June 6, June 10, June 12, June 13, June 17, June 18, June 25, June 26, June 27, July 8, July 12, July 30, July 31, August 13, August 20, September 26, October 3, October 22, October 30, December 5 and December 16.
j. Dr. Lopate opines that all of the treatment was medically necessary and related to injuries sustained in the June 4, 2002 motor vehicle accident. He further opines that the charges were reasonable based on his experience as a licensed chiropractor, his knowledge of charges in the community, that he billed each date of service using the proper CPT code for the year 2002.
k. Defendant acknowledged as exhibited by its PIP payout sheet that it received claims for June 6, June 10, June 12, June 13, June 17, June 18, June 25, June 26, June 27, July 8, July 12, July 30, July 31, August 13, October 2002, December 5, 2002, December 16, 2002 in the total amount of $4,793.00.
l. Defendant has admitted that there is no dispute that a motor vehicle accident occurred involving Ms. Conde on June 4, 2002, that she was injured on that date, that there were medical bills incurred, that they received written notice promptly and that they received written notice of a covered loss in a timely submitted fashion.
3. Defendant argues that there is a genuine issue of material fact as to the amount of bills as usual and customary. Defendant has filed no affidavits or otherwise in opposition to the Plaintiff’s motion. Defendant’s argument that the amount of bills are beyond usual and customary is based entirely on the judgment of adjuster Octavio Cruz. In his deposition, he cites his 3½ years of experience using CPT codes as the basis of his opinion regarding usual and customary charges. Mr. Cruz also identifies a software program that he used entitled “Fees on Disc” as the basis for his opinion. He also claims as the basis of his opinion that he referred to the AMA CPT Code Guide for 2002.
4. Mr. Cruz could not give the basis for “Fees on Disc” except to say that it gives him a range of charges within a certain zip code that are usual and customary. He admitted that he really doesn’t know the basis of the amount given for a usual and customary charge on the “Fees on Disc” other than the fact that “Fees on Disc” apparently do a survey related to charges in each zip code. As to the exact specifics as far as who was pooled or asked for their usual and customary charges to arrive at the usual and customary range, he testified that he did not know. Where Cruz does not know the basis for the “Fees on Disc”, his testimony is incompetent evidence insufficient to raise a genuine issue of material fact.
Conclusions of Law.
5. Under Florida PIP law, an insurer cannot withdraw or deny further medical payments without first obtaining a physician’s report required by F.S. 627.736(7)(a). See, United Automobile Insurance Company v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998). Although United obtained a chiropractor’s reporter on August 8, 2002 to withdraw further benefits, the record evidence establishes that the Defendant received requests for payment for treatment prior to that date which it failed to pay.
6. The judgment of Octavio Cruz, the AMA CPT code book for 2002 software “Fees on Disc” cannot substitute for a physician’s report under 627.736. The evidence is hearsay. Even if the Cruz testimony was to be considered, Defendant has not come forward with any evidence that Mr. Cruz has any peculiar expertise, certifications or training to evaluate the amount of charges in the community. He is not a certified coder and has no expert knowledge in the area. See United Automobile Ins. Co. v. Neurology Assoc. Group Two, Inc., 11 Fla. L. Weekly Supp. 204 (11th Cir. Ct. 2004).
7. The affidavit of Jason Lopate is undisputed, competent, sworn evidence of chiropractic charges prior to the IME. As the $2000 deductible had been met, 80% of $3,614.00 is $2,891.20. Plaintiff is entitled to partial summary judgment on the issue of liability for treatment prior to August 8, 2002, and that the amount of reasonable, related and medically necessary treatment is $2,891.20 plus interest.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED IN PART. The undisputed facts establish that the Plaintiff is, at a minimum, entitled to $2,891.20 plus interest as set forth in this order. Pursuant to Rule 1.510(d), the Court finds that the material facts set forth in Paragraph 2 have been established without further controversy, and at any further hearing or trial in this case, these facts shall be deemed established without the necessity of any further evidence or argument. This Court reserves jurisdiction to award attorneys fees and costs under F.S. 627.428 and other authority.
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