13 Fla. L. Weekly Supp. 375a
Insurance — Personal injury protection — Coverage — Medical expenses — Needle electromyography — Sections 627.736(5)(b)3 and 4 which provide that charge for nerve conduction testing may be reduced to workers’ compensation fee schedule when testing is performed in conjunction with needle EMG does not permit insurer to reduce needle EMG charge
GARY H. DIBLASIO, M.D., P.A., Plaintiff, vs. Progressive Auto Pro Insurance Company, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2004-SC-010476 SBRD. December 9, 2005. Debra Moses Stephens, Judge. Counsel: Glenn E. Siegel, Boca Raton. Blake Crane, West Palm Beach.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING CPT CODE 95861
This action was considered by this Honorable Court on December 1, 2005 on the Plaintiff’s Motion for Partial Summary Judgment Regarding CPT Code 95861. Upon consideration,
IT IS ORDERED and ADJUDGED that:
1. The Plaintiff’s Motion for Partial Summary Judgment Regarding CPT Code 95861 is hereby GRANTED.
2. The factual scenario involved in this case is as follows:
This claim involves a lawsuit for personal injury protection (P.I.P. benefits) filed by Gary H. DiBlasio, M.D., P.A. (DIBLASIO) against the Defendant, Progressive Auto Pro Insurance Company (PROGRESSIVE) for the improper payment of such benefits due. Kenya Parrish-Dixon (DIXON) was involved in an automobile accident on February 4, 2004, for which PROGRESSIVE was afforded P.I.P. coverage. DIXON treated with DIBLASIO for the injuries she sustained in the February 4, 2004 automobile accident, and assigned her rights and benefits under her policy of insurance with PROGRESSIVE to DIBLASIO. This Motion for partial summary judgment is limited to CPT Code 95861 which correlates to the needle EMG service performed by DIBLASIO on June 14, 2004. The needle EMG was performed on the same date of service as the nerve conduction studies performed. PROGRESSIVE reduced this service from the $600.00 billed charge to $113.00 based upon a workers compensation fee schedule pursuant to Florida Statute §627.736(5)(b)3. DIBLASIO’S contention is that the needle EMG should not be reduced pursuant to the workers compensation fee schedule.
3. The legal analysis regarding this issue is as follows:
Florida Statute §627.636(5)(b)3 and 4 were enacted to address the reimbursement rates for nerve conduction testing, and provides as follows:
(5) Charges for treatment of injured persons. —
(b)3. Allowable amounts that may be charged to a personal injury protection insurance insurer and insured for medically necessary nerve conduction testing when done in conjunction with a needle electromyography procedure and both are performed and billed solely by a physician licensed under chapter 458, chapter 459, chapter 460, or chapter 461 who is also certified by the American Board of Electrodiagnostic Medicine or by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association or who holds diplomate status with the American Chiropractic Neurology Board or its predecessors shall not exceed 200 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the price calendar year’s changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor. (emphasis added).
4.Allowable amounts that may be charged to a personal injury protection insurance insurer and insured for medically necessary nerve conduction testing that does not meet the requirements of subparagraph 3. shall not exceed the applicable fee schedule or other payment methodology established pursuant to s. 440.13. (emphasis added).
DIBLASIO is not certified by the American Board of Electrodiagnostic Medicine or by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association or who holds diplomate status with the American Chiropractic Neurology Board or its predecessors as referenced in Florida Statute §627.736(5)(b)3 above, and therefore falls under the reimbursement rates referenced above pursuant to Florida Statute §627.736(5)(b)4. Florida Statute §440.13 as referenced in Florida Statute §627.736(5)(b)4 pertains to the Worker’s Compensation fee schedule.
Dr. DiBlasio attests in his affidavit that the $600.00 charge for this procedure is reasonable in amount, and was timely submitted. In reading the plain language of the statute referenced above, it is clear that the services for which the applicable charges may be reduced are those for the nerve conduction testing, but only when such testing is performed in conjunction with needle EMG; however, nowhere in this statute does it permit PROGRESSIVE to reduce the needle EMG charge. Furthermore, Florida Statute §627.736(5)(b)4, under which DIBLASIO falls, does not even reference the needle EMG. Simply put the only charge that may be reduced pursuant to Florida Statute §440.13 is the nerve conduction testing, not the needle EMG.
The Plaintiff has also presented the Legislative History regarding this statutory provision. This is contained within the April 21, 2001 Senate Staff Analysis and Economic Impact Statement which specifically states:
Fee Schedule — Five additional diagnostic tests would be subjected to the fee schedule under the workers’ compensation statute (s. 440.13, F.S.), which is presently applicable only to thermograms. These five tests are: spinal ultrasounds, extremity ultrasounds, video fluoroscopy, surface electromyography, and nerve conduction testing. (emphasis added) (CS/CS/SB 1092, p.12, Apr. 23, 2001).
If Florida Statute §627.736(5)(b)3 and 4 were not clear enough on their face, the legislative history clearly indicates that, and as is applicable to this case, only the nerve conduction testing is subject to the worker’s compensation fee schedule, and NOT the needle EMG.
Therefore, this Court grants Partial Summary Judgment to the Plaintiff in the amount of $389.60, plus interest due at the statutory rate of 7% in the amount of $39.96 ($.0747 per diem), for which let execution issue. The Plaintiff is entitled to reasonable attorneys’ fees and costs for which this Court reserves jurisdiction to determine the reasonable amount.
