13 Fla. L. Weekly Supp. 345b
Insurance — Personal injury protection — Coverage — Medical expenses — Nerve conduction testing — Where NCV done in conjunction with needle electromyography was physically performed by physicians assistant working under medical provider’s license, test is not reimbursable at 200% of Medicare Part B rate, but at lower workers’ compensation fee schedule rate — Where amount insurer is entitled to recoup for overpayment for NCV far exceeds amount provider seeks in suit, provider cannot prevail, and insurer’s motion for summary disposition is granted
NORTHEAST FLORIDA NEUROLOGY CLINIC, INC., (as assignee for Miroslav Blazek), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2005-SC-2248, Division D. January 9, 2006. Russel L. Healey, Judge. Counsel: Kelly B. Hampton, The Gallagher Law Firm, Jacksonville, for Plaintiff. Patrick J. Snyder, Rinaman & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY DISPOSITION
THIS CAUSE, came to be heard on December 12, 2005, on the Defendant’s Motion to for Summary Disposition. Present before the Court appeared counsel for Defendant, Patrick J. Snyder, Esquire, and Kelly Hampton, Esquire, counsel for Plaintiff. The Court having reviewed the Motion, having heard the argument of counsel, having reviewed the relevant case law and being otherwise fully advised in the premises, finds:
1. Plaintiff filed suit claiming Defendant did not make payment of no-fault benefits for medical treatment provided by Plaintiff to the insured, Mirolslav Blazek. Plaintiff’s Complaint paragraph one (1) indicates that the action is for less than one hundred dollars ($100.00).
2. Plaintiff submitted a Health Insurance Claim Form (“HCFA”) and medical note to Defendant for nerve conduction tests (“NCV”) done in conjunction with a needle electromyography (“EMG”) rendered to the insured on October 28, 2004. The HCFA and the medical note submitted to Defendant indicate that the testing was performed by Richard Boehme, M.D.
3. Defendant paid 200% of the Medicare Part B schedule for the NCV testing pursuant to FLORIDA STATUTE §627.735(5)(b)(3).
4. Defendant has filed this Motion for Summary Disposition claiming that Plaintiff has been paid in excess of that permitted under subsection (5)(b) and; therefore, Defendant is entitled to a recoupment. Defendant’s plea of recoupment would reduce the Plaintiff’s claim to the extent of the right of recoupment pleaded and proved. Storrs v. Storrs, 178 So. 841 (Fla. 1937).
5. Defendant does not dispute that the NCV and EMG was billed solely by Dr. Richard Boehme. Box 31 of the HCFA clearly shows Richard J. Boehme as the physician submitting the claim. However, through discovery, Plaintiff has admitted that the NCV and EMG testing was physically performed by George Robinson, a Physicians Assistant, working under Dr. Richard Boehme’s medical license.
6. FLORIDA STATUTE §627.735(5)(b)(3) states:
“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. . .”
7.If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. If the statute is clear and unambiguous, the Court is not free to add words to steer it to a meaning which its plain wording does not supply. Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc., 766 So. 2d 299 (Fla. 4th DCA 2000).
8. The clear and unambiguous language of the statute states that in order to be reimbursed at 200% of the Medicare Part B rate the NCV and EMG procedure must be performed and billed solely by a physician. If the requirements of subsection (5)(b)(3) are not met, the testing must be reimbursed pursuant to FLORIDA STATUTE §627.736(5)(b)(4).
9. Defendant does not argue and this court does not find that NCV tests performed by physicians assistants are not reimbursable under the No-Fault laws. Clearly, medical services lawfully rendered by physicians assistants are reimbursable. However, because the NCV and EMG testing in the present case was not solely performed and billed by a licensed physician, the Plaintiff should have been reimbursed at the Worker’s Compensation fee schedule pursuant to subsection (5)(b)(4).
10. Defendant’s reimbursement to Plaintiff pursuant subsection (5)(b)(3) has resulted in Plaintiff receiving an overpayment of insurance proceeds that was not justified or warranted. Defendant paid Plaintiff $484.40 for the NCV testing; however, Plaintiff should have been reimbursed $260.00. Therefore, Plaintiff was overpaid $224.40 and Defendant is entitled to a recoupment in that amount. As the overpayment far exceeds the amount that Plaintiff is seeking in this lawsuit, Plaintiff cannot prevail in this action and; therefore, Defendant’s Motion for Summary Disposition is GRANTED.
IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff, NORTHEAST FLORIDA NEUROLOGY CLINIC, INC., (as assignee for Miroslav Blazek), take nothing by this action and Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
