14 Fla. L. Weekly Supp. 1010a

Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable charges — Evidence — No error in admitting explanation of benefits forms from insurer and other entities that paid medical provider’s charges in full — No abuse of discretion in finding that Medicare fee schedule was irrelevant where provider does not accept Medicare patients — No abuse of discretion in finding workers’ compensation fee schedule irrelevant where, although provider accepts workers’ compensation patients, fee schedule is not only way provider receives payment for their treatment — No abuse of discretion in finding that testimony of physician who used to work for provider and who treated insured regarding his understanding of what the test he ordered would accomplish was not relevant to issue of reasonableness of charge for test — No abuse of discretion in sustaining relevancy objection to testimony of physical therapist who does not practice in same community as provider

PROGRESSIVE AUTO PRO INSURANCE COMPANY, Appellant, v. DOCTOR’S PAIN MANAGEMENT ASSOCIATES, as assignee of DALON FINLEY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 05-42. L.C. Case No. 2003-CC-10953. July 17, 2007. Appeal from the County Court for Orange County, Leon B. Cheek, III, Judge. Counsel: Heather C. Goodis, Thompson, Goodis, Thompson, Groseclose & Richardson, P.A., St. Petersburg, for Appellant. James D. Pacitti, Morgan & Morgan, P.A., Orlando, for Appellee.

(Before ADAMS, J., KIRKWOOD, and ROCHE, JJ.)

FINAL ORDER AND OPINION AFFIRMING TRIAL COURT

(PER CURIAM.) Progressive Auto Pro Insurance Company (“Appellant”) filed this appeal of the final judgment.¹ This Court has jurisdiction. Fla. R. App. P. 9.030(c)(1)(A).

Appellee, a medical provider acting under an assignment from Appellant’s insured, brought suit against Appellant for payment of PIP benefits. Although Appellant paid some portion of Appellee’s charges, Appellant did not pay the full amount that Appellee billed. The only issue for trial was whether Appellee’s billed charges were reasonable.

At trial, Appellee introduced into evidence Explanation of Benefits forms (EOBs) from Appellant and other entities where they had paid Appellee’s charges in full. Appellant objected to the introduction of the EOBs on the basis of relevancy, but the trial court overruled the objection.

Appellant attempted to introduce into evidence, via judicial notice, the worker’s compensation fee schedule. Appellee testified that he does treat worker’s compensation patients for a reduced rate, in exchange for receiving those patients. In not allowing in evidence the worker’s compensation fee schedule, the trial court noted that Appellee does not have a contract with Appellant whereby Appellant sends Appellee its insureds in exchange for Appellee charging a reduced rate. Also, Appellee could receive payment by treating worker’s compensation patients in addition to the fee schedule via certain forms or for other affiliated services. The trial court found that this precluded admitting the worker’s compensation fee schedules, as the evidence that a medical provider that accepts worker’s compensation patients could in actuality receive more money than the amount on the fee schedule rendered the fee schedule not comparable to Appellee’s charges. Appellant also attempted to introduce into evidence the Medicare fee schedule, but the trial court found that this schedule was also irrelevant because Appellee does not accept Medicare patients.

In Appellant’s case, Appellant presented Dr. Borges, one of the physicians that used to work for Appellee and treated Appellant’s insured. Dr. Borges testified that he had a “minimal” idea of what the ultrasound he ordered for Appellant’s insured would do. (Trial Tr. 401.) Appellant then attempted to impeach Dr. Borges based on his earlier testimony that he did not know what the ultrasound would do, but Appellee objected based on relevancy. Appellant argued that Dr. Borges’ testimony regarding the treatment he ordered and his understanding of how this treatment would improve the insured’s medical condition was relevant to the issue of the reasonableness of Appellee’s charges. The trial court sustained the objection, stating that the only issue before the jury was the reasonableness of the bill, and not whether the treatment itself was necessary or reasonable.

Appellant’s next witness was a physical therapist from Gainesville, Florida, David Omura. Appellant’s intention was to elicit from Omura his opinion as to what reasonable charges for the services Appellee performed should be. Appellee objected, arguing that Omura’s testimony would be irrelevant because he practices in Gainesville. The trial court sustained the objection, finding that Gainesville is not the same community as Orlando. In making this determination, the trial court noted that Appellant itself pulled information only from the “328” zip code in deciding what a reasonable charge should be.

The jury found for the Appellee that all of the Appellee’s charges except one were reasonable, and the trial court entered a Final Judgment for Appellee on January 31, 2005. After the trial court denied Appellant’s motion for new trial, Appellant timely filed this appeal.

The standard of review regarding the trial court’s admission or exclusion of evidence is abuse of discretion. Stewart & Stevenson Servs., Inc. v. Westchester Fire Ins. Co., 804 So. 2d 584, 587 (Fla. 5th DCA 2002); Dorsey v. Reddy, 931 So. 2d 259, 266 (Fla. 5th DCA 2006) (“The trial court’s decision regarding the admission of testimony is reviewed for abuse of discretion.”). This same standard of review applies if there is a question as to the relevancy of the evidence. Grau v. Branham, 761 So. 2d 375, 378 (Fla. 4th DCA 2000) (“Overall, broad discretion rests with the trial court in matters relating to the admissibility of relevant evidence, and that ruling will not be overturned absent a clear abuse of discretion.”).

Appellant’s first argument is that the trial court erred in admitting into evidence Explanation of Benefits forms from Appellant and other entities where they had paid Appellee’s charges. Appellant argues that these EOBs are irrelevant and section 627.736, Florida Statutes, does not provide for their admission.

Section 627.736(5)(a), states the following:

With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

§ 627.736(5)(a), Fla. Stat. (2005) (emphasis added).

The EOBs certainly evidence “usual and customary charges and payments accepted by the provider . . . .” as they set forth the amount Appellee billed and was paid. Appellant argues that the statute does not provide for admission of this type of documentary evidence. The statute, however, simply refers to the term “evidence,” and not to a particular type of evidence, such as documents or testimony. Accordingly, this argument is rejected. As the EOBs were relevant to the issue of whether Appellee’s charges were reasonable, and section 627.736(5)(a), states that the finder of fact may consider evidence of usual and customary charges and payments accepted by the provider, the trial court did not abuse its discretion in admitting the EOBs. But see Madock v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 408b (Fla. 13th Cir. Ct. Mar. 3, 2004) (finding that the trial court correctly refused to admit evidence of payment by other insurers, as such evidence only proved payment, “not the correctness of another insurer’s decision to pay.”).

Next, Appellant argues that the trial court erred in excluding the Medicare and worker’s compensation fee schedules based on the objection of relevancy. Appellant also argues that the trial court erred in not taking judicial notice of the two fee schedules. As Appellant notes in the Initial Brief, however, if the fee schedules are not relevant, then they would not be admissible even if they were subject to judicial notice. See Stoll v. State, 762 So. 2d 870, 876-77 (Fla. 2000) (“[D]ocuments contained in a court file, even if that entire court file is judicially noticed, are still subject to the same rules of evidence to which all evidence must adhere.”).

One basis the trial court gave for excluding the Medicare fee schedules is that Appellee did not accept Medicare patients. Appellant argues that this does not matter because section 627.736(5)(a), specifically permits the trial court to consider “federal and state medical fee schedules applicable to automobile and other insurance coverages . . . .” Appellant implies that this language in the statute mandates admission of the Medicare and worker’s compensation fee schedules. A review of the complete sentence, however, negates this proposition. The sentence begins, “With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given . . . .” § 627.736(5)(a), Fla. Stat. (2005) (emphasis added). The statute states that the trial court may consider such evidence; not that it must do so. Because the statute states that the trial court may consider the fee schedule, and does not mandate consideration of the fee schedule, the trial court did not abuse its discretion in finding that the Medicare fee schedule was irrelevant because Appellee did not accept Medicare patients.

Appellant also argues that the fee schedules are relevant to the charges that Appellee accepted, as there is evidence that Appellee did accept worker’s compensation patients. The evidence before the trial court was that although Appellee accepts some worker’s compensation patients, the fee schedule was not the only way Appellee received payment for providing treatment to those patients. Instead, Appellee also could receive payment in addition to the fee schedule by treating worker’s compensation patients via certain forms or for other affiliated services. In addition, in exchange for the lower payments, Appellee received patients. Thus, the fee schedule may not have been an accurate representation of the amount Appellee received for treating worker’s compensation patients. The trial court noted that this was different from the facts before it, as Appellee did not have a contract with Appellant whereby Appellee would receive Appellant’s insureds as patients. Therefore, the trial court did not abuse its discretion in finding that the worker’s compensation fee schedule was not relevant to the reasonableness of Appellee’s charges.

Appellant’s last argument is that the trial court erroneously excluded the testimony of its witnesses Dr. Borges and David Omura, a physical therapist. When Appellant was examining Dr. Borges, he testified that he had a “minimal” idea of what the ultrasound he ordered for Finley would do. (Trial Tr. 401.) Appellant then attempted to impeach Dr. Borges, but Appellee objected based on relevancy. The trial court sustained the objection, stating that the only issue before the jury was the reasonableness of the bill, and not whether the treatment was necessary or reasonable. On appeal, as well as before the trial court, Appellant argues that Dr. Borges’ testimony regarding “the treatment he ordered for Finley and his understanding of what this treatment would do for [her] in terms of improving her medical condition” was relevant to the issue of the reasonableness of Appellee’s charges. (Initial Br. 26.)

The parties agreed throughout the trial that the only issue before the jury was the reasonableness of the charges. Appellant did not dispute that the treatment itself was reasonable or necessary. Thus, the trial court did not abuse its discretion in finding that Dr. Borges” understanding of what the ultrasound would accomplish was not relevant to whether the amount billed for that ultrasound was reasonable.

Appellant also argues that Omura’s testimony regarding “utilization of certain CPT codes and the charges for same are relevant to the issue of whether [Appellee] charged a ‘reasonable’ amount for the physical therapy treatment rendered to Finley.” (Initial Br. 27.) Appellant asserts that the trial court erred in finding that Omura’s testimony was not relevant because Omura practices in Gainesville, and Gainesville is a different community than Orlando. Appellant notes that its other witness, Dr. Guskiewicz, also practices in Gainesville, but his testimony was not excluded.

Dr. Guskiewicz, however, testified that he lived and practiced in the central Florida area, specifically Winter Park, for twenty years. More importantly, though, Appellee did not object to any of Dr. Guskiewicz’s testimony, so the trial court was not called upon to rule regarding its relevancy. In contrast, Appellee specifically objected to Omura’s testimony as irrelevant because Omura practices in Gainesville.

Section 627.736(5)(a) specifically states that when considering the reasonableness of the charge for a particular service, consideration may be given to reimbursement levels in the community. The trial court found that Gainesville is not the same community as Orlando. In making this determination, the trial court noted that Appellant itself pulled information only from the “328” zip code in deciding what a reasonable charge should be. The trial court also stated that there was no evidence as to whether the demographics and cost of living are the same in Gainesville as they are in Orlando.

The trial court did not abuse its discretion in sustaining Appellee’s relevancy objection. The reimbursement level in the community is the relevant consideration pursuant to section 627.736(5)(a), and there was evidence that Appellant itself did not consider the charges in Gainesville when it determined what a reasonable charge should be. Finally, there was no evidence before the trial court when he made his ruling as to how Gainesville and Orlando are similar communities. Thus, the Court affirms the trial court’s ruling that Omura’s testimony was irrelevant.

As the trial court did not abuse its discretion in making its evidentiary rulings regarding relevancy, the Court affirms the final judgment.

Both Appellant and Appellee timely filed motions seeking an award of appellate attorney’s fees. Because the final judgment is affirmed, Appellant’s motion for attorney’s fees is denied.

Appellee seeks appellate attorney’s fees pursuant to Section 627.428, Florida Statutes, and Florida Rule of Appellate Procedure 9.400. Appellee is the prevailing party, and therefore its motion for attorney’s fees is granted and those fees should be assessed by the trial court if Appellee timely files a motion with the lower court within thirty days from the date of the mandate. Fla. R. App. P. 9.400; § 627.428, Fla. Stat. (2005).

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. The Final Judgment entered by the trial court is AFFIRMED.

2. Appellee’s motion for appellate attorney’s fees is GRANTED. Appellee shall have thirty days from the date of the mandate to file a proper motion pursuant to Florida Rule of Appellate Procedure 9.400(a) with the lower tribunal.

3. Appellant’s motion for appellate attorney’s fees is DENIED.

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¹Although Appellee filed a Notice of Cross-Appeal, Appellee did not argue in its brief that the trial court erred.