15 Fla. L. Weekly Supp. 615a
Insurance — Personal injury protection — Coverage — Medical expenses — Nerve conduction velocity test and electromyography procedure — Denial of motion for reconsideration of order holding that, where statute allows charges for NCV testing done in conjunction with EMG procedure to be billed at rate not exceeding 200% of fee schedule of Medicare Part B when both procedures are performed and billed solely by appropriately licensed physician and for payment under lower workers’ compensation rates when NCV does not meet those requirements, medical provider’s use of medical and physician assistants to perform physical portions of NCV and EMG did not require that provider be paid only under lower rates — Insurer that did not pay consumer price adjustment for year 2002 for either MRI or EMG/NCV charges did not pay amount due
Per curiam affirmed November 18, 2008.
ALL FAMILY CLINIC OF DAYTONA BEACH, INC. d/b/a FLORIDA MEDICAL ASSOCIATES as assignee for NATASHA RENWICK, Plaintiff(s), vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant(s). County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2005 30302 COCI. April 2, 2008. David H. Foxman, Judge. Counsel: Luis R. Gracia, and Edward S. Rue, Rue & Ziffra, P.A., Port Orange, for Plaintiff. James C. Rinaman, III, James C. Rinaman, III & Associates, P.A, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR RECONSIDERATION
[Original Opinion at 13 Fla. L. Weekly Supp. 158a]
This cause coming on to be heard upon Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Reconsideration the Court’s previous ruling on Defendant’s Motion for Partial Summary Judgment and Plaintiff’s Cross-Motion, and the Court having reviewed legal authorities, considered the pleadings, affidavits, and arguments of counsel, and being sufficiently advised on the premises, hereby finds and holds as follows:
FINDINGS OF FACT
The Court adopts the following facts as it finds them to be undisputed:
1. On January 29, 2004, Natasha Renwick, a State Farm insured, was involved in a motor vehicle accident wherein she sustained bodily injuries.
2. As a result of her injuries, Ms. Renwick underwent medical treatment under the care of the Plaintiff, All Family Clinic. Ms. Renwick also executed an Assignment of Benefits in favor of the Plaintiff which was presented to the Defendant, State Farm.
3. As part of Ms. Renwick’s medical treatment, Dr. Frank Alvarez Jr., a board certified neurologist employed by the Plaintiff, ordered a Nerve Conduction Velocity (NCV) test to be performed in conjunction with a needle electromyography (EMG) procedure in order to determine whether Ms. Renwick suffered any nerve damage in the accident. The Defendant does not contend the necessity of the testing or the relatedness of such to Ms. Renwick’s motor vehicle accident.
4. Said NCV and EMG testing were done on March 23, 2004 at the Plaintiff’s facility with equipment owned by the Plaintiff.
5. The physical portion of the NCV test was conducted by Emily Fillipo, a full time medical assistant employed by the Plaintiff who works as Dr. Alvarez’s EMG tech, while the physical portion of the needle EMG procedure was performed by Dr. Alvarez’s physician’s assistant, John Plourde, also a full time employee of the Plaintiff. At all times material hereto Dr. Alvarez was in the office (Plaintiff’s premises) while the testing was being performed. Finally, Dr. Alvarez read and interpreted the raw data rendered by the procedures.
6. After the NCV and EMG tests were completed, the Plaintiff billed State Farm a charge based on CPT codes 95900 and 95904, including an additional amount representing an adjustment pursuant to the Medical Care Item of the Consumer Price Index (CPI) for All Urban Consumers in the South Region.
7. The Defendant paid the Plaintiff for the NCV and EMG tests an amount based on 200 percent of the participating physician fee schedule of Medicare Part B but did not pay the CPI adjustment to the satisfaction of the Plaintiff. As a result, Plaintiff filed suit against State Farm.
PROCEDURAL POSTURE
8. After the pleadings were closed, Defendant filed a Motion for Partial Summary Disposition on the issue of whether Defendant overpaid Plaintiff for the NCV/EMG services at issue. Defendant argued that Fla. Stat. § 627.736(5)(b)(3) allows providers to charge 200% of the participating of Medicare Part B only for nerve conduction testing when “done in conjunction with a needle electromyography procedure and both are performed and billed solely by a physician.” Due to the fact that John Plourde, a physician’s assistant, and Emily Fillipo, a medical assistant, performed the physical portions of the tests, Defendant argued that the tests were not performed solely by a physician, and Plaintiff should have been paid at the worker’s compensation fee schedule rate pursuant Fla. Stat. § 627.736(5)(b)(4).
9. In response to Defendant’s motion, Plaintiff also moved for Partial Summary Disposition arguing, inter alia, that it complied with section 627.736(5)(b)(3) as intended by the legislature and that Defendant’s literal interpretation of the above mentioned section would undermine the intent of the legislature of encouraging physicians to use medical and physician assistants, disregard the practice and custom of business dealings between insurers and medical providers and would otherwise lead to absurd and unintended results.
10. In an order dated October 17, 2005, the Honorable H. Pope Hamrick entered an order denying Defendant’s Motion for Partial Summary Disposition and granting Plaintiff’s Motion for Partial Summary Disposition.
11. Plaintiff then filed a Motion for Final Summary Judgment on the issue of the CPI adjustment, claiming that defendant did not pay the amount due and owing to Plaintiff for the dates of service at issue because Defendant did not pay a CPI adjustment for the year 2002 for either the MRI charge or the EMG/NCV charges.
12. Before the hearing on Plaintiff’s Motion for Final Summary Judgment, Plaintiff submitted the Final Consent Judgment entered in Open MRI of Miami-Dade, Ltd. v. State Farm Mutual Automobile Insurance Company, Case No. 04-03503-CA22, 11th Cir., Miami-Dade County, dated February 21, 2008 as additional authority. The Final Consent Judgment details the timing and method of the CPI adjustment.
13. Defendant moved the Court to reconsider its earlier ruling on the interpretation of Fla. Stat. § 627.736(5)(b)(3). In support of its Motion for Reconsideration, Defendant filed two county court cases from Duval County that conflicted with Judge Hamrick’s earlier ruling: Northeast Florida Neurology Clinic, Inc. a/a/o Miroslav Blazek v. Progressive American Insurance Company, 13 Fla. L. Weekly Supp 345b (Fla. Duval Cty. Ct. January 9, 2006), and Northeast Neurology Clinic, Inc. a/a/o Deryll Matthew v. Progressive American Insurance Company, 13 Fla. L. Weekly Supp 489b (Fla. Duval Cty. Ct. February 16, 2006).
RULING
14. The Court finds the reasoning in the Final Consent Judgment entered in Open MRI of Miami-Dade, Ltd. v. State Farm Mutual Automobile Insurance Company, Case No. 04-03503-CA22, 11th Cir., Miami-Dade County, dated February 21, 2008 to be persuasive and, therefore, Plaintiff’s Motion for Final Summary Judgment is GRANTED.
15.Defendant’s Motion for Reconsideration is DENIED.
The Plaintiff, All Family Clinic of Daytona Beach, Inc. d/b/a/ Florida Medical Associates, as assignee of Natasha Renwick, shall recover $49.03 for medical expenses under the applicable personal injury protection coverage and $16.65 for prejudgment interest on overdue benefits, for a total of $65.68 from Defendant, State Farm Mutual Automobile Insurance Company for which let execution issue.
The Court hereby reserves jurisdiction for the purpose of awarding attorney’s fees and costs to Plaintiff pursuant to Florida Statutes 627.736 and 627.428.
