15 Fla. L. Weekly Supp. 713a
Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable charges — Where medical provider does not accept Medicare patients and is not certified provider for workers’ compensation patients, Medicare and workers’ compensation fee schedules are irrelevant to issue of reasonableness of charges for treatment that does not include nerve conduction testing, MRI or other procedures listed in section 627.736(5)(a)(2) — Motion to take judicial notice of fee schedules denied
MCGOWAN SPINAL REHABILITATION CENTER, P.A., (as assignee of Preston Cannon), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2007-SC-008862, Division L. May 20, 2008. Harold C. Arnold, Judge. Counsel: James C. Rinaman, III, Jacksonville. Nicholas A. Zacharewski, BeachLifeLaw, Jacksonville Beach.
ORDER DENYING DEFENDANT’S MOTION FOR JUDICIAL NOTICE
This matter having come before the Court on April 23, 2008 for hearing of the Defendant’s Motion for Judicial Notice. Present before the Court appeared counsel for Plaintiff, Nicholas A. Zacharewski, Esquire, and counsel for Defendant, James C. Rinaman, III. Having heard arguments of counsel, reviewed the pleadings, motions, and evidence before the Court and being otherwise fully advised in the premises, the Court finds as follows:
1. The Plaintiff filed this lawsuit for unpaid No-Fault/Personal Injury Protection (“PIP”) benefits. The Plaintiff is disputing the amounts allowed in payment by Defendant for medical services provided to Preston Cannon on June 13, 2007; June 14, 2007; June 26, 2007; June 27, 2007; June 29, 2007; July 2, 2007; July 5, 2007; and July 6, 2007.
2. Pursuant to Florida Statutes §§ 627.730-627.7405, Defendant is responsible for payment of medical services that are both reasonable in amount and medically necessary. Medical providers may only charge a PIP insurer a reasonable amount for the services rendered to its insureds. F.S. § 627.736(5)(a) (2007).
3. Florida Statute §627.736(5)(a) states: “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.” (emphasis added).
4. Defendant requests this Court take judicial notice of the Medicare Part B Physician and Non-Physician Practitioner Fee Schedule Book and the Florida Worker’s Compensation Health Care Provider Reimbursement Manual in effect for the year 2007. Specifically, Defendant seeks judicial notice of the information relevant to the maximum reimbursement schedule for services identified by CPT Codes: 99202; 99212; 99070; 97014; 97010; 97039; 97024; and 98941 for the year 2007 in Plaintiff’s geographic region.
5. Defendant asserts that the Medicare Part B Physician and Non-Physician Practitioner Fee Schedule and Florida Worker’s Compensation Health Care Provider Reimbursement Schedules are relevant in computing the reasonable charge for services and/or treatment provided by a medical provider pursuant to Florida Statute § 627.736(5)(a). Further, Defendant asserts that the Legislature’s use of the Medicare Fee Schedule and the Worker’s Compensation Reimbursement Rates in other portions of the Florida No-Fault Law denote the relevance of both fee schedules in the case sub judice.
6. Defendant’s assertion that the mention of the fee schedules throughout the No-Fault Statute is misplaced. The Florida No-Fault Act allows reimbursement at the rates provided from Medicare only for medically necessary nerve conduction testing when done in conjunction with needle electromyography as well as magnetic resonance imaging. Florida Statutes §§ 627.736(5)(a)(3) & (5) (2007). Further, the act references the Worker’s Compensation fee schedule for nerve conduction testing that does not meet the requirements of subsection (5)(a)(3) and other procedures listed in subsection (2). Florida Statutes §§ 627.736(5)(a)(2) & (4) (2007).
7. It is undisputed that the charges at issue in this action do not include nerve conduction testing with or without needle electromyography or magnetic resonance imaging. Further, it is uncontested that the charges in this dispute are not listed in subsection (5)(a)(2).
8. Defendant erroneously relies on Florida Statute § 627.736(5)(a) to assert that consideration may be given to Medicare Part B Physician and Non-Physician Practitioner Fee Schedule Book and the Florida Worker’s Compensation Health Care Provider Reimbursement Manual in effect for the year 2007.
9. It is undisputed that Plaintiff does not accept payments from Medicare for treatment rendered to patients involved in motor vehicle accidents. Further, Defendant is not a certified provider for Worker’s Compensation pursuant to Florida Statute §§ 440.13(d), (h) and as such, Plaintiff is not eligible for reimbursement under the Florida Worker’s Compensation Reimbursement Manual for the year 2007. See Florida Statute § 440.13(3)(a) (2007).
10. In Progressive Auto Pro Insurance Company v. Doctor’s Pain Management Associates a/a/o Dalon Finley, 14 Fla. L. Weekly Supp. 1010a (9th Judicial Cir., Orange Cty., July 17, 2007), the Court found no abuse of discretion in finding that the Medicare fee schedule was irrelevant where provider does not accept Medicare patients. Further, the Court found the workers’ compensation fee schedule irrelevant where, although provider accepts workers’ compensation patients, fee schedule is not only way provider receives payment for their treatment. In the case sub judice, it is undisputed that the provider, McGowan Spinal Rehabilitation Center, P.A., does not accept Medicare patients and is not a certified provider for workers’ compensation patients.
11. If the fee schedules are not relevant, then they would not be admissible even if they were subject to judicial notice. Progressive Auto Pro Insurance Company v. Doctor’s Pain Management Associates a/a/o Dalon Finley, 14 Fla. L. Weekly Supp. 1010a (9th Judicial Cir., Orange Cty., July 17, 2007) (quoting Stoll v. State, 762So. 2d (Fla. 2000) (“[D]ocuments contained in a court file, even if that entire court file is judicially notice, are still subject to the same rules of evidence to which all evidence must adhere.”)).
Therefore, it is accordingly ORDERED and ADJUDGED that Defendant’s Motion for Judicial Notice is hereby denied.
