16 Fla. L. Weekly Supp. 164b

Online Reference: FLWSUPP 162DOAN

Insurance — Personal injury protection — Discovery — Insurer’s presuit discovery of facts is not limited to five areas of inquiry listed in section 627.736(6)(b) — Insurer is entitled to presuit discovery of all documents and information requested from medical provider with exception of items seeking any and all information evidencing what provider billed to and accepted from Medicare, Medicaid, workers’ compensation, and private healthcare insurers as payment for CPT codes at issue — Provider ordered to produce for depositions all persons involved in determination, selection, and utilization of CPT Codes and charges associated therewith as reflected in claim forms submitted to insurer, as well as information or documentation evidencing what provider billed to and accepted from any and all PIP insurers during specified period

ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY (In Re: Ann Doan), ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY (In Re: Sandra Ortiz), ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY (In Re: Natalia Paez), ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY (In Re: Denny Tran), ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY (In Re: Carlos Amaya Vaquerano), ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY (In Re: Julio C. Gavaria), NORTHBROOK INDEMNITY COMPANY (In Re: Nilvia Negron), Petitioners/Movants, vs. TOTAL REHAB AND MEDICAL CENTERS, INC., Respondent. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 07-020242-CACE-05. ALLSTATE INSURANCE COMPANY, (In re: Oliden Angel; and Orlando Sandoval), Petitioner/Movant, vs. TOTAL REHAB AND MEDICAL CENTERS, INC., Respondent. Case No. 07-020243-CACE-03. November 20, 2008. Richard Eade, Judge. Counsel: Frank S. Goldstein and Stephen M. Rosansky, Goldstein Law Group, Fort Lauderdale; for Petitioners/Movants. Kevin Whitehead, for Respondent.

ORDER GRANTING PETITIONER’S VERIFIED PETITION/MOTIONS FOR DISCOVERY PURSUANT TO FLORIDA STATUTE § 627.736(6)(c)

THIS CAUSE having come on to be heard on June 17, 2008 on Petitioner’s Verified Petition/Motion for Discovery Pursuant to Florida Statute §627.736(6)(c) and the Court having considered the record, having heard the argument of counsel and the Court being otherwise fully advised in the premises, it is hereby:

ORDERED AND ADJUDGED that:

1. Petitioners’, ALLSTATE INSURANCE COMPANY; ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY and NORTHBROOK INDEMNITY COMPANY (collectively “ALLSTATE”), Verified Petition/Motions for Discovery Pursuant to Florida Statute §627.736(6)(c) are hereby GRANTED.

THIS COURT FURTHER FINDS that:

FINDINGS OF FACT

2. Bills were submitted by or on behalf of ANN DOAN; JULIO GAVARIA; NILVIA NEGRON; SANDRA ORTIZ; NATALIA PAEZ; DENNY TRAN and CARLOS AMAYA VAQUERANO; OLIDEN ANGEL and ORLANDO SANDOVAL by the Respondent, TOTAL to Petitioner, ALLSTATE.

3. Pursuant to the terms of the subject policy of insurance, §627.736(1)(a), Florida Statutes and the applicable case law, ALLSTATE is required to pay reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.

4. After receiving TOTAL’s bills, ALLSTATE engaged in an additional inquiry by requesting TOTAL to provide information and documentation to authenticate the reasonableness, relatedness and medical necessity of the services allegedly being rendered and billed for.

5. With regard to OLIDEN ANGEL, Petitioner, ALLSTATE, sent requests for additional information pursuant to §627.736(6)(b), Florida Statutes via regular and certified mail on September 21, 2006; October 20, 2006; November 17, 2006; November 30, 2006; December 27, 2006 and February 1, 2007.

6. With regard to ORLANDO SANDOVAL, Petitioner, ALLSTATE, sent requests for additional information pursuant to §627.736(6)(b), Florida Statutes via regular and certified mail on November 7, 2006; November 30, 2006; January 24, 2007; February 21, 2007; February 27, 2007 and April 3, 2007.

7. With regard to ANN DOAN, Petitioner, ALLSTATE, sent requests for additional information pursuant to §627.736(6)(b), Florida Statutes via regular and certified mail on July 10, 2007 and July 30, 2007.

8. With regard to JULIO GAVARIA, Petitioner, ALLSTATE, sent requests for additional information pursuant to §627.736(6)(b), Florida Statutes via regular and certified mail on November 27, 2006; December 27, 2006 and February 7, 2007.

9. With regard to NILVIA NEGRON, Petitioner, ALLSTATE (Northbrook Indemnity Company), sent requests for additional information pursuant to §627.736(6)(b), Florida Statutes via regular and certified mail on June 27, 2007 and July 11, 2007.

10. With regard to SANDRA ORTIZ, Petitioner, ALLSTATE, sent requests for additional information pursuant to §627.736(6)(b), Florida Statutes via regular and certified mail on June 4, 2007 and June 27, 2007.

11. With regard to NATALIA PAEZ, Petitioner, ALLSTATE, sent requests for additional information pursuant to §627.736(6)(b), Florida Statutes via regular and certified mail on June 4, 2007 and June 27, 2007.

12. With regard to DENNY TRAN, Petitioner, ALLSTATE, sent requests for additional information pursuant to §627.736(6)(b), Florida Statutes via regular and certified mail on July 10, 2007 and July 30, 2007.

13. With regard to CARLOS AMAYA VAQUERANO, Petitioner, ALLSTATE, sent requests for additional information pursuant to §627.736(6)(b), Florida Statutes via regular and certified mail on May 21, 2007; June 4, 2007 and August 9, 2007.

14. Each of the foregoing requests for additional information pursuant to §627.736(6)(b), Florida Statutes sought collectively (with respect to each individual claimant and the CPT Codes submitted for reimbursement), the following:

a. The curriculum vitae/resume of any and all persons who administered the services billed for; who interpreted any testing; and/or performed any testing on [Patient Name];

b. Any and all x-ray films, raw data, tracings, films, photos, etc. associated with all services and/or testing rendered to [Patient Name], whether or not charges were submitted to ALLSTATE for same;

c. Any and all medical records, billing records or records of any kind maintained by you in any manner, including electronically, relating to [Patient Name], which must include all typed and handwritten versions of said records where applicable, not previously sent to us;

d. A copy of any sign-in sheets evidencing [Patient Name] presence in your office at any time;

e. A copy of the patient log maintained for [Patient Name], pursuant to Florida Statute Section 627.736(5)(e);

f. A copy of any and all correspondence, bills, collection letters or any documents or information sent to or provided to [Patient Name] by your office;

g. A copy of any correspondence of other information sent to or provided to your office by [Patient Name];

h. Prescription and/or referrals for any treatment, testing, consultation or services for [Patient Name];

i. Any and all information or documentation evidencing what you billed to and accepted from Medicare for CPT Codes [all CPT Codes submitted for reimbursement by TOTAL in each of the above-referenced claims] in calendar years 2005 and 2007;

j. Any and all information or documentation evidencing what you billed to and accepted from Medicaid for CPT Codes [all CPT Codes submitted for reimbursement by TOTAL in each of the above-referenced claims] in calendar years 2005 and 2007;

k. Any and all information or documentation evidencing what you billed to and accepted from Workers Compensation Carriers for CPT Codes [all CPT Codes submitted for reimbursement by TOTAL in each of the above-referenced claims] in calendar years 2005 and 2007;

l. Any and all information or documentation evidencing what you billed to and accepted from No Fault Insurers for CPT Codes [all CPT Codes submitted for reimbursement by TOTAL in each of the above-referenced claims] in calendar years 2005 and 2007;

m. Any and all information or documentation evidencing what you billed to and accepted from Private Health Care Insurers for CPT Codes [all CPT Codes submitted for reimbursement by TOTAL in each of the above-referenced claims] in calendar years 2005 and 2007;

n. Any documentation you have evidencing:

i. Any recommendations by peer reviews, consultants, similar providers or other such personnel, including any handwritten notes memorializing said recommendations;

ii. Any documentation you have evidencing all information utilized by you to determine the Usual Customary and/or Reasonable amounts charged by you for services rendered to [Patient Name];

iii. Any documentation you have evidencing any and all schedules indicating what fee(s) you consider being within the “Usual and Customary” range and/or guidelines.

iv. Any documentation you have evidencing a copy of the medical provider(s) fee schedule for each of the specific services that provider provides and/or which were provided to this patient, and the date your fee schedule was last updated and how it was updated;

v. Any documentation you have evidencing the names, addresses and credentials of all individuals who participated in setting your fee(s) schedule;

vi. Any documentation you have evidencing the methods of determining the fee(s) and assurance(s) used and that they are in harmony with all state insurance laws, UCR guidelines and/or Relative Value Scales (RVU’s);

vii. Any documentation you have evidencing any and all surveys, documents and/or other information relied upon by you in setting your charges for services rendered to [Patient Name];

o. Your office manual on billing procedures;

p. All memos, guidelines and/or instructions to your billing person/department regarding the procedures they must follow when billing; the codes they are to use; and the fees they are to charge;

q. Any and all documents verifying or indicating how much money you paid for the equipment, materials, devices and pads, etc., used to perform any services, testing and/or treatment on [Patient Name];

r. Any and all documents verifying or indicating the lease terms of the equipment, material, devices, and pads, etc., used to perform services, testing and/or treatment on [Patient Name];

s. Your fee schedule(s) in effect for 2005 and 2007;

t. Please set forth your factual and legal basis for billing CPT codes relative to any treatment, testing, services, products or accommodations provided to [Patient Name];

u. Any and all documents evidencing changes in CPT Codes billed for the Initial Office Visits by all personnel and/or doctors used in calendar years 2005 and 2007.

v. Any documents, memos, guidelines evidencing all charges associated with office visit and CPT Codes [all CPT Codes submitted for reimbursement by TOTAL in each of the above-referenced claims] in calendar years 2005 and 2007.

15. After receiving no response to any of the multiple¹ requests for additional information pursuant to §627.736(6)(b), Florida Statutes, with regard to each of the aforementioned patients, Petitioner ALLSTATE received a response from TOTAL on April 10, 2007 (Orlando Sandoval); April 13, 2007 (Oliden Angel); June 7, 2007 (Carlos Amaya Vaquerano); June 22, 2007 (Natalia Paez); June 25, 2007 (Sandra Ortiz); July 18, 2007 (Nilvia Negron); July 23, 2007 (Ann Doan and Denny Tran).²

16. Respondent, TOTAL’s, replies contained documents partially responsive to only six (6) items sought within ALLSTATE’s requests for additional information, and a letter signed by the “Billing Department” indicating that, “Any items that you [ALLSTATE] have requested which are not required by subsection (6)(b) we are not furnishing you with at this time since (1) we are not legally required to do so pursuant to the statute and (2) it is burdensome to our business and causing delay damages. Further we consider this request not only legally insufficient but harassing, and in bad faith.”

17. Respondent, TOTAL, disputed ALLSTATE’s entitlement to its discovery demands. Accordingly, ALLSTATE filed the Verified Petitions for Pre-Suit Discovery pursuant to §627.736(6)(c), Florida Statutes.

18. On October 25, 2007, nearly six (6) weeks post-suit, TOTAL filed (with respect to Ann Doan, Sandra Ortiz, Natalia Paez, Denny Tran, Carlos Amaya Vaquerano, Nilvia Negron and Oliden Angel only) a supplemental response to ALLSTATE’s requests for additional information.

19. ALLSTATE asserts that TOTAL’s supplemental responses to ALLSTATE’s requests for additional information were deficient in three (3) major aspects:

a. TOTAL’s October 25, 2007 supplemental response continues to dispute ALLSTATE’s entitlement under §627.736(6)(b), Florida Statutes to information and documentation which is expressly provided for pursuant to both statute and governing case law; to wit, Request Number 17, “any and all documents verifying or indicating how much money you paid for the equipment, materials, devices and pads, etc., used to perform any services, testing and/or treatment on Oliden Angel”;

b. TOTAL’s October 25, 2007 supplemental response is incomplete and otherwise insufficient with respect to ALLSTATE’s requests for, “Any and all information or documentation evidencing what you [TOTAL] billed to and accepted from No-Fault Insurers for CPT Codes, which varied in each individual claim, reflecting those items submitted for reimbursement by TOTAL in calendar years 2005 through 2007”, failing to provide information and documentation evidencing what TOTAL billed to and accepted from No-Fault Insurers for nearly seventy (70%) percent of the CPT Codes requested by ALLSTATE (which represent those CPT Codes submitted for reimbursement by TOTAL unto ALLSTATE) for the time period surrounding the dates of service at issue;

c. TOTAL’s October 25, 2007 supplemental response is vague and ambiguous as to Request Numbers 2, 6, 15, 16 and 21, stating that the information and documentation requested is “None in Respondent’s Possession.” Such a response is vague and ambiguous as it fails to indicate whether the requested information and documentation does or does not exist, and if it does exist, but is not in TOTAL’s possession, where such information is maintained.

20. ALLSTATE asserts that it is in need of the above information so that ALLSTATE can determine if the alleged medical services were rendered as well as to determine whether the alleged services were reasonable, medically necessary and related to the subject accident under §627.736, Florida Statutes.

21. This Court finds that ALLSTATE has established “good cause” for obtaining this Petition/Motion for Discovery.

CONCLUSION OF LAW

An insurer is bound by both statute and contract with its insureds to pay reasonable and necessary charges for reasonable and necessary services. If an insurer is precluded from obtaining the discovery sought, it will not be able to determine whether the charges and services were reasonable, related or medically necessary. See Generally, MRI Services, Inc. v. State Farm Mutual Automobile Insurance Company, 807 So.2d 783 (Fla. 2d DCA 2002).

The Legislature in 2001, enacted §627.736(6)(b), Florida Statutes which in its present form, provides that:

Every physician, hospital, clinic, or other medical institution providing, before or after bodily injury upon which a claim for personal injury protection insurance benefits is based, any products, services, or accommodations in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested to do so by the insurer against whom the claim has been made, furnish forthwith a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce forthwith, and permit the inspection and copying of his or her or its records regarding such history, condition, treatment, dates, and costs of treatment; provided that this shall not limit the introduction of evidence at trial. Such sworn statement shall read as follows: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” No cause of action for violation of the physician-patient privilege or invasion of the right of privacy shall be permitted against any physician, hospital, clinic, or other medical institution complying with the provisions of this section. The person requesting such records and such sworn statement shall pay all reasonable costs connected therewith. If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. For purposes of this paragraph, the term “receipt” includes, but is not limited to, inspection and copying pursuant to this paragraph. Any insurer that requests documentation or information pertaining to reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code.

Thus, §627.736(6)(b) permits an insurer to request information and documentation relative to a patient’s history, condition and treatment as well as the dates and costs of such treatment. Subsection (6)(b) sets forth the general scope of information and documentation which may be sought, in essence breaking the scope into five (5) areas of inquiry, requiring the provider to furnish a written report³ regarding the patient’s: (1) history; (2) condition; (3) treatment; (4) dates and costs of such treatment of the injured person; and (5) why the items identified by the insurer were reasonable in amount and medically necessary. Discovery is not limited to the items specifically enumerated in §627.736(6)(b). In fact, §627.736(6)(c)⁴, expands upon §627.736(6)(b) and states in pertinent part as follows:

“In the event of any dispute regarding an insurer’s right to discovery of facts under this section, the insurer may petition a court of competent jurisdiction to enter an order permitting such discovery. The order may be made only on motion for good cause shown and upon notice to all persons having an interest, and it shall specify the time, place, manner, conditions, and scope of the discovery. Such court may, in order to protect against annoyance, embarrassment, or oppression, as justice requires, enter an order refusing discovery or specifying conditions of discovery and may order payments of costs and expenses of the proceeding, including reasonable fees for the appearance of attorneys at the proceedings, as justice requires.”

The present statute incorporates the holdings of Kaminester v. State Farm, 775So.2d 981 (Fla. 4th DCA 2000), which held that “the power invoked under §627.736(6)(c) is to discover facts, not just documents” broadening the scope of inquiry and permitting pre-suit discovery unrestricted by 6(b).

The Court in Kaminester first addressed the scope of discovery which a court can order under subsection (c), holding that an insurer’s request is by no means limited to the production of documents specifically identified in subsection (b). Section 627.736(6) provides for informal discovery from the provider to the PIP insurer without resort to litigation. In fact, the Court in Kaminester, noted that the legislature has used the legal term of art “discovery of facts”. § 627.736(6)(c). “The term “discovery” is obviously borrowed from the Florida Rules of Civil Procedure, which describes “discovery” as follows ‘Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission.’ Fla.R.Civ.P. 1.280(a).”

It should also be emphasized that §627.736(6) authorizes discovery of “facts”, not merely discovery of documents. If the legislature wanted to limit discovery to production of documents, it would have used different terminology.

Florida courts are compelled by well-established norms of statutory construction to choose that interpretation of statutes and rules which renders their provisions meaningful. Statutory interpretations that render statutory provisions superfluous are, and should be, disfavored. Florida Courts have consistently held that statutes must be interpreted to not produce an absurd result, and likewise contracts may not be interpreted to create an absurd conclusion. “It is the duty of the trial court in. . . contract actions to prevent fanciful, inconsistent, and absurd interpretations(s) of a contract. Indeed fanciful, inconsistent and absurd interpretations of plain language are always possible. It is the duty of the trial court to prevent such interpretations.” American Medical International Inc. v. Scheller, 462 So.2d 1 (Fla. 4th DCA 1984); Paddock v. Bay Concrete, Inc., 154 So.2d 313 (Fla. 2d DCA 1963). Furthermore, Courts must assume that statutory provisions are intended to have some useful purpose. Courts are not to presume that a given statute employs “useless language.” Johnson v. Feder, 485 So.2d 409 (Fla. 1986). Where possible, the court must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1980). All parts of an act should be read together in an effort to achieve a consistent whole. Marshall v. Hollywood, Inc., 224 So.2d 743 (Fla. 4th DCA 1969). Every statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts. Fleishman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983). The Court’s interpretation of the statutory amendments must effectuate the legislative purpose for their enactment and any construction that impairs, nullifies, or defeats the legislative intent must be avoided. 42 U.S.C. 1395 and the No Fault statute provisions must be construed in harmony with one another. Young v. Progressive Southeastern Ins. Co., 753 So.2d 80 (Fla. 2000).

This Court, however, does not overlook the effect requests for additional information pursuant to §627.736(6)(b), Florida Statutes has upon the accrual of causes of action under Florida’s No-Fault Statute. Specifically, this Court refers to the provisions contained within §627.736(6)(b), which state as follows:

. . . If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. For purposes of this paragraph, the term “receipt” includes, but is not limited to, inspection and copying pursuant to this paragraph. Any insurer that requests documentation or information pertaining to reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code.

In so reading the foregoing provisions it is plain to see that a claim submitted in accordance with the statutory provisions of Florida’s No-Fault Statute shall not be deemed overdue until such time as ten (10) days has passed from the receipt (as defined above) of the information and documentation requested pursuant to §627.736(6)(b), Florida Statutes. Accordingly, lest a health care provider has completely and appropriately complied with its statutory obligations as set forth in §627.736(6)(b), any claims submitted prior thereto shall not be due and owing. As the logical extension of this, a bill which is neither due nor owing cannot be considered overdue, which is a prerequisite for filing both a “Notice of Intent to Initiate Litigation” pursuant to §627.736(11), Florida Statutes and of course a civil cause of action for damages predicated upon non-payment of claims under §627.736, Florida Statutes. As such and to the extent a health care provider has filed suit or put into action a course of events designed to lead to the filing of suit, all such efforts are premature and of no legal effect.

The purpose of §627.736(6)(b), as enunciated in Kaminester, Goldstein and MRI Services is to provide for the discovery of facts which will enable the insurer to properly and timely investigate the claim and ensure swift payment of benefits. Or in other words, to permit the insurer to investigate and resolve claims before there is any need for litigation. This purpose, however, is frustrated when a provider fails to respond, responds incompletely or insufficiently. Failure to reply/properly reply (or object to the requests/file an action for declaratory relief) ties the insurer’s hands. Without the information requested, the insurer has no real choice but to deny the claim and await suit. Thereby defeating the Legislative intent of the No-Fault system which again is to provide swift and virtually automatic payment and to reduce needless litigation. Thus, an insurer can either deny the claim, sit back and await suit or act affirmatively by filing a Verified Petition for Pre-Suit Discovery. To permit that same provide, who thwarts pre-suit discovery, to file suit over the same bills would be unjust.

Accordingly, this Court finds that it is bound by the following appellate decisions: Kaminester v. State Farm Mutual Automobile Insurance Company, 775 So.2d 981 (Fla. 4th DCA 2000); State Farm Mutual Automobile Insurance Company v. Dr. Elias Goldstein, et al., 798 So.2d 807 (Fla. 4th DCA 2001) and MRI Services, Inc. v. State Farm Mutual Automobile Insurance Company, 807 So.2d 783 (Fla. 2d DCA 2002) and that ALLSTATE is entitled to all the discovery (all documents and information) ALLSTATE has requested in their Verified Petition/Motion for Discovery with the exception of those items seeking “any and all information or documentation evidencing what you [TOTAL REHAB] billed to and accepted from” Medicare, Medicaid, Worker’s Compensation and Private Healthcare Insurers as payment for those CPT Codes referenced within ALLSTATE’s requests for additional information. This Court does, however, reserve jurisdiction to address these items at a later date upon further petition.

Accordingly, TOTAL REHAB is hereby ordered to produce for deposition all persons involved in the determination, selection and utilization of the CPT Codes, and charges associated therewith as reflected in the claim forms submitted unto ALLSTATE by TOTAL REHAB for the above-referenced claims.

In addition to the foregoing Plaintiff shall, to the extent not previously provided, produce any and all bills; invoices; claim forms along with any and all information or documentation evidencing what TOTAL REHAB billed to and accepted from any and all Personal Injury Protection Insurers from January 1, 2005 through December 31, 2007. The Petitioner, ALLSTATE, shall bear the cost of such production; however, this Court instructs TOTAL REHAB to conduct its due diligence with respect to this request and to provide ALLSTATE with a written estimate of the cost associated with production of the items requested. Respondent, TOTAL REHAB shall have Forty-Five (45) days from the date of this Order within which to provide ALLSTATE a sworn affidavit setting forth the approximate number of responsive documents and the copying costs associated with the production thereof. Following receipt of TOTAL REHAB’s sworn affidavit, the parties may stipulate to a smaller, representative sample of documents should they choose to do so.

Furthermore, TOTAL REHAB shall, within Forty-Five (45) days of the date of this Order, identify, in writing, all persons involved in the determination, selection and utilization of the CPT Codes, and charges associated therewith as reflected in the claim forms submitted unto ALLSTATE by TOTAL REHAB for the above-referenced claims, and produce those persons for deposition within Sixty (60) days of the date of this Order. In the event that some of these persons qualify as “expert witnesses” pursuant to the Rules of Civil Procedure and case law, TOTAL shall file the necessary motion(s) and this Court shall make a determination whether said person(s) are entitled to an expert witness fee, and if so, the amount.

Finally, this Court reserves jurisdiction to determine TOTAL’s or ALLSTATE’s entitlement to attorney fees and costs pursuant to §627.736(6)(c), Florida Statutes and further reserves jurisdiction to determine the amount of attorney fees and costs.

__________________

¹Oliden Angel (09/21/06; 10/20/06; 11/17/06; 11/30/06; 12/27/06 and 02/01/07); Orlando Sandoval (11/17/06; 11/30/06; 01/24/07; 02/21/07; 02/27/07 and 04/03/07); Ann Doan (07/10/07 and 07/30/07); Julio Gavria (11/27/06; 12/27/06 and 02/07/07); Nilvia Negron (06/27/07 and 07/11/07); Sandra Ortiz (06/04/07 and 06/27/07); Natalia Paez (06/04/07 and 06/27/07); Denny Tran (07/10/07 and 07/30/07) and Carlos Amaya Vaquerano (05/21/07; 06/04/07 and 08/09/07).

²This Court notes that despite multiple requests for additional information pursuant to §627.736(6)(b), Florida Statutes with respect to Julio Gavaria, Total Rehab has not, to date, responded.

³In addition to a written report regarding the foregoing areas of inquiry, the provider must also “produce forthwith, and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment.”

⁴Note that prior to 2003, §627.736(6)(c) read as follows: “In the event of any dispute regarding an insurer’s right to discovery of facts about an injured person’s earnings or about his or her history, condition, or treatment, or the dates and costs of such treatment, the insurer may petition a court of competent jurisdiction to enter an order permitting such discovery. . .”