19 Fla. L. Weekly Supp. 595b
Online Reference: FLWSUPP 1907GARNInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Opposing affidavit — Affidavit of actuary filed in opposition to provider’s motion for partial summary judgment is insufficient to create issue of fact as to reasonableness of medical provider’s charges where actuary merely compiled data to conclude that insurer’s reimbursement at 200% of Medicare fee schedule or 100% of workers’ compensation fee schedule was reasonable
POMPANO BEACH CHIROPRACTIC CENTER, INC. (a/a/o Brian Garner), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 09 002826 (56). April 5, 2012. Linda R. Pratt, Judge. Counsel: Benjamin G. Partlow, Topkin, Egner, Partlow, Rader, P.L., Deerfield Beach, for Plaintiff.
CORRECTED ORDER ON PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT REGARDINGREASONABLENESS, RELATEDNESSAND MEDICAL NECESSITY
THIS CAUSE came before this Court on Plaintiff’s Motion for Partial Summary Judgment regarding reasonableness, relatedness and medical necessity. Upon consideration of the record, it is:
ORDERED AND ADJUDGED that Plaintiff’s motion is GRANTED IN PART and DENIED IN PART as follows:
FINDINGS OF FACT
1. This case arises from the Plaintiff’s claim for unpaid benefits under PIP coverage provided by the Defendant insurance company.
2. Defendant wrote a policy of insurance to Brian Garner, which provided coverage for personal injury protection benefits, and had a policy period of December 3, 2007 through June 3, 2008.
3. Brian Garner was entitled to receive benefits for personal injury protection under Defendant’s policy.
4. The complaint arises from the circumstances surrounding an automobile accident which occurred on March 21, 2008, in which Brian Garner sustained personal injuries.
5. The above insurance contract was in full force and effect on the date of the above accident and provided PIP coverage for medical expenses incurred by Brian Garner for bodily injuries sustained in said accident.
6. As a result of the injuries sustained in the March 21, 2008 accident, Brian Garner went to the Plaintiff for treatment.
7. Brian Garner assigned his right to receive insurance benefits to the Plaintiff.
8. Brian Garner received treatment from the Plaintiff for dates of service March 27, 2008 through August 6, 2008.
9. Plaintiff submitted its bills to Defendant.
10. Defendant reimbursed Plaintiff according to the Medicare or Worker’s Compensation fee schedule pursuant to the 2008 version of Florida Statute 627.736.
11. Plaintiff submitted demand letters to Defendant for the unpaid PIP benefits.
12. After Defendant did not pay any additional benefits in response to Plaintiff’s demand letters, the Plaintiff filed this suit.
13. The Defendant filed its answer, in which it alleged as its only affirmative defense that it paid according to Florida Statute section 627.736(5)(a)(2)(f) and (5)(a)(3).
14. Plaintiff previously filed its motion for partial summary judgment that the Defendant may not utilize the 2008 version of section 627.736 because the insurance policy was written in 2007 and had optional personal injury protection coverage but did not provide for payment at the fee schedule. That motion was granted by the Court.
15. Plaintiff alleges here that its treatment of Brian Garner was related to his March 21, 2008 accident, was medically necessary and that its charges were reasonable.
16. Plaintiff has filed the affidavit of Howard Koenig, DC the treating physician of Brian Garner and Plaintiff’s owner in support of its motion.
17. Defendant filed three affidavits in opposition to Plaintiff’s motion: that of Dr. Brett Weinstein, D.C., Denisha Torres-Lich, MS, RHIA, LHRM and Darrell Spell, FSA, MAAA.SUMMARY JUDGMENT STANDARD
According to Rule 1.510 of the Florida Rules of Civil Procedure, summary judgment is appropriate when there are no genuine issues of material facts that exist and the moving party is entitled to judgment as a matter of law.
If a party moving for summary judgment presents evidence showing undisputed material facts, that party is entitled to summary judgment unless the non-moving party can then produce evidence showing that material facts are at issue. Central Florida Machinery Co., Inc. v. Williams, 424 So. 2d 201 (Fla. 2nd DCA 1983). The bare allegations of the pleadings MAY NOT provide the basis of creating a factual issue. Id. at 202 (emphasis added).
A Defendant may not defeat a motion for summary judgment by raising purely paper issues where the pleadings and evidentiary matters before the trial court show that defenses are without substance in fact or law. Reflex, N.V. v. UMET Trust, 336 So. 2d 473 (Fla. 3rd DCA 1976). It is not sufficient for the opposing party to merely assert that an issue does exist. Harvey Building, Inc. v. Haley, 175 So. 2d 780 (Fla. 1965). After movant demonstrates non-existence of a material issue, the non-moving party must make a showing, aside from his own pleadings, that the fact issue can be generated. Soper v. Stine, 184 So. 2d 892 (Fla. 2nd DCA 1966).
Where the proponent of expert testimony offers such expert testimony, the opponent of such expert testimony, in order to create a factual issue for the trier of fact, must (1) present countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proffered expert opinion. Rose v. Dwin, 736 So. 2d 532 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1083c].AFFIDAVIT OF DENISHA TORRES-LICH
Ms. Torres-Lich, an expert in coding based on the AMA guidelines, provides several opinions in her affidavit. She opines that several CPT codes and dates of service were billed by Plaintiff in violation of the National Corrective Coding Initiative (NCCI) edits and CPT coding guidelines and were therefore not compliant with the required billing rules and were not payable. For purposes of the motion, Plaintiff has conceded that there remains an issue of fact with respect to the particular dates of service and CPT codes about which Ms. Torres-Lich opines, Ms. Torres-Lich does not render an opinion as to the reasonableness of Plaintiff’s charges.
AFFIDAVIT OF DR. BRETT WEINSTEIN
Brett Weinstein, D.C. renders two opinions in his affidavit. Dr. Weinstein opines that no treatment after 5/12/08 would be reasonable or medically necessary as it relates to the accident in question due to the lack of improvement in the patient condition and that multiple billing of CPT codes 97010 and G0283 was not reasonable or medically necessary as it relates to the accident in question because it violates the CPT coding guidelines. For purposes of the motion, Plaintiff has conceded that there remains an issue of fact with respect to Dr. Weinstein’s affidavit and the two opinions he renders. Dr. Weinstein does not render an opinion as to the reasonableness of Plaintiff’s charges.
AFFIDAVIT OF DARRELL SPELL
Mr. Spell, who is a consulting actuary, renders an opinion that the amounts allowed and reimbursed by State Farm were reasonable based on his analysis. Mr. Spell bases this opinion on his review of the reimbursement rates which were provided by Centers for Medicare and Medicaid Services on the Medicare Fee Schedule as well as the Florida Worker’s Compensation fee schedule.
CONCLUSIONS OF LAW
Plaintiff contends that it has met its burden of proof with respect to its treatment and prices. Plaintiff concedes based on the affidavits filed in opposition that there remains an issue of fact as to treatment on some of the dates of service. Further, Plaintiff argues that Defendant has not put forth any evidence to create an issue of fact with respect to the remaining services and treatment about which there was no opinion in the affidavits; and that Defendant’s affidavits do not create an issue of fact with respect to the reasonableness of Plaintiff’s charges.
The Plaintiff relies upon the following case-law for its position that Mr. Spell’s affidavit does not create an issue of fact as to the reasonableness of Plaintiff’s charges: The Personal Injury Clinic (a/a/o Alexis Simon) v. United Auto. Ins. Co., 18 Fla. L. Weekly Supp. 1174a (Cty. Ct. Miami-Dade Cty. Feb. 2011), Physician’s Group, LLC (a/a/o Alicia Buckner) v. Progressive Select Ins. Co., 16 Fla. L. Weekly Supp. 961a (Cty. Ct. Sarasota Cty. Aug. 2009), McGowan Spinal Rehab. Ctr, P.A. (a/a/o Preston Cannon) v. Progressive Exp. Ins. Co., 15 Fla. L. Weekly Supp. 713a (Cty. Ct. Duval Cty. May 2008), Spine & Rehab Medicine, P.A. (a/a/o Rose Gianotti) v. Dairyland Ins. Co., 14 Fla. L. Weekly Supp. 504a (Cty. Ct. Hernando Cty. Mar. 2007), Mitchell R. Pollak, M.D., P.A. (a/a/o Brenton Farr) v. Progressive Exp. Ins. Co., 13 Fla. L. Weekly Supp. 381b (Cty. Ct. Broward Cty. Feb. 2006), and Progressive Auto Pro Ins. Co. v. Doctor’s Pain Mgmt. Assoc. (a/a/o Dalon Finley), 14 Fla. L. Weekly Supp. 1010a (9th Cir. App. July 2007).
The Defendant contends that the three affidavits filed in opposition as well as its policy of insurance create issues of fact which support denial of Plaintiff’s motion. The specific portion of its policy Defendant relies upon is found in amendatory endorsement 6910.3, section 5 b. 1. b. which states:
To determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the provider, reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverage’s, and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply.
This Court agrees with Plaintiff that it has met its burden of proof that all of its treatment was related to the accident and medically necessary and that its charges were reasonable. There is an issue of fact with respect to the relatedness and medical necessity of the dates of service and treatment about which Ms. Torres-Lich and Dr. Weinstein opine.
With respect to the reasonableness of Plaintiff’s charges, this Court agrees that neither the affidavit of Darrell Spell nor Defendant’s policy of insurance alone is enough to create an issue of fact. Mr. Spell is an actuary who estimates medical costs for clients. The basis of Mr. Spell’s opinion is that Plaintiff billed amounts greatly in excess of the Medicare and Worker’s Compensation fee schedules, and State Farm allowed amounts at roughly 200% of Medicare and 100% of the Worker’s Compensation fee schedule and therefore State Farm’s reimbursement was reasonable and Plaintiff’s charges were not. There is no analysis of what is a reasonable charge pursuant to the policy language. Mr. Spell merely compiles data to conclude that State Farm’s reimbursement was reasonable based on the fact that State Farm reimbursed at 200% of Medicare or 100% of Worker’s Compensation.
Therefore, Plaintiff’s motion is granted in part and denied in part. Plaintiff has attached an excel spreadsheet which outlines the specific dates of service and CPT codes which this Court finds to be related and medically necessary and the charges this Court finds to be reasonable. Based upon the spread sheet, partial summary judgment is granted in the amount of $1,953.50.
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