20 Fla. L. Weekly Supp. 482a

Online Reference: FLWSUPP 2005CAFIInsurance — Personal injury protection — Coverage — Medical expenses — National Correct Coding Initiative — Trial court did not err in finding that PIP insurer could not apply NCCI edits to deny payment for two different treatments by medical provider on same patient on same day — No error in failing to consider affidavit of insurer’s expert filed in support of motion for summary judgment where expert was stricken as expert witness and, therefore, was precluded from testifying at trial

STATE FARM FIRE AND CASUALTY COMPANY, Appellant/Defendant, v. CHAMPION CHIROPRACTIC & REHAB, INC. (a/a/o Samantha Cafiero), Appellee/Plaintiff. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE 11-11644 (03), CACE 11-14768 (02) (Consolidated). L.C. Case No. 10-00639 COCE 53. February 12, 2013. Counsel: Cris E. Boyar, Boyar & Freeman, P.A., Margate; and Dean A. Mitchell, Law Offices of Dean A. Mitchell, Ocala, for Plaintiff. Nancy W. Gregoire, Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale; Michael A. Rosenberg, Roig, Tutan, Rosenberg & Zlotnick, Deerfield Beach, for Defendant.

OPINION

(RODRIGUEZ-POWELL, Judge.) THIS CAUSE came before the Court upon Appellant/Defendant STATE FARM FIRE AND CASUALTY COMPANY’S (“State Farm”) appeal from the County Court’s entry of Final Summary Judgment in favor of Appellee/Plaintiff CHAMPION CHIROPRACTIC & REHAB INC. (“Champion”) and entry of Agreed Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fee and Costs, and upon the parties’ respective timely motions for Appellate Attorney’s Fees. Upon consideration of the briefs submitted by the parties and the record, and the parties’ respective motions, and being otherwise fully advised in the premises, the Court finds and decides as follows:Procedural Background

This is a suit for unpaid personal injury protection (PIP) benefits. Insured Samantha Cafiero was injured in a motor vehicle accident on July 7, 2008. Champion provided medical services to the insured for her injuries. The insured assigned Champion her rights and benefits under her State Farm PIP insurance policy. Champion billed State Farm for services rendered to the insured, but State Farm paid only for some of those services. On January 14, 2010, Champion filed its one-count Complaint against State Farm for breach of contract for State Farm’s failure to pay for the medical services and its Amended Complaint on December 8, 2010.

State Farm filed its Answer and Affirmative Defenses on March 18, 2010, and its Answer and Affirmative Defenses to Plaintiff’s Amended Complaint on December 20, 2010. State Farm asserted several affirmative defenses, including noncompliance with condition precedent; set off based on payment for services which may not have been reasonable, related or necessary; payment in accordance with the fee schedule of sections 627.736(5)(a)(2)(f) and 5(a)(3) of the Florida Statutes; unbundling; failure to comply with coding requirements of section 627.736(5)(d); and denial of CPT code 97112 based on NCCI.

On September 22, 2010, Champion filed its Amended Motion for Summary Judgment and Memorandum of Law in Support of Defendant’s [sic] Motion for Summary Judgment. Additionally, Champion filed the Affidavit of Damian Fronzaglia, D.C., the chiropractor who owned Champion and the insured’s treating physician. The motion contended that based on Dr. Fronzaglia’s affidavit, there were no issues of material fact as to the reasonableness, relatedness, and necessity of the insured’s treatment and that it was entitled to judgment as a matter of law. The motion further alleged that State Farm’s affirmative defenses had no basis in the law and that they violated the provisions of section 627.736. The motion addressed the Defendant’s use of NCCI edits to deny payment and the Defendant’s application of payment limitations pursuant to section 627.736(5)(a)(2)(f).

On January 12, 2011, the trial court entered its Order Setting Pretrial Deadlines with Referral to Arbitration (Non-jury trial). Pursuant to the Order, discovery had to be completed no later than 50 days from the date of the Order, or March 2, 2011.

On March 4, 2011, State Farm filed its Cross Motion for Final Summary Judgment as to NCCI and Memorandum of Law in Support of Same in Response to Plaintiff’s Motion for Summary Judgment. The Affidavit of Nicole Bonaparte, CPC, CPC-I, a Certified Professional Coder, was filed in support of the cross motion. State Farm contended that under section 627.736 the court could consider the edits by the National Correct Coding Initiative¹ (“NCCI”) as proof that the CPT codes at issue may not be billed together, and that because they are not payable under Medicare, State Farm is not required to pay for said charges. State Farm additionally filed a Notice of Filing the Affidavit of Michael W. Mathesie, D.C.

On March 7, 2011, State Farm filed its Motion for Leave to Amend Defendant’s Expert Witness List Filed Pursuant to Court Order Setting Pretrial Deadlines with Referral to Arbitration alleging a scrivener’s error. As an exhibit to its motion, State Farm attached its Amended Expert Witness List listing chiropractic expert Dr. Michael W. Mathesie in place of Gene E. Jenkins, D.C. Champion objected to the substitution and moved to strike Dr. Mathesie because the expert had not been disclosed in the timeframe ordered by the trial court. State Farm’s Motion for Leave to Amend was denied by the court on April 1, 2011, as well as State Farm’s subsequent Motion for Rehearing and/or Reconsideration on April 8, 2011.

Pursuant to the trial court’s Order of referral to arbitration dated January 10, 2011, arbitration took place on March 16, 2012 with a ruling in favor of Champion. State Farm filed its Motion for New Trial on March 21, 2011.

On April 15, 2011, a hearing on the motions for summary judgment was held. The Amended Motion for Summary Judgment was heard first. Champion relied on Dr. Fronzaglia’s affidavit on the reasonableness, relatedness, and necessity of the services rendered to the insured. Dr. Fronzaglia’s affidavit averred that his treatment and services were reasonable, related and necessary. The affidavit explained why the CPT codes charged were appropriate, including CPT code 97112, stating that the treatment rendered was separate and apart from any other therapeutic modalities. It also averred that all bills submitted were properly coded and were not unbundled, and that the CMS 1500 forms were properly completed.

Champion objected to the use of Dr. Mathesie’s Affidavit in opposition to Champion’s motion for summary judgment. Dr. Mathesie’s affidavit essentially averred that no treatment was reasonable, related or necessary after October 28, 2008. Champion argued that the court should not consider the affidavit because Dr. Mathesie was excluded as an expert witness to testify at trial, and if he could not testify at trial, his affidavit should not be used for summary judgment purposes. Champion further argued that without Dr. Mathesie’s Affidavit, there was no evidence to challenge the reasonableness, relatedness or necessity of the treatment rendered to the insured. State Farm’s counter argument was that the affidavit should be considered because it created an issue of material fact as to the reasonableness, relatedness and necessity of the treatment rendered.

Champion additionally contended that the policy promised to pay 80% of reasonable expenses and the payment limitations are not adopted in the policy; that the Affidavit of Nicole Bonaparte was incompetent, expressing legal conclusions and relying on unauthorized Medicare limitations; and that the payment limitations amounted to utilization limitations.

The trial court granted Champion’s motion. The court agreed with Champion as to the issue of the fee schedule and that State Farm could not rely on Dr. Mathesie’s Affidavit, because he was precluded from testifying at trial.

As to State Farm’s cross motion for summary judgment on its NCCI defense, State Farm contended that it properly denied payment to Champion because Champion charged for services billed under CPT codes 98941 and 97112 without a modifier, for the same patient on the same day. According to State Farm, this type of billing is prohibited by the NCCI because CPT code 97112, without a modifier, is considered a component of the more comprehensive CPT code 98941. It argued that this constituted unbundling. The Affidavit of Nicole Bonaparte averred that the billing of these codes on the same dates of service was unbundling and that those codes cannot be billed together.

The trial court denied the cross motion because it found that State Farm could not deny payment for lack of a modifier and that State Farm’s use of the NCCI Edits was a limitation on benefits. The court further found that the Affidavit of Nicole Bonaparte did not create an issue of material fact on the NCCI Edits.

On April 21, 2011, the trial court entered Final Judgment in Favor for the Plaintiff for damages totaling $3,694.23, plus prejudgment interest of $344.77. Additionally on May 27, 2011, the court entered Agreed Final Judgment for Costs and Fees awarding Champion $32,300.00 in attorney’s fees, based on the insured fee provision in section 627.428 of the Florida Statutes.

On May 19, 2011, State Farm filed its Notice of Appeal of Final Order. On appeal, State Farm contends that the trial court erred in interpreting Medicare Part B and the PIP Statute. It argues that the PIP Statute incorporates the Medicare Part B and NCCI Edit guidelines and therefore, they can be used to limit the payment to medical providers such as Champion. State Farm further contends that the trial court erred in refusing to consider the Mathesie Affidavit in opposition to Champion’s motion for summary judgment. Lastly, State Farm contends that the Fee Judgment should be reversed because Champion should not have prevailed.

Both parties filed timely motions for appellate attorney’s fees. On November 7, 2011, State Farm filed its Motion for Appellate Attorney’s Fees pursuant to Florida Rule of Appellate Procedure 9.400, section 768.79 of the Florida Statutes, and Florida Rule of Civil Procedure 1.442. On May 7, 2012, Champion filed its Motion for Appellate Attorney’s Fees pursuant to Florida Rule of Appellate Procedure 9.400(b), and sections 627.428(1), 627.736(8), and 59.46 of the Florida Statutes.

REVIEW OF SUMMARY JUDGMENT

The standard of review of a trial court’s ruling on a motion for summary judgment is de novo. Sulkin v. All Fla. Pain Mgt., Inc., 932 So. 2d 485, 486 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1619a]. In determining the propriety of the entry of summary judgment, this Court must resolve whether there is any genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Chhabra v. Morales, 906 So. 2d 1261, 1262 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1808b]; Fla. R. Civ. P. 1.510(c). “Summary judgment should not be granted unless the facts are so clear and undisputed that only questions of law remain.” Sulkin, 932 So. 2d at 486. The reviewing court should consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the nonmoving party and if the slightest doubt exists, summary judgment must be reversed. Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So. 2d 695, 698 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2072b].

The issues in this cause are 1) whether the NCCI Edits are enforceable under the PIP statute and 2) whether the Court erred in excluding the Mathesie Affidavit.

The Court begins its discussion with the NCCI issue. This issue was recently decided by the Fifth District Court of Appeal in the case of SOCC v. State Farm Mut. Auto. Ins. Co., 95 So. 3d 903 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a]. The district court reversed the trial court’s entry of summary judgment in favor of State Farm. The trial court had agreed with State Farm that the NCCI edits can be applied to PIP cases. The district court reviewed section 627.736, with particular attention to subsection (5)(a)4., and stated that

[c]ontrary to State Farm’s claims, th[e] language [of section 627.736(5)(a)4.] does not support a finding that the Legislature intended to incorporate all of Medicare into the PIP statute except those portions set forth in subsection (5)(a)4. Instead, the plain language of subsection (5)(a)4. states that, under PIP, an insurer may not apply any limitation on the number of treatments or utilization limits that would apply to Medicare. This language clearly prohibits an insurance company from treating PIP claims as if they were Medicare claims.

Id. at 910.

The district court, thus, concluded that “the Legislature did not intend to incorporate the NCCI edits into the Florida No-Fault Statute” and “it was error for the county court to find otherwise.” Id. The district court also rejected State Farm’s argument that the Florida No-Fault Statute incorporates the NCCI edits through its reference to the Office of the Inspector General in section 627.736(5)(d).

The holding in SOCC is dispositive of State Farm’s cross motion. Therefore, the denial of State Farm’s cross motion for summary judgment on the NCCI defense was not error. Since the NCCI edits are not a part of the PIP statute, the issues surrounding the affidavit of Nicole Bonaparte are moot.

As to the second issue, the trial court concluded that because Dr. Mathesie was stricken as an expert witness and thus, precluded from testifying at trial, his testimony could not be considered for purposes of summary judgment. “A trial court’s decision to admit or exclude evidence is reviewed by utilizing the abuse of discretion standard of review.” Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So. 2d 753, 754 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1454a]. Thus, the exclusion of affidavits in summary judgment proceedings is likewise reviewed by an abuse of discretion standard. See Pohlman v. Barry, 753 So. 2d 603, 605 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D432a]; James A. Cummings, Inc. v. Larson, 588 So. 2d 1066, 1068 (Fla. 4th DCA 1991). Unless an abuse of discretion can be shown, the trial court’s rulings may not be disturbed on appeal. Id.

State Farm argues that the fact that Dr. Mathesie was precluded from testifying at trial is irrelevant for summary judgment proceedings and that the only requirements for affidavits in support or opposition of a motion for summary judgment are listed under Florida Rule of Civil Procedure 1.510(e), which had allegedly been satisfied. Champion argues that because Dr. Mathesie is not a proper trial witness, he is not competent to testify.

The requirements for affidavits in support or opposition of a motion for summary judgment are listed under Florida Rule of Civil Procedure 1.510(e), which states in relevant part that

[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

(Emphasis added).

The parties have neither provided, nor has the Court found a case on point. However, the Author’s Comment to the Rule regarding affidavits states that the function of an affidavit in summary judgment proceedings “is to show that there is available competent testimony which can be introduced at the trial.” Fla. R. Civ. P. 1.510, Author’s Comment-1967. The trial court had previously denied State Farm’s Motion to Amend Expert Witness List and as a result, at the time the hearing took place, Dr. Mathesie’s testimony was not available. Hence, Dr. Mathesie’s testimony could not be introduced at trial.

Furthermore, State Farm did not comply with the trial court’s Pretrial Order. Its Motion to Amend Expert Witness List in order to add Dr. Mathesie as an expert witness for trial was denied. Nonetheless, State Farm attempted to use Dr. Mathesie’s affidavit at the summary judgment hearing.

The Court finds that the trial court did not abuse its discretion when it declined to consider Dr. Mathesie’s Affidavit. Because the affidavit was properly excluded, no issues of material fact existed and summary judgment was proper.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Final Summary Judgment entered below is hereby AFFIRMED. The ruling on Champion’s Amended Motion for Final Summary Judgment is hereby AFFIRMED. The Agreed Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fee and Costs is likewise AFFIRMED. Lastly, the denial of State Farm’s Cross Motion for Final Summary Judgment as to NCCI is hereby AFFIRMED.

As to the parties’ respective motions for Appellate Attorney’s Fees, State Farm’s Motion for Appellate Attorney’s Fees is hereby DENIED. Champion’s Motion for Appellate Attorney’s Fees is hereby GRANTED, and REMANDED to the trial court to determine the amount.

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¹The National Correct Coding Initiative is a program developed by the Centers for Medicare and Medicaid Services to promote national correct coding methodologies and to control improper coding that leads to inappropriate payment of Medicare Part B claims. SOCC v. State Farm Mutual Automobile Ins. Co., 95 So.3d 903, 905 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D1663a].

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