21 Fla. L. Weekly Supp. 712a
Online Reference: FLWSUPP 2107RAMIInsurance — Personal injury protection — Summary disposition — Reasonableness of charges — Medical provider met burden of proving its charges were within range of what is reasonable for CPT codes at issue — Opposing affidavit of claims representative who was not expert and excluded consideration of any amount above 200% of Medicare or 100% of workers’ compensation fee schedules was insufficient to create triable issue — Summary disposition is granted in favor of provider
RON WECHSEL, D.C., INC., as assignee of Elizabeth Ramirez, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-009005 CONO 73. April 14, 2014. Steven DeLuca, Judge. Counsel: Cris Evan Boyer, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. David Bender, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY DISPOSITION
THIS CAUSE came before the Court on April 14, 2014, for hearing on the Plaintiff’s Motion for Summary Disposition, and the Court having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
The Plaintiff, a medical provider, filed suit because the Defendant did not pay 80% of the billed amount for its services. The Defendant’s policy of insurance required the Defendant to pay 80% of all reasonable expenses (See the affidavit of Brian Lobello). The Plaintiff charged $9,500 for its service. The Defendant paid the Plaintiff $5,357.94. The amount in controversy is $2,242.06 which is the difference between the billed amount and paid amount at 80%.
The Defendant agreed medical necessity and related is not an issue. Thus, the only remaining issue for this court is whether the Plaintiff’s charges were “reasonable” as to price. It is axiomatic that “reasonable” is a range and not a set number. It is undisputed the Defendant did not elect to pay the Plaintiff’s medical bills based on §627.736(5)(a)(2). The Defendant did not plead §627.736(5)(a)(2) as an affirmative defense. Thus, the triable issue is whether the Plaintiff’s charges for the CPT codes at issue is within the range of what is reasonable.
In support of its Motion for Summary Disposition, Plaintiff submitted, and timely filed, the affidavit of Dr. Ron Wechsel. Ron Wechsel was the treating doctor, he is familiar with what other doctors in the community charge for the same CPT codes as he has spoken to other doctors and he has seen the bills from many other doctors that were named with specificity in his affidavit and those other doctors charge about the same as the Plaintiff. He is also familiar with what other car insurers allow for the CPT codes at issue as he has billed them and he knows what they allow. He has also used a publication called Medical Fees by PMIC and the Plaintiff charges are within the range of what is reasonable according to this publication. The Defendant did not file any evidence establishing the billed amount is outside the range of other doctors charge for the same services or that PIP insurers did not pay the Plaintiff’s bills.
The Court finds the Plaintiff’s affidavits satisfy Plaintiff’s burden to prove its charges are within the range of what is reasonable for the CPT codes at issue. See United Automobile Insurance Company v. Hallandale Open MRI, LLC (Antonette Williams), Case No. 12-19662CACE (17th Cir. App December 11, 2013) [21 Fla. L. Weekly Supp. 399d] and Reliance Insurance Company v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c].
The Court further finds the Defendant is not permitted to pay Plaintiff’s bill based on 200% of Medicare or 100% of Workers Compensation as a matter of law because the Defendant did not plead it, did not argue it was entitled to pay in this manner as a matter of law, and did not make this clear election in its policy of insurance. See GEICO v. Virtual Imaging, 38 Fla. L. Weekly S517a (Fla. 2013) and the affidavit of Brian Lobello.
In opposition, Defendant relies exclusively upon the affidavit of Brian Lobello served on 4/10/14. Mr. Lobello is the Defendant’s claim representative. Plaintiff argues the Defendant’s affidavit failed to establish a trial issue. This Court agrees with the Plaintiff.
Once a party moving for Summary Disposition presents competent evidence to support its motion for Summary Disposition, that party is entitled to Summary Disposition unless the non-moving party can come forward with competent evidence sufficient to reveal a triable issue.
Pursuant to Fla. Stat. §627.736(5)(a)(1), in determining a reasonable charge, “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.” Here, Defendant has failed to present competent, admissible evidence to rebut Plaintiff’s prima facie showing that their charge was, in fact, reasonable as reasonable is a range and not a set number.
Mr. Lobello was not tendered as an expert by the Defendant at the hearing and, if he was tendered as an expert, the court finds he is not competent to be an expert witness according to Fla. Stat. §90.702(1)(2013) as his opinions are not based upon sufficient facts or data. Thus, he must be considered as a lay witness with regard to “reasonableness.”
In his affidavit, Mr. Lobello completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, he excludes consideration of any amounts above 200% of Medicare or 100% of Workers Compensation in reaching his ultimate conclusion that an amount equal to 200% of Medicare or 100% of Workers Compensation is a reasonable charge. In essence, Mr. Lobello’s ultimate opinion excludes any data which could cause an increase in the outcome.
It is clear to this court the Plaintiff’s charge is within the range of what most MRI Providers charge for this CPT Code. Mr. Lobello’s affidavit was insufficient to create a triable issue.
Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1991) citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985). See also United Automobile Insurance Company v. Miami Neurology Rehabilitation Specialists A/a/o Maria Broche, 19 Fla. L. Weekly Supp. 799a (11th Cir. App. June 19, 2012)(Testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). Thus, as a matter of law, the opinions offered by Mr. Lobello are not rationally based on his own perception and are not the type of lay opinions which can be relied upon by the Defendant. In addition, conclusory and self serving statements are not adequate to create a triable issue and are insufficient to avoid Summary Disposition.
Further, it is undisputed that Medicare is not insurance. The fact that Medicare, Workers Compensation, health insurance, etc. pay less than the billed amount does not mean the Plaintiff’s charge is unreasonable without any additional evidence. This would require the improper stacking of inferences as Medicare and Workers Compensation pays what the government sets forth without any regard to what is a reasonable amount for a particular service. Health insurers such as HMO and PPOs pay less but they provide the doctors with a flow of business, guaranteed payment and very low risk. Therefore, the fact an HMO or PPO pays less does not mean the Plaintiff’s charge is unreasonable and has no probative value. The Defendant simply fails to explain or justify why 200% of Medicare or 100% of workers compensation, without any more evidence, is sufficient to create a triable issue where the Defendant did not make this clear and express election in its policy of insurance.
It is well settled that in order to take advantage of the more limited reimbursement provided by Fla. Stat. §627.736(5)(a)(2)(f), the insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d __ So. 3d __, 2013 WL 3332385 (Fla. 2013); DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Defendant is not permitted to use the “200% Medicare” as the exclusive methodology to limit reimbursement unless it can demonstrate that amount is the maximum reasonable amount under some alternative means. Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55, 57 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a](“Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount.”). For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating the Plaintiff’s charge is unreasonable which would create a triable issue.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Disposition is GRANTED.
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