24 Fla. L. Weekly Supp. 966a

Online Reference: FLWSUPP 2411WIGFInsurance — Personal injury protection — Coverage — Medical expenses — Deductible — PIP statute requires insurer to apply deductible to 100% of reasonable, related and necessary medical expenses — Where reasonableness, relatedness, and necessity of charges incurred following accident that did not result in any visible damage to either school bus in which insured was passenger or truck with which bus collided is in dispute, question of fact exists as to whether charges at issue were applicable to policy deductible as compensable charges and, if so, to what extent

SYNERGY WELLNESS CLINIC, LLC, a/a/o Aesha Wigfall, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Civil Division. Case No. 09-10001 SP 26 (04). March 15, 2013. Lawrence King, Judge. Counsel: Stuart Koenigsberg, for Plaintiff. Jon Sorensen and Thomas L. Hunker, Plantation, for Defendant.

ORDER DENYING THE PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT

THIS CAUSE having come before the Court on February 19, 2013 on the Plaintiff’s Motion for Summary Judgment and the Court having reviewed the pleadings, having heard argument of counsel and being otherwise advised of the premises, the Court makes the following findings:

Findings of Fact:

1. On April 17, 2009, Aesha Wigfall was involved in an automobile accident when the school bus she was a passenger in came into contact with a parked truck owned by Paulino Alvarez.

2. At the time of the above referenced auto accident Aesha Wigfall was covered under an automobile insurance policy issued by United Automobile Insurance Company which provided no-fault coverage in the amount of $10,000.00.

3. The above referenced policy was subject to a policy deductible of $1,000.00.

4. As a result of the subject automobile accident, Ms. Wigfall claimed to have been injured and received treatment from the Plaintiff, Synergy Wellness Clinic, LLC.

5. Synergy Wellness Clinic submitted medical bills to United Automobile Insurance Company for dates of service April 23, 2009 through July 3, 2009 for $7,130.00.

6. Upon review of the medical bills submitted, United Automobile Insurance Company determined that $3,053.46 of the submitted bills were compensable under the subject insurance policy.

7. United Automobile Insurance Company applied the $1,000.00 deductible to the compensable bills resulting in a payment of $1,642.77, which is 80% of the amount allowed after application of the policy deductible.

8. The Plaintiff has now filed suit to collect the balance of the bills submitted; in its Answer, the Defendant has denied that the bills at issue are reasonable, related and medically necessary.

Findings of Law:

1) Relation and Medical Necessity

In order for the bills at issue to be payable under the policy at issue they must be reasonable in amount, related to the automobile accident in question and medically necessary. See Derius v. Allstate Indem. Co., 723 So.2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. In support of its motion the Plaintiff has filed the affidavit of Dr. Gustavo Marshall D.C. the treating physician. Dr. Marshall conducted an evaluation of Aesha Wigfall, took a history of the injuries complained of, including a history of the automobile accident in question, made a diagnosis of cervical, thoracic and shoulder sprain with muscle spasm and prescribed physical therapy which was rendered from April 17, 2009 through July 3, 2009. This Court finds the affidavit of Dr. Marshall sufficient to establish a prima facie showing that the bills at issue are reasonable, related and medically necessary. In opposition to the Plaintiff’s motion, the Defendant has filed the deposition testimony of Dr. Michael Weinreb, D.C., the Defendant’s expert, who conducted an independent medical examination of Aesha Wigfall on June 9, 2009. Based on his examination, Dr. Weinreb concluded that Aesha Wigfall had reached a point of maximum medical improvement and that any further treatment or diagnostic testing would not be reasonable, related or medically necessary. Dr. Weinreb also performed a peer review on July 22, 2009. Based on his peer review Dr. Weinreb reiterated that any treatment or diagnostic testing after June 9, 2009 would be considered not reasonable, related or necessary. Dr. Weinreb also opined that attended electric muscle stimulation billed under CPT code 97032 was not necessary. The plaintiff submits that summary judgment should be granted in their favor as to all treatment prior to June 9, 2009. However, the Defendant has also filed deposition testimony from lay witnesses as well as vehicle photos creating a question as to the severity of the accident. The Defendant has filed the deposition of Paulino Alvarez the owner of the truck stating that his vehicle sustained no damage in the accident, the deposition of Betty Wyche, the bus driver who described the accident as a tap, the deposition of Yva Laplant, data input specialist with the Miami Dade County Department of Transportation who testified that the school bus damage appraisal was blank because there was no damage to the school bus involved and color photos of the school bus taken at the scene of the accident itself depicting no visible damage to the school bus. Photographs and testimony relating to the force of impact of the vehicles involved is relevant evidence as to the extent of injuries sustained as well as the need for medical treatment. See Schmidt v. Van, 65 So. 3d 1105 (Fla. 1st DCA 2011) [36 Fla. L. Weekly D1425a], Allstate Ins. Co. v. Kidwell 746 So.2d 1129 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2338a], Traud v. Waller, 272 So.2d 19 (Fla. 3d DCA 1973) and Schoeppl v. Okolowitz, 133 So.2d 124 (Fla. 3d DCA 1961). A jury may reject the testimony of both plaintiff’s and defendant’s medical experts if there exists other evidence in the record which would support a conclusion that the injuries were not caused by the accident in question. See Schmidt v. Van, 65 So. 3d 1105 (Fla. 1st DCA 2011) [36 Fla. L. Weekly D1425a]. The Plaintiff also submits that the Defendant has waived its right to dispute relation and medical necessity since it has issued payment for the services at issue and made reference to that payment in its answers to interrogatories. However, pursuant to 627.736(4)(b)(6), Florida Statutes, the defendant may dispute reasonableness, relation and medical necessity at any time, even after payment has been issued. Accordingly, this Court finds that a genuine issue of material fact exists as to relation and medical necessity which must be resolved by the finder of fact.

2) Reasonableness of the charges

It is the Plaintiff’s position that United Automobile cannot contest the “reasonableness” of the subject bills because it has utilized Medicare fee schedules, along with other factors, to determine the “reasonableness” of the charges. In support of its position, the Plaintiff cites Kingsway Amigo Ins. Co. v. Ocean Health, Inc. 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a] and Geico Indem. Co. Virtual Imaging Services, Inc. 79 So.3d 55(Fla. 3d DCA 2011) [38 Fla. L. Weekly S517a]. The Plaintiff’s reliance on these cases is misplaced. In both these cases, the insurance carrier stipulated that it would not contest the reasonableness of the charges. Thus, the only question left to be decided by the court was whether a carrier could pay pursuant to Florida Statute 627.736(5)(a)(2) without including said provision in its policy of insurance. Accordingly, if permitted, the payment would relieve the necessity of addressing the “reasonableness” of the charges. Both Courts found that in order to avail itself of the subject statutory provision as a matter of law, a carrier must elect and identify, in its policy of insurance, its intention to reimburse providers in accordance with Florida Statute 627.736(5)(a)(2).

United Auto concedes that it does not contain the above statutory provision in its policy of insurance and thus, in accordance with the above cases, it cannot avail itself of the provision and pay pursuant to 627.736(5)(a)(2); However, United argues that it can travel under 627.736(5)(a)(1) to determine whether the amount charged by the Plaintiff is a “reasonable” charge. In its assessment, as reflected in the affidavit of Monica Johnson filed by United Auto in opposition to the Plaintiff’s Motion for Summary Judgment, the charges submitted by the Plaintiff were not reasonable and were reduced to a “reasonable” charge before being applied to the deductible. In support of its position, United Auto relies on State Farm v. Sestile, 821 So. 2d 1244 (2nd DCA 2002) [27 Fla. L. Weekly D1757a]. In Sestile, State Farm relied on a computer based program to arrive at a “reasonable” charge. The Second District Court of Appeals determined that “reasonableness” of a charge was to be left to the fact-finder. “In some cases, a computer database may accurately assess the reasonableness of a medical provider’s bill, in other cases, it may be far from the mark but that is the insured’s burden to prove.” Id. at 1244. It is United Auto’s position that any determination as to the “reasonableness” of the charges involved in the case sub judice must be left to the fact-finder to resolve. This position is further supported by the case of All Family Clinic of Daytona Beach v. State Farm, 280 F.R.D. 688 (2012). AFC brought a complaint seeking damages and declaratory relief under Rule 23 alleging that the class consisted of providers whose bills for MRI services rendered to State Farm insureds were reduced or not paid based on OPPS. The court analyzed that in order to fulfill the requirements of Rule 23, the Plaintiff was required to establish the necessary elements of “numerosity, commonality, typicality and adequacy of representation.” “The dispositive question presented by the Motion at issue was whether State Farm’s improper use of the OPPS cap to discount MRI claims satisfied the “predominance” requirement of Rule 23(b). Where, after adjudication of the class-wide issues, the plaintiff must still introduce a substantial amount of individualized proof to establish most or all of the elements of its individual claim, the class is not suitable for certification under Rule 23(b)(3). Vega v. T-Mobile, USA. Inc., 564 F.3d 1256, 1270 (11th Cir. 2009) [21 Fla. L. Weekly Fed. C1706a].” AFC had argued that common class questions predominated because the correct resolution of the case only required “a simple mathematical calculation of subtracting the amount the class should have been paid under the [PPFS] from the amount the class was paid by State Farm.” However, State Farm disagreed with AFC’s claim that a simple substitution of the PPFS formula for the OPPS cap was warranted across the putative class. Relying upon its contract with AFC and Florida law, State Farm insisted that it could reevaluate each charge for reasonableness, thus requiring AFC to produce a substantial amount of individualized proof to demonstrate that each disputed charge should be reimbursed in whole or in part. AFC argued that because State Farm had elected to reimburse AFC according to a fee schedule-based formula, it could no longer consider the reasonableness of each charge. As in the case sub judice, AFC argued Kingsway committed State Farm to a fee-schedule assessment that now prevented it from arguing the “reasonableness” of the price. The Court found that despite State Farm’s initial election to reimburse according to a fee schedule amount, relying on an unauthorized schedule, its policy required that it reimburse AFC at eighty percent of “reasonable expenses”. Accordingly, the testimony of State Farm’s expert opining that the OPPS amount was a reasonable price was sufficient to create an issue of fact as to reasonableness for each individual claim; thus, failing to meet the “commonality” element necessary for class certification. In the present case, United Automobile clearly disputes the amount billed is a “reasonable amount”. The affidavit of Monica Johnson opines that the amount billed is not “reasonable” and further provides amounts which, based on the criteria set forth in 627.736(5)(a)(1) are reasonable. This Court cannot disregard said testimony and cannot weigh it against that submitted by the Plaintiff. Accordingly, the issue of “reasonableness” must be left to a fact-finder’s determination.

3) Application of the Policy Deductible

It is the Plaintiff’s position that the deductible must be applied to the medical bills regardless of whether they are compensable or not. Thus, the question presented requires the court to interpret the Florida Motor Vehicle No Fault Act codified at sections 627.730-627.7405, Florida Statutes. Legislative intent, as always, is the polestar that guides a court’s inquiry under the Florida No-Fault Law. United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001) [26 Fla. L. Weekly S747a]. “Where the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law.” Id. “It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992). “Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Id. “[C]ourts are admonished not to read statutory language in isolation. It must be taken in context, so that its meaning may be illuminated in the light of the statutory scheme of which it is a part.” O’Hara v. State, 964 So. 2d 839, 843 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2214a] (following a statutory cross-reference and reading § 893.135, Florida Statutes, in light of § 893.13).

In this case, the two provisions at issue are sections 627.739(2) and 627.736. Section 627.739(2) states:

(2) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1). However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).

§ 627.739, Fla. Stat. (2010) (emphasis added). Plaintiff interprets this language to mean that the deductible applies to 100% of whatever amount it chooses to bill. However, that is not what the statute says. The plain language of the statute says that a PIP deductible applies to “100% of the expenses and losses described in s. 627.736.” Id. (emphasis added). Therefore, the court must follow the cross-reference and examine the language of section 627.736 in order to determine what expenses and losses are “described in s. 627.736.” Id.; see O’Hara, 964 So. 2d at 843. Indeed, the Preface to the Florida Statutes provides that “a cross-reference to a specific statute incorporates the language of the referenced statute as it existed at the time the reference was enacted.” Preface at VIII, Fla. Stat. (2008); see Van Pelt v. Hilliard, 75 Fla. 792, 808-09, 78 So. 693, 698 (1918). As the Florida Supreme Court explains, “[i]t is proper for statute to adopt all or a part of another statute by specific and descriptive reference thereto.” Overstreet v. Blum, 227 So. 2d 197, 198 (Fla. 1969) (emphasis added). “A statute may adopt a part or all of another statute by specific and descriptive reference thereto, and the effect is the same as if the statute or the part thereof adopted had been written into the adopted statute.” Hecht v. Shaw, 112 Fla. 762, 765, 151 So. 333, 333 (1933); 48A Fla. Jur. 2d Statutes § 12; see e.g., O’Hara v. State, 964 So. 2d 839, 843 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2214a] (following a statutory cross-reference and reading § 893.135, Florida Statutes, in light of § 893.13); see also Golf Channel v. Jenkins, 752 So. 2d 561, 564 (Fla. 2000) [25 Fla. L. Weekly S31a] (“We have also stated that related statutory provisions should be read together to determine legislative intent, so that ‘if from a view of the whole law, or from other laws in pari materia the evident intent is different from the literal import of the terms employed to express it in a particular part of the law, that intent should prevail, for that, in fact is the will of the Legislature.’ ”) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 454 (Fla. 1992); Van Pelt, 75 Fla. at 799, 78 So. at 695). Florida Statute 627.736 has repeatedly been interpreted by Florida Courts to require the payment of medical services that are determined to be medically necessary, reasonable in amount charged and related to an automobile accident. See Derius v. Allstate Indem. Co., 723 So.2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a] finding that “[A]n insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or if the service is not necessary.” Reading sections 627.736 and 627.739(2) together leads to the inescapable conclusion that a PIP deductible applies to 100 percent of the reasonable and necessary medical expenses.

Plaintiff’s interpretation is not supported by the language of section 627.739(2) because it ignores the words “described in s. 627.736.” According to the Oxford English Dictionary, the word “describe” means to “give an account in words of (someone or something), including all the relevant characteristics, qualities, or events.” Oxford English Dictionary (2012 ed.) (emphasis added). Section 627.736 describes the required medical benefits as including only “reasonable” charges for “necessary” treatment. Thus, under the plain language of the statutes (and the case law interpreting these statutes), the deductible applies to 100% of the “reasonable” and “necessary” medical expenses. This result is consistent with case law which holds that a deductible should only be applied to expenses which are deemed compensable. See General Star Indemnity Co. v. West Florida Village Inn, Inc., 874 So. 2d 26, 33-34 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b] (“The notion that a deductible could be applied to loss that is not covered by the policy is fundamentally unreasonable. . . .”); United Auto. Ins. Co. v. Florida Orthopaedic Center, a/a/o Alexis Gonzalez, 16 Fla. L. Weekly Supp. 402a (Fla. 17th Circuit Appellate 2009), cert. denied No. 4D09-3002 (Fla. 4th DCA 2009) (holding that the deductible did not apply to bills which were denied as noncompensable); cf. Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3, 6 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a] (holding that the “English Rule” of priority is “first come-first served, for medical providers as long as their PIP claim is deemed to be compensable.”) (emphasis added). This position is further supported by the 11th Judicial Circuit, acting in its appellate capacity, in the matter of Rivero Diagnostic Center a/a/o Yolanda Pacho v. Mercury Insurance Company, 19 Fla. L. Weekly Supp. 1005b (11th Jud. Cir. 2012). Rivero Diagnostics appealed the county court’s entry of summary judgment in favor of Mercury Ins. Mercury had argued to the lower court that Rivero’s bill fell within the applicable $1,000.00 deductible elected by its insured. However, the Rivero bill was not the first bill received by Mercury. Rivero argued that the bills received prior to its bill should have been applied to the deductible. The Circuit Court reversed the lower court’s judgment to the extent that a determination had not yet been made as to whether the earlier bills were compensable. The Court opined that “there is a genuine issue of material fact as to whether two bills received by Mercury from another medical provider, prior to the receipt of River’s bill, were compensable. If the other bills were compensable, then the deductible should have been applied to them and Rivero’s bill should have been paid.” In other words, the deductible was not to be applied until such time as a determination was made as to whether the bills received were compensable. In order for a medical service to be “compensable” under Florida Statute 627.736, it must be medically necessary, reasonable in amount and related to an automobile accident. In the case sub judice, the reasonableness, relation and medical necessity of the services at issue is in dispute. As such there is a question of fact as to whether the charges at issue are applicable to the policy deductible as compensable charges and if so, to what extent.CONCLUSION

In accordance with the foregoing, it is therefore ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is DENIED.