24 Fla. L. Weekly Supp. 881a
Online Reference: FLWSUPP 2410JPARInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — With two exceptions, factual issues exist as to whether certain treatments were related to accident and medically necessary — Insured failed to demonstrate by competent evidence that disputed issue of material fact existed as to reasonableness of price — Provider’s motion for summary judgment granted in part and denied in part
XTREME CHIROPRACTIC & REHAB, INC. (a/a/o Jeena Park), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-5544 COCE (53). February 27, 2014. Robert W. Lee, Judge. Counsel: J.D. Underwood, Dania Beach, for Plaintiff. Frantz C. Nelson, Hollywood, for Defendant.
[Editor’s note: Final Judgment in this case affirmed at 23 Fla. L. Weekly 822c (State Farm Mutual Automobile Ins. Co. v. XTREME Chiropractic & Rehab, Inc., Case No. CACE-14-007099 (AP), 1-14-2016)
ORDER GRANTING IN PART AND DENYINGIN PART PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on February 24, 2014 for hearing of the Plaintiff’s Motion for Partial Summary Judgment, and the Court’s 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:
At the hearing, the parties agreed that the only issues remaining in this case are whether the treatment rendered to Jeena Park was reasonable, related to the accident, and medically necessary. At the hearing, the Court took the matter of medical necessity under advisement. The Defendant has timely submitted the affidavit of Bradley Simon, D.C. in an effort to contravene the Plaintiff’s prima facie case set forth in the Plaintiff’s filed supporting affidavit and related medical records. After careful, detailed review of Dr. Simon’s affidavit, the Court finds that the Defendant, for reasons set forth hereinafter, has raised disputed issues of material fact as to the relatedness and medical necessity of all treatment other than the initial chiropractic examination and two modalities of treatment on the initial examination date. The Court further finds that the Defendant has failed to raise a disputed issue of material fact as to the reasonableness of any of the Plaintiff’s charges.
On June 24, 2009, the claimant Jeena Park presented to Dr. Robert Gordon as the result of a motor vehicle accident occurring on June 22, 2009. Dr. Gordon examined the claimant and initiated a course of treatment that on the first date of treatment included chiropractic manipulation (98940), electrical muscle stimulation (G0283), and hot packs (97010).
Dr. Simon concluded, on behalf of State Farm, that the chiropractic treatment was “excessive and redundant and not [. . .] related or medically necessary” (paragraph 10). In paragraph 11, Dr. Simon concluded that after Dr. Gordon’s examination, the “claimant should have been referred for home care and released.” In paragraph 12, Dr. Simon took issue with the use of both ultrasound (97035) and hot packs (097010) on the same day, concluding that there was no medically necessity for ultrasound treatment when hot packs were administered. To support his opinion that the claimant should have been released to home care, Dr. Simon notes that at best, the “injuries and complaints [. . .] were minimal and appear to be nothing more than grade 1 sprain/strain” (paragraph 11). He further notes that the MRI films were referred out to an independent radiologic examiner, who “found the scan completely normal” (paragraph 15). As a result, the Court finds that there is a disputed issue of material fact as to the relatedness and necessity of all treatment other than the initial chiropractic examination, initial electrical muscle stimulation treatment (G0283) and initial hot pack treatment (97010).
However, on the issue of reasonableness of price, the Court finds that the Defendant has produced no competent evidence that would be “admissible in evidence” to raise a disputed issue of material fact. Rule 1.510(e), Fla. R. Civ. P. The Court notes that the Defendant produced the affidavit of its claims adjuster, Leslie Leary, who in turn relies on the actuary Darrell Spell. In addition, the Defendant has produced the affidavits of Darrell Spell and Dr. Bradley Simon. This Court has previously reviewed and rejected Mr. Spell’s similar affidavit filed in several other cases. See DPI of North Broward v. State Farm Mutual Automobile Ins. Co., Order on Daubert Hearing, Case No. 12-5576 COCE 53 (Feb. 19, 2014); Coastal Wellness Centers, Inc. v. State Farm Mutual Automobile Ins. Co., Order on Defendant’s Motion for Daubert Hearing, Case No. 12-1428 COCE 53 (Jan. 29, 2014); Pro Imaging, Inc. vs. State Farm Mutual Automobile Ins. Co., Order on Defendant’s Motion for Daubert Hearing, Case No. 12-1850 COCE 53 (Jan. 15, 2014) [21 Fla. L. Weekly Supp. 590a].
As for the pricing affidavit of Dr. Simon, he agrees that the “reimbursement rates paid by a PIP insurer almost without fail exceeds the amount that is paid by general health insurers” (paragraph 22), and further “Workers Compensation insurers generally reimburse at a rate that is substantially less than PIP insurers” (paragraph 17). He attempts to support his opinion that the prices billed by the Plaintiff in this case are not reasonable because “during the last 4-5 years nearly all PIP insurers [. . .] reimburse [Dr. Simon’s] medical services at a rate that comports to 200% of the Medicare Part B fee schedule for the year in which the services was rendered” (paragraph 12). He further states that “State Farm’s allowable charges [. . .] coincide directly with the reimbursement rates provided by nearly all PIP insurers in the community” (paragraph 28), and “[a]s such, State Farm’s reimbursement rate [. . .] comports to the market reimbursement rate for the treatment of PIP insureds” (paragraph 29). Because of this, Dr. Simon concludes that “said reimbursement rate is viewed as the maximum service charge that can be deemed reasonable in the community” (paragraph 30). In other words, charges at more than 200% of the Medicare rate would not be reasonable.
The Court finds that Dr. Simon’s proffered opinion on reasonableness fails to establish a disputed issue of material fact for several reasons. First, Dr. Simon’s opinions on reasonableness would not be admissible at trial. Rule 1.510(e). The proffered opinion is not based upon sufficient facts or data, nor is it demonstrated to be the product of reliable principles and methods. To the contrary, the opinions proffered are clearly misleading. Second, the underpinning of Dr. Simon’s opinion — that 200% of Medicare is the cap of reasonableness — flies directly in the face of the Florida Supreme Court’s opinion that a PIP insurer must clearly and unambiguously elect in its policy which methodology of payment it will use. GEICO General Ins. Co. v. Virtual Imaging Services, Inc., 2013 WL 3332385, *11 (Fla. 2013) [38 Fla. L. Weekly S517a]. If the 200% of Medicare calculation were automatically the maximum rate that could be charged, it would have made little sense for the PIP insurance industry to vigorously fight the battle that culminated in the Florida Supreme Court decision. Moreover, the fact that PIP insurers for years mistakenly reimbursed at 200% of Medicare does not lead to the conclusion that these rates constitute the cap of reasonableness, even though many medical providers may have accepted the reimbursement without dispute. Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED IN PART and DENIED IN PART. The only remaining issue in this case for trial is the medical necessity of treatment occurring after June 24, 2009. Any treatment found medically necessary must be paid at the rate billed by Plaintiff.
