25 Fla. L. Weekly Supp. 292a
Online Reference: FLWSUPP 2503ESPIInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issues of reasonableness of charges and relatedness and medical necessity of treatment where affidavit does not demonstrate relevance, is not based on sufficient data and personal knowledge, is based on conjecture and speculation, and raises issues not preserved through affirmative defenses
FLORIDA WELLNESS & REHABILITATION CENTER, INC. a/a/o Margarita Espinosa, Plaintiff, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-011298 COSO 61. March 10, 2017. Arlene S. Backman, Judge. Counsel: Matthew C. Barber, Landau & Associates, P.A., for Plaintiff. Mark Rose, Roig Lawyers, for Defendant.
[Editor’s note: Appeal dismissed.]
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT/DISPOSITION AS TO THEMEDICAL TREATMENT BEING REASONABLE,RELATED AND NECESSARY
THIS CAUSE having come on to be heard on Plaintiff’s Motion for Summary Judgment/Disposition, the Court having been otherwise fully advised in the premises and by review of the Record, including, without limitation, transcripts, authorities and argument on March 7, 2017, it is hereby,
ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Summary Judgment/Disposition is GRANTED.
2. The claimant was involved in an auto accident on June 1, 2009 at which time she was covered by a State Farm insurance policy which including PIP. The claimant went to the hospital and received care from other providers before continuing care with Plaintiff from October 29, 2009 thru November 23, 2009. There is no dispute that the claimant was injured in the accident. There is no dispute with coverage, and the bills submitted by Plaintiff were adjusted by Defendant and partially paid.
3. The Court finds that Plaintiff met its prima facie burden of proof based on the affidavit of Dr. Frankl, who is a chiropractic physician and competent expert, as well as the affidavit of Franz Schiebel, who is the billing representative and records custodian for Plaintiff. The billing affidavit is based on personal knowledge (including that Plaintiff does not accept Medicare, Medicaid, HMO, PPOs, etc.) and includes the medical records and CMS-1500 forms (i.e. bills), thus establishing the usual and customary charges and reasonableness. The doctor affidavit is based on a review of records, personal knowledge, expertise, experience (including practicing and maintaining a clinic in Miami-Dade), and education, and constitutes a reliable method to opine that the services are reasonable, related and necessary. See State Farm v. Pembroke Pines a/a/o Elias Cruz, 171 So.3d 814 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1879a]; and, State Farm v. Florida Wellness a/a/o Luis Alonso, 23 Fla. L. Weekly Supp. 88a (17th Cir. Ct. App. 2015). The burden shifted to Defendant to show a genuine issue of material fact and/or a triable issue of fact.
4. In opposition to reasonableness, Defendant relied in part on the affidavit of Dr. Mathesie, who is also a chiropractic doctor. This Court rejects the insufficient, incompetent affidavit of State Farm’s witness. Dr. Mathesie bases his opinion in part on “200% of Medicare Fee Schedule,” which State Farm’s policy did not elect pursuant to Geico Gen. Ins. Co. v. Virtual Imaging Svcs., Inc., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] (finding that an insurer must expressly and specifically incorporate the permissive statutory provisions into the policy in order to limit payment). Dr. Mathesie’s affidavit does not demonstrate relevance, sufficient data or similar circumstances in order to be admissible in this Court’s view, and the Mathesie opinion omits Dr. Mathesie’s own charges for each service and instead opines on what he would have “globally charged” or an approximate of the “approved” amount in the commercial policies market. Furthermore, the affidavit does not demonstrate required personal knowledge of the Miami-Dade community. The affidavit also is based on conjecture and speculation, when for instance, Dr. Mathesie couches his opinion: “most of the provider’s charged fees for the AMA CPT codes listing in this survey exceeded the average fees.” Of course, having an “average” fee means that there is a range of what is reasonable for each fee or service, and exceeding an average does not make a fee unreasonable. And further, the Mathesie opinion says “I do not find the amounts billed by other providers to be a factor that must be evaluated” which is strange because it is one of the enumerated factors in the policy and PIP statute. Finally, the Mathesie opinion also in part improperly relies on “subsidized programs (such as Medicare, Medicaid, and Workers’ Compensation).
5. In opposition to relatedness and necessity, Defendant again relied in part on the affidavit of Dr. Matehsie. Accordingly, this Court also rejects the affidavit of Dr. Mathesie which is speculative (e.g., unclear such as where he opines a service is duplicative or posits “if” or “could”), and raises issues not preserved as affirmative defenses (recordkeeping, lack of findings/time, upcoding, unbundling, improper coding, lack of discussion in the records, fraud). This Court further notes that lack of recordkeeping is not likened to a lack of medical necessity. See, e.g., Sevila Pressly Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (Fla. 11th Cir. Ct. App. 2013)(holding that lack of recordkeeping does not disestablish relatedness).
6. The Court also notes that there was no specific Mathesie comment on services billed with CPT code 98940 and 97012, and that Dr. Mathesie seems to imply that some units of 97140-59, 97110-59 and 97035 were okay, except for some speculative issue with coding. Also, Dr. Mathesie opines that x-rays are not medically necessary, yet he relied on the radiology findings to give his opinion, and x-rays are used to rule out a potential pathology. See, also, Banyas v. American Mutual Fire Insurance Co., 359 So.2d 506 (Fla. 1st DCA 1978)(the expense of diagnostic testing is recoverable even if the tests are negative, or if the tests reveal the injuries are not related to the accident.).
7. This Court does not find a genuine issue of material fact, although there is plenty of paper filed by State Farm which implies non-genuine issues and immaterial facts. Nor does this Court find a triable issue.
8. Summary Judgment/Disposition for relatedness and medical necessity is GRANTED as to all charges/services for all dates of service from October 28, 2009 thru November 23, 2009 for the motor vehicle accident on June 1, 2009. Summary Judgment/Disposition for reasonableness is GRANTED as to all charges/services.
9. Plaintiff may submit a final judgment.
