25 Fla. L. Weekly Supp. 988a
Online Reference: FLWSUPP 2511NOZIInsurance — Personal injury protection — Coverage — Medical expenses — Non-massage therapies, performed by licensed massage therapist on behalf of non-LMT owned and duly licensed healthcare clinic, are reimbursable under statute’s plain meaning where the therapies were medically necessary and related to underlying accident
NORTH MIAMI THERAPY CENTER, INC. (a/a/o Andrela Nozil), Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-004091 COCE (51). December 26, 2017. Kathleen McCarthy, Judge. Counsel: Susan Guller, The Law Offices of Justin G. Morgan, P.A., Weston, for Plaintiff. George Gomez, Herssein Law Group, North Miami, for Defendant.
ORDER ON GEICO’S MOTION FOR SUMMARYJUDGMENT BASED ON LMT SERVICES AS NON-REIMBURSABLE AND ON PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT ON LMTBILLED SERVICES AS REIMBURSABLEMEDICAL NECESSITY, AND RELATEDNESS
THIS CAUSE having come before the Court on Plaintiff’s Motion for Final Summary Judgment on LMT Billed Services as Reimbursable, Medical Necessity and Relatedness, and Defendant’s Motion for Summary Judgment Based on LMT Services as Non-Reimbursable and, and the Court having reviewed the pleadings, having heard argument of counsel, and being otherwise fully advised in the premises, it is hereupon ORDERED and ADJUDGED, as follows:
1. Plaintiff’s Motion for Final Summary Judgment on LMT Billed Services as Reimbursable, Medical Necessity, and. Relatedness is GRANTED.
2. Plaintiff established its prima facie case on the bills being related and medically necessary through filing the Affidavits of its Billing Clerk and Records Custodian, Claude Jules, attaching the Assignment of Benefits and bills at issue, and by filing the Affidavit of the treating Chiropractor, Dr. Robert Gordon, who attested to the treatment being both medically necessary and related to the accident at issue.
3. Defendant failed to submit any admissible evidence to oppose medical necessity or relatedness.
4. Defendant did not move for continuance of the Summary Judgment on the issue of medical necessity or relatedness, though defense counsel did mention that he had not have the opportunity to depose the Affiant, Dr. Gordon. However, without any Motion for Continuance, ore tenus or otherwise and due to this case being a 2014 case pending for over three (3) years, the Court does not agree Defendant did not have any opportunity to depose the treating chiropractor before now. Nor was any argument made or evidence put forth by Defendant of any attempts to depose Dr. Gordon prior to Plaintiff filing his Affidavit on November 17, 2017 in support of its Motion for Summary Judgment.
5. The issue of the Licensed. Massage Therapist (LMT) billed services is a matter of first impression for this Court as to whether LMT services provided on behalf of a non-LMT owned, and duly licensed healthcare clinic, are reimbursable under §627.736(1)(a)(5), Fla.Stat.
6. The Court finds that the LMT services billed by Plaintiff are compensable and reimbursable as PIP benefits pursuant to §627.736(1)(a)(5), Fla.Stat.
7. Plaintiff had previously withdrawn from consideration CPT Code 97124 for massage therapy, so this service was not at issue.
8. Plaintiff set forth, through Dr. Gordon’s Affidavit, that the remaining CPT Codes at issue provided by the LMT, were not massage therapy. Defendant filed nothing to oppose this.
9. The fact that an LMT performed the therapies at issue does not change the fact that the services provided and billed by Plaintiff, found to be medically necessary and related, are reimbursable under the Statute’s plain meaning. This Court cannot, and will not, rewrite a Statute that is clear and unambiguous. The fact that the persons performing the therapies at issue have a license, and enhanced education to perform massage, does not relieve Defendant from its liability under the Statute.
10. The Court adheres to Judge Lee’s decision on this issue in North Miami Therapy Center, Inc. a/a/o Winskv Fleureny vs. Government Employees Insurance Company, Case No.: COCE 14-14132 (53), Broward Cty., 8/31/16 wherein Judge Lee found in favor of Plaintiff on this very issue. The Court also follows the ruling and reasoning in the case of Therapeutic Rehab Ctr., a/a/o Marisol Martinez vs. GEICO Indemnity Co., Case No.: 14-5299 CC 26 (3), Dade Cty. 12/3/15. The Court distinguishes Defendant’s argument based on Sunshine Rehab & Medical, Inc., a/a/o Rafael Sanchez vs. Progressive American Insurance Company, 25 Fla. L. Weekly Supp. 549a (11th Jud. Cir. 7/10/17) because in that case the treatment at issue was ry CPT Code (97124) for massage therapy that was sought to be reimbursed when rendered by the LMT. In this case, Plaintiff withdrew massage therapy CPT Code 97124 from this Court’s consideration and from the lawsuit herein via a Notice of Withdrawal filed 6/10/14. Therefore, the Court finds that case distinguishable and not controlling.
11. Defendant’s Motion for Summary Judgment Based on LMT Services as Non-Reimbursable is hereby DENIED.
12. Plaintiff stipulated to reasonableness based upon the Medicare Fee Schedule/Workers Compensation Fee Schedule.
13. Plaintiff is owed PIP benefits for all bills at issue reduced pursuant to said schedules, plus reasonable attorney’s fees and costs.
