25 Fla. L. Weekly Supp. 220a

Online Reference: FLWSUPP 2503SCOTInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Affidavit submitted by insurer in opposition to provider’s motion for summary judgment was sufficient to demonstrate existence of genuine issues of material fact as to reasonableness of medical bills and necessity of treatment, thereby precluding entry of summary judgment — Insurer can challenge necessity of medical treatment at any time

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. HEALTH & WELLNESS ASSOCIATES, INC., as assignee of Karlene Scott, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 15-313 AP. L.T. Case No. 13-010717 SP 05. May 24, 2017. An appeal from the County Court for Miami-Dade County, Shelley J. Kravitz, Judge. Counsel: Kenneth P. Hazouri, deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, for Appellant. Richard E. Doherty, Law Offices of Richard E. Doherty, P.A., for Appellee.

(Before MILLER, ARZOLA, and RUIZ, JJ.)

(RUIZ, Judge.)

I. Facts and Procedural Background

In January 2010, Karlene Scott (“Scott”), a State Farm personal injury protection (“PIP”) insured, was injured in a car accident and received medical treatment from Appellee, Health & Wellness Associates, Inc. (“H&W”). H&W submitted medical bills to Appellant, State Farm, totaling over $3,200.00. State Farm reduced the bills to two hundred percent of the participating fee schedule of Medicare Part B, and tendered payment. H&W proceeded to file suit claiming the balance of its bills, and ultimately filed a motion for summary judgment on the issues of reasonableness, relatedness, and medical necessity. See United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So. 3d 60, 64 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b] (explaining that when an insured seeks payment of PIP benefits from the insurer, the insurer must pay the claim if it is reasonable, related, and medically necessary).

In support of its motion for summary judgment, H&W relied upon the affidavit of Dr. Russell Ficara, Scott’s treating physician, who indicated that based on his experience and knowledge, the medical bills were reasonable, and all services rendered were related and medically necessary. In opposition to H&W’s motion for summary judgment, State Farm relied on an affidavit from Dr. Michael Mathesie (“Mathesie Affidavit”) in support of its argument that the medical bills were unreasonable and the treatment was unnecessary. The trial court, after holding a hearing, entered summary judgment in favor of H&W. This appeal ensued.

II. Standard of Review

The standard of review for summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]. In reviewing a summary judgment this Court “must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party . . . and if the slightest doubt exists, the summary judgment must be reversed.” Tropical Glass & Const. Co. v. Gitlin, 13 So. 3d 156, 159 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1163a] (quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001)[26 Fla. L. Weekly D577a]); see also RV-7 Property, Inc. v. Stefani De La O, Inc., 187 So. 3d 915, 917 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D688a] (holding that in order to prevail on a motion for summary judgment, the moving party has an obligation to demonstrate conclusively the absence of any genuine issues of material fact) (citing Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985)).

III. Analysis

The outcome of this appeal turns on the sufficiency of the Mathesie Affidavit submitted by State Farm in opposition to the motion for summary judgment filed by H&W. As explained below, we reverse the trial court’s ruling and find that (i) the Mathesie Affidavit was sufficient to demonstrate the existence of genuine issues of material fact as to the reasonableness of the medical bills and the necessity of the treatment, thereby precluding the entry of summary judgment; and (ii) an insurer can challenge the necessity of medical treatment at any time.

(i) The Mathesie Affidavit creates genuine issues of material fact precluding the entry of summary judgment.

Under the PIP statute, section 627.736, insurers must elect one of two methods for paying medical claims. Method one requires the insurer to reimburse the reasonable amount of charges pursuant to a fact-dependent analysis that takes into account “evidence of usual and customary charges and payments accepted by the provider involved in the dispute, 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 reimbursement for the services, treatment, or supply.” Fla. Stat. § 627.736(5)(a)(1) (2010); see also Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 155-56 (Fla. 2013) [38 Fla. L. Weekly S517a] (explaining that the Florida Motor Vehicle No-Fault Law provides two ways of determining whether expenses are reasonable for purposes of insurer reimbursements, and the first is a fact-dependent methodology that takes into account the service provider’s usual and customary charges, community-specific reimbursement levels, and other relevant information).

Method two allows an insurer to limit reimbursement to eighty percent of two hundred percent of the Medicare Part B participating physicians fee schedule for 2007 or the current year, whichever is greater. Fla. Stat. § 627.736(5)(a)(2); see also Virtual Imaging, 141 So. 3d at 156 (noting that the second methodology for calculating PIP reimbursements, introduced by the Florida Legislature in 2008, allows reimbursements to be limited to eighty percent of two hundred percent of the applicable Medicare fee schedule). To the extent an insurer seeks to use method two — the Medicare Part B fee schedule — as its sole basis for calculating reasonable reimbursements, the insurer must explicitly elect this option in its policy language. Virtual Imaging, 141 So. 3d at 159; see also Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973, 976 (Fla. 2017) [42 Fla. L. Weekly S38a] (explaining that pursuant to Virtual Imaging, there are two different methodologies for calculating reimbursements to satisfy the PIP statute’s reasonable medical expenses coverage mandate, and reliance on fee schedule limitations contained within section 627.736(5)(a)(2) requires a clear and unambiguous election).

Here, neither party asserts that State Farm elected the Medicare Part B fee schedule as its sole basis for determining reasonable charges as permitted by section 627.736(5)(a)(2). Thus, State Farm’s method of determining reasonableness must be the first method described in section 627.736(5)(a)(1), which relies upon a “fact-dependent inquiry determined by consideration of various [enumerated] factors.” Virtual Imaging, 141 So. 3d at 155-56. H&W argues that the Mathesie Affidavit is defective because it impermissibly references the Medicare Part B schedule as one of the factors considered by Dr. Mathesie, despite State Farm failing to elect this reimbursement scheme for limiting payments as set forth under section 627.736(5)(a)(2).

This argument, however, misconstrues the PIP statute as well as the Florida Supreme Court’s holdings in Virtual Imaging and Orthopedic Specialists. Pursuant to the fact-dependent analysis in section 627.736(5)(a)(1), an insurance company may use “various federal and state medical fee schedules” as one consideration among a range of other factors in determining reasonableness. See Orthopedic Specialists, 212 So. 3d at 979 (holding that “[i]n explaining the factors that are relevant to determining what constitutes a reasonable charge, subsection (a)(1) simply provides that ‘consideration may be given’ to various relevant factors, including ‘various federal and state medical fee schedules applicable to automobile and other insurance coverages.’ ”) (quoting Fla. Stat. § 627.736(5)(a)(1)).¹

Moreover, a review of the Mathesie Affidavit clearly demonstrates that he did not exclusively rely on the Medicare Part B fee schedule, but instead permissibly referenced it as one of numerous factors used to arrive at his conclusions regarding the reasonableness of the charges at issue. In fact, in addition to various state and federal fee schedules, Dr. Mathesie avers that he relied upon his personal knowledge regarding reimbursement rates in the community, his clinical practice experience of 25 years and specialized training as an instructor in chiropractic billing and coding practices, and the ChiroCode Book in concluding that the amounts paid by State Farm represent a reasonable reimbursement. Similarly, the Mathesie Affidavit raises genuine issues of material fact regarding the medical necessity of treatment rendered in this case by describing inconsistencies between the nature of Scott’s accident and the injuries she purportedly suffered, as well as noting discrepancies in the claimant’s treatment plan.

Accordingly, the Mathesie Affidavit creates genuine issues of material fact regarding the reasonableness of the charges and the medical necessity of the treatment that cannot be resolved via summary judgment. See Campaniello v. Amici P’Ship, 832 So. 2d 870, 872 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D2554d] (explaining that “[t]he trial court must interpret every possible inference in favor of the non-movant, and should not enter summary judgment unless the facts are so crystallized that nothing remains but questions of law.”).

(ii) State Farm is permitted to contest the medical necessity of the treatment even after issuing reduced payments.

H&W also argues that State Farm forfeited its right to contest the medical necessity of the treatment at issue because it made reduced payments on H&W’s charges. However, section 627.736(4)(b), which addresses “Payment of Benefits” under the PIP statute, clearly authorizes and enables an insurer to contest the reasonableness, relatedness, and medical necessity of claims, even after issuing reduced payments:

[P]ersonal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. However:

. . . .

This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion may be made at any time, including after payment of the claim or after the 30-day period for payment set forth in this paragraph.

Fla. Stat. § 627.736(4)(b)(6) (emphasis added); see also Coral Gables Chiropractic PLLC v. United Auto. Ins. Co., 199 So. 3d 292, 295 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D687a] (“Because section 627.736(4)(b)(6) allows an insurer to dispute the reasonableness of charges at any time, including after payment of the claim, the fact that UAIC issued payments in amounts $2,873.12 for PIP benefits does not dispose of the issue of the charges’ reasonableness.”) (emphasis added); Florida Medical & Injury Center, Inc. v. Progressive Exp. Ins. Co., 29 So. 3d 329, 340 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b] (holding that section 627.736(4)(b) is meant to allow insurers to challenge a claim as unrelated, not medically necessary, or unreasonable “at any time, even after payment.”) (emphasis added).

Accordingly, the plain language of the PIP statute permits an insurer to challenge the necessity of a provider’s medical treatment at any point, including after payment of the claim. Therefore, H&W’s argument that State Farm somehow waived its ability to contest medical necessity is without merit, and State Farm was in no way estopped from disputing medical necessity via the Mathesie Affidavit.

IV. Conclusion

Based upon the foregoing, the order granting summary judgment in favor of the Appellee is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. Additionally, Appellee’s Motion for Appellate Attorney’s Fees pursuant to Rule 9.400(b) of the Florida Rules of Appellate Procedure is hereby DENIED. Given that Appellee is not the prevailing party in this appeal, attorney’s fees are not attainable. See Fla. Stat. § 627.428(1); Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So. 2d 252, 254 (Fla. 2006) [31 Fla. L. Weekly S762a] (holding that “under the plain language of section 627.428(1), an appellate court may not award attorney’s fees to an insured unless the insured prevails on appeal.”). (MILLER and ARZOLA, JJ., concur.)

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¹The Court notes that a prior appellate panel of the Eleventh Judicial Circuit has held that an affidavit in opposition to summary judgment on the issue of reasonableness may not rely on the Medicare Fee Schedules without electing said option in their policies. See Hialeah Medical Assoc., Inc., a/a/o Ana Lexcano v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. Ct. App., Mar. 7, 2014). However, as pointed out in Lexcano, subsection 627.736(5)(a) was amended in 2007 to add (5)(a)(2) through (5), thereby incorporating the fee schedules. See Geico Indem. Co. v. Virtual Imaging Services, Inc., 79 So. 3d 55, 56 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a] (“In 2007, the Legislature amended the PIP statute to incorporate fee schedules); see also Ch. 2007-324, §§ 20, 23, Laws of Fla. Given that Lexcano addressed an insurance policy predating the aforementioned statutory amendment, it is inapplicable to the instant case.