26 Fla. L. Weekly Supp. 602a
Online Reference: FLWSUPP 2607BEHNInsurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where insurer exhausted policy limits by gratuitously overpaying another medical provider for CPT code that was not reimbursable under Medicare Part B and should have been reimbursed at 80% of maximum allowance under workers’ compensation fee schedule, PIP benefits are not exhausted, and plaintiff provider is entitled to additional benefits
BEHNAM MYERS DO PA, Plaintiff(s)/Petitioner(s) v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant(s)/Respondent(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE18007822, Division 50. August 15, 2018. Mardi Levey Cohen, Judge.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AS TO EXHAUSTION OF BENEFITS
THIS CAUSE having come on to be heard on Defendant’s Motion for Summary Judgment/Disposition, the Court having been otherwise fully advised in the premises and by review of the Record, file, affidavit, notices of filing, authorities and argument on July 26, 2018, it is hereby,
ORDERED AND ADJUDGED:
1. Defendant’s Motion for Summary Judgment/Disposition is DENIED.
2. Defendant moved for summary judgment/disposition that PIP benefits are exhausted. The parties agree that Defendant’s insurance policy elects the “schedule of maximum charges”. The “schedule of maximum charges” contains fee schedules, each of which must be unambiguously incorporated. In this case, the policy states that:
The Company will pay. . .(A) Eighty percent (80%) of medical benefits, which are medically necessary, pursuant to the following schedule of maxim charges contained in the Florida Statutes §627.736(5)(a)1., (a)2. and (a)3:
. . .
6. For all other medical services, supplies, and care, 200% of the allowable amount under:
(I.) The participating physicians fee schedule of Medicare Part B [. . .]
. . .
However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in (A)6. above), we will limit reimbursement to eighty percent (80%) of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided.
3. In this case it is undisputed that Defendant received bills from another provider for CPT code 97010 and 98943. Both CPT code 97010 and 98943, pursuant to the fee schedule, are not payable under Medicare Part B; thus, CPT code 97010 and 98943 must be paid pursuant to the Workers Compensation fee schedule maximum reimbursable allowance, which is $10.00 and $23.00. Yet, Defendant admittedly allowed more than the maximum reimbursable allowance under the schedule of maximum charges.
4. Plaintiff submits that Defendant voluntarily overpaid for CPT code 97010 and 98943, which overpayment should not count against the PIP policy limit of $10,000. Plaintiff submits that the voluntary overpayment is gratuitous and that the overpayment led to Defendant alleging premature exhaustion.
5. Defendant filed the affidavit of the adjuster Jicson Collazo. The affidavit attest that Geico determined the proper amount allowed for CPT code 97010 based on the Relative Value Units (“RVU”) analysis and proffered that RVU reflects the relative resources required to furnish a physician fee schedule service. However, the affidavit does not state that CPT code 97010 is payable under the Medicare Part B Participating Physicians Fee Schedule, which is what the policy requires GEICO utilize. Additionally, GEICO offered no evidence or explanation as to the overpayment for CPT code 98943.
6. Geico’s policy provides that it will pay pursuant to the participating physicians fee schedule of Medicare Part B and if the service is not compensable under that specified fee schedule, it will pay under workers compensation. The record evidence demonstrates that CPT code 97010 and 98943 are not payable under the participating physicians fee schedule. Accordingly, the policy requires that Geico pay pursuant to workers compensation. This is also consistent with the insurance industry given the explanations of review the Plaintiff filed and relied on in opposition to summary judgment which demonstrates the custom and practice of allowing CPT code 97010 at $10.
7. There is one appellate case on point, which is Ocean Harbor Casualty Ins. Co. v. Medical Specialist of Tampa Bay, Case No 2011-AP-9-WS (Fla. 6th Cir. App. Ct. January 22, 2013) [26 Fla. L. Weekly Supp. 534a]. The appellate court found that payment above the policy fee schedule reimbursement by an insurer is considered gratuitous and voluntary and should not count against the $10,000 limit of liability for the insured’s PIP. Specifically, in Ocean Harbor, the plaintiff-medical provider was on the short-end of PIP benefits because the PIP insurer received bills from a MRI center and paid the MRI bills at 80% of the submitted reasonable charges, instead of 80% of 200% of Medicare. Thus, Ocean Harbor overpaid the PIP benefits to another provider, which was “more than it was required to pay under the insurance policy.” The appellate court agreed that Ocean Harbor, “in effect, [should] be held to only have paid what it properly should have paid under the terms of the contract and [should] get no credit for what it paid over and above the contractual amount. The improper payments [should] be considered gratuitous and voluntary.” The appellate court agreed that “[i]f payment of the amount that it should have paid under the contract leaves an unpaid balance of PIP benefits, then Ocean Harbor [should] be required to pay the amount to other medical providers, even if the total paid exceeded the $10,000 PIP limit.”
8. In addition, the same issue raised in this case has been heard and ruled upon in favor of the Plaintiff by several Broward County Judges finding that the payment over the $10.00 allowed by Workers Compensation constituted a gratuitous payment and cannot count against the $10,000.00 policy limits. See Plantation Open MRI, LLC a/a/o Fabreece Ductan v. GEICO General Insurance Company, COCE 16-015816 [26 Fla. L. Weekly Supp. 603a]; Advanced Orthopedics & Pain Management, P.L. a/a/o Hans Rohrer v. GEICO Indemnity Company, COSO 16-003930. It is also worth noting that Geico appealed this Court’s prior ruling in Advanced Orthopedics & Pain Management, P.L. a/a/o Hans Rohrer v. GEICO Indemnity Company, COSO 16-003930 and has since dismissed said appeal.
9. Another appellate case further clarified that there is such a thing as “non-exhaustion of benefits.” In State Farm Auto. Ins. Co. v. Roberto Rivera-Morales, M.D. a/a/o Thomas Mayeko-Coklee, 24 Fla. L. Weekly Supp. 101a (Fla. 11th Cir. Ct. App. May 10, 2016), the three judge appellate panel, affirmed the trial court’s finding of non-exhaustion and remanded that the gratuitous payments made to the insured and other medical provider shall be deducted from the limits so a final judgment up to $10,000 can be awarded. Notably, the appellate court reiterated that no more than $10,000 can be awarded absent a finding of bad faith, but that gratuitous payments are deducted from any calculation of the limits.
10. Defendant also argued that the Northwoods case controls in this case. However, Northwoods deals with situation where the PIP insurer paid a valid claim at the proper amount, not where the PIP insurer literally overpaid a claim, which resulted in a premature exhaustion. Furthermore, in this case, the claim submitted by CEDA Orthopedics & Interventional Medicine of FIU Kendall, LLC was only valid up until $10.00 for CPT code 97010 and up to $23.00 for CPT code 98943; thus, even a liberal reading of Northwoods supports Plaintiff’s position here because payment above $10.00 is invalid. There is no need for the Court to reach a conclusion as to “bad faith” since Northwoods is imapplicable to the instant case. Further, this Court does not find that overpayment is always based on “bad faith,” certainly inadvertence may be the cause of overpayment.
11. Plaintiff’s position is consistent with logic and commonsense. The PIP insurer does not get to credit an overpayment of PIP benefits to a limited $10,000 policy, thereby resulting in a premature exhaustion and diminishing treatment paid under the policy for other valid claims, like Plaintiff’s claim in this case.
12. For these reasons and the Record and arguments, Defendant’s Motion is DENIED, and the Court finds that PIP benefits are not exhausted and that Plaintiff is entitled to additional PIP benefits.
