26 Fla. L. Weekly Supp. 143a
Online Reference: FLWSUPP 2602NUNEInsurance — Personal injury protection — Summary judgment is entered in favor of insurer on issue of correctness of its calculation of reductions pursuant to statutory fee schedules and Multiple Procedure Payment Reduction where insurer filed affidavit of litigation specialist and explanations of benefits detailing calculation of payments for all dates of service, and medical provider failed to file affidavit detailing contrary calculations and filed deposition in which it failed to impeach testimony of insurer’s corporate representative
JIMENEZ CHIROPRACTIC-MED SPA, LLC, a/a/o Alba Nunez, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 15-021563 (52). April 21, 2017. Guiseppina Miranda, Judge. Counsel: Michael J. Cohen, Cohen Legal Group, P.A., Weston, for Plaintiff. Randall B. Bishop and Kevin P. Sincerbox, Progressive PIP House Counsel, Ft. Lauderdale, for Defendant.
FINAL SUMMARY JUDGMENTIN FAVOR OF DEFENDANT
THIS CAUSE having come before the Court on for hearing on March 27, 2017 on the Defendant’s Second Amended Motion for Summary Judgment dated February 20, 2017 and the Court having reviewed the Motion and the relevant legal authorities; having heard argument of counsel and having made a thorough review of the matters filed in support of and in opposition to the motion; and having been sufficiently advised in the premises, the Court finds as follows:
A. Plaintiff stipulated (for purposes of this case only) that Defendant has properly incorporated the Medicare fee schedule into its policy as a limitation when paying benefits. Additionally, Plaintiff stipulated (for purposes of this case only) that Defendant has properly utilized the Multiple Procedure Payment Reduction (hereafter referred to as “MPPR”) when calculating reimbursement of Plaintiff’s bills.1
B. However, Plaintiff argued that the reductions were improperly calculated for CPT Codes 97012, 97035, 97110, and 97140. In support of this contention, Plaintiff filed their Response to Defendant’s Motion for Final Summary Judgment and Cross-Motion for Summary Judgment on Count II. Plaintiff did not file an affidavit in support of their cross-motion contention that the reimbursement was improperly calculated (see Plaintiff’s response beginning on page 18). Nor did Plaintiff file an affidavit in opposition to Defendant’s motion.2
C. In support of their motion, Defendant has filed the affidavit of their litigation specialist, Angela McDaniels. The affidavit avers that the Defendant received bills from the Plaintiff in the amount of $6,910.00. After application of the $1000.00 deductible and all other calculations, the Defendant made payment in the amount of $3,732.17 with is 80% of the “amount allowed” (see affidavit, paragraph 7), Attached to the affidavit are the insurance policy, all of Plaintiff’s bills, the Medical Payments Detail and all of Defendant’s Explanations of Benefits (hereinafter referred to as “EOB”). There are eighty (80) pages of EOBs detailing dates of service from April 21 through June 11, 2015.
D. Each EOB sets forth the following details: date of service, each CPT Code, each modifier, each diagnosis pointer, each unit, the amount charged for each CPT Code, the amount allowed for each CPT Code and the explanation codes. The explanation codes detail the reason for use of modifier, whether the MMR was utilized, etc.
E. In further support of its motion, Defendant properly requested the Court take judicial notice of the following: 75 Fed. Reg. 73241 (November 29, 2010); Centers for Medicare & Medicaid Service, MLN Matters No. MM8206; excerpts from 42 U.S.C. §1395, also known as §1848 of the Social Security Act describing the Multiple Procedure Payment Reduction (“MPPR”); and Table of Contents of Social Security Act, Listing 42 U.S.C §1395 under Medicare Part B.
F. Therefore, the sole issue before this Court is an issue of accounting and whether the proper modifiers, reductions and mathematical formulas were utilized by the Defendant.
G. Plaintiff’s only filing in opposition to Defendant’s motion is the transcript testimony of Defendant’s corporate representative taken on February 21, 2017.
H. Plaintiff mainly relies on alleged conflicts in the corporate representative’s deposition testimony and/or lack of details relating to how the reimbursements were calculated to show that Defendant has not conclusively shown the absence of any genuine issue of material fact and/or that an issue of fact exists as to whether Defendant properly calculated the reductions. Therefore, the sole issue before this Court is an issue of accounting and whether the proper modifiers, reductions and mathematical formulas were utilized by the Defendant.
I. After review of the deposition testimony, the Court finds that Plaintiff failed to substantially impeach the witness’s testimony and; therefore, this Court finds that Defendant (through its affidavit and EOBs) has met its burden to conclusive show the absence of any genuine issue of material fact. Smith v. Shelton, 970 So. 2d 450, 451 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D2873a].
J. This Court further finds that because Plaintiff failed file an affidavit in opposition to Defendant’s motion detailing a contrary calculation, Plaintiff has failed to prove the existence of genuine triable issues. See 770 PPR, LLC v. TJCV Land Trust, 30 So. 3d 613 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D557a].3
Based on the foregoing, is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff, Jimenez Chiropractic-Med Spa, LLC, shall take nothing by this action. FINAL JUDGMENT is hereby entered in favor of the Defendant, Progressive Select Insurance Company, and it shall go hence forth without day. The Court reserves jurisdiction determine entitlement to reasonable fees and costs.
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1Plaintiff agreed that these stipulations would result in Defendant’s motion being dispositive of the case, if granted.
2Plaintiff did file an affidavit which addressed the issues ultimately stipulated to; however, the affidavit did not address the manner the reimbursement were calculated. Plaintiff’s cross-motion also contains a reference to the misapplication of the fee schedule to the deductible which this court has previously ruled in favor of Defendant. (See ruling in Broward County Case No. COCE 13-12197.)
3 The 4th DCA found that “at no time have the borrowers offered a contrary calculation of the moneys owed; they merely contend. . .that they do not owe the amounts alleged by the bank. Such conclusory assertions are insufficient counter-evidence to avoid summary judgment.” Id. at 619.
