26 Fla. L. Weekly Supp. 307a
Online Reference: FLWSUPP 2604RALVInsurance — Personal injury protection — Coverage — Medical benefits — Licensed massage therapist — Pursuant to section 627.736(1)(a)5, licensed massage therapists are precluded from recovery of PIP benefits for all services that they perform, not just for massage therapy — No merit to argument that section 627.736(1)(a)5 does not preclude reimbursement for services provided by licensed massage therapist where clinic that employs therapist, not therapist, is entity seeking compensation
L & A MAJESTIC MEDICAL CENTER, LLC (A/a/o Alvarez, Raul), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 13-19009 SP 25. May 23, 2018. Linda Diaz, Judge. Counsel: Christian Carrazana, Homestead, for Plaintiff. George Gomez and Erik Fritz, Herssein Law Group, North Miami, for Defendant.
[Editor’s note: MOTION FOR REHEARING has been granted.]ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT BASED ON LMT SERVICES ASNON-REIMBURSABLE, DENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT REGARDING MASSAGE,AND DENYING PLAINTIFF’S MOTION FOR SUMMARYJUDGMENT AS TO LIABILITY AND/OR REASONABLENESS,RELATION, AND MEDICAL NECESSITY
THIS CAUSE came before this Honorable Court on March 28, 2018 for hearing on GEICO’s Motion for Summary Judgment Based on LMT Services as Non-Reimbursable, GEICO’s Motion for Summary Judgment Based on Massage, and Plaintiff’s Motion for Summary Judgment as to Liability and/or Reasonableness, Relation, and Medical Necessity. The Court, having reviewed the file and relevant legal authorities, and having heard argument of counsel, finds as follows:
FACTS AND PROCEDURAL HISTORY
GEICO issued a policy for automobile insurance to Raul Alvarez (“insured”), which provides among other things, personal injury protection insurance coverage to a policy limit of $10,000 as required by Florida law. That policy as issued on January 12, 2013 and was in effect on March 13, 2013, the date Raul Alvarez was allegedly involved in a motor vehicle accident wherein he sustained injuries.
October 25, 2013, Plaintiff, L & A Majestic Medical Center, LLC (a/a/o Raul Alvarez), filed this PIP lawsuit, alleging that Plaintiff was owed further reimbursement for treatment allegedly rendered to the insured for dates of service March 18, 2013 through May 23, 2013.
On December 26, 2013, GEICO filed its Answer and Affirmative Defenses to Plaintiff’s Complaint, raising an Affirmative Defense alleging that the services at issue were rendered by a Licensed Massage Therapist and that pursuant to Fla. Stat. § 627.736 (1)(a)(5), medical benefits do not include services provided by a Licensed Massage Therapist, and that resultantly Plaintiff was not entitled to the payment of benefits under the Policy at issue.
While GEICO also averred in its Answer and Affirmative Defense that massage therapy was not compensable both under the policy at issue and under Florida law, Plaintiff subsequently withdrew all claims for CPT Code 97124, corresponding to Massage Therapy, in its Response to Defendant’s Motion for Summary Judgment Re: Massage and LMT Services as Non-Reimbursable, filed with the Court on November 26, 2017.
Plaintiff’s responses to discovery, responses to motions, and deposition testimony reflect Plaintiff’s assertions that 1) Fla. Stat. § 627.736 (1)(a)(5) only precludes Licensed Massage Therapists from being reimbursed for massage, which was withdrawn in this matter and 2) that the entity seeking payment in this matter is not a Licensed Massage Therapist but an incorporated health clinic, separate and distinct from the persons comprising it. It is undisputed that the services for which Plaintiff was not reimbursed were those rendered by a Licensed Massage Therapist.
ISSUE BEFORE THE COURT
The issue before this Court is whether the Defendant insurer properly denied the Plaintiff provider’s bills on the basis of Florida Statute §627.736(1)(a)(5) and the subject insurance policy, which incorporates said statute. Florida Statute §627.736(1)(a)(5) reads in pertinent part Medical benefits do not include massage. . . regardless of the person, entity, or licensee providing massage. . .and a licensed massage therapist may not be reimbursed for medical benefits under this section.” [emphasis added]
The Court also has the additional issue of determining whether the services at issue in this case were reasonable, relatedness, and medical necessity of the treatment that was allegedly rendered to the insured.
STANDARD OF REVIEW
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510.
It is well-established in Florida that a party moving for summary judgment has “the burden of proving a negative, i.e., the nonexistence of a genuine issue of material fact,” and that it must do so conclusively. Holt v. Talcott, 191 So. 2d 40, 43 (Fla. 1966).
Florida courts have construed this principle to require a movant to demonstrate that the undisputed facts conclusively establish that the opposing party cannot prevail. Florida E. Coast R. Co. v. Metropolitan Dade County, 438 So. 2d 978 (Fla. 3d DCA 1983). See also Archie v. State Farm & Cas. Co., 603 So. 2d 126 (Fla. 2d DCA 1992).
In order to meet this burden, a movant must “overcome all reasonable inferences which may be drawn in favor of the opposing party.” Star Lakes Estates Ass’n, Inc. v. Auerbach, 656 So. 2d 271, 274 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1455a] (citations omitted). See also Holl v. Tolcott 191 So. 2d 40, 43 (Fla. 1966) (moving party must demonstrate the absence of all reasonable inferences which may be drawn in favor of the moving party); Albelo v. Southern Bell, 682 So. 2d 1126, 1129 [21 Fla. L. Weekly D2165a] (“even where the facts are uncontroverted, the remedy of summary judgment is not available if different inferences can be reasonably drawn from the uncontroverted facts”).
However, once the movant tenders competent evidence to support the motion, the party against whom the judgment is sought must present contrary evidence to reveal a genuine issue of material fact. It is not enough for the party opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So. 2d 646, 648 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1048a].
RATIONALE AND AUTHORITIES IN SUPPORT OF RULING
I. LMT Services are Not Reimbursable under Fla. Stat. §627.736(1)(a)(5)
GEICO’s Motion for Summary Based on LMT Services as Non-Reimbursable is GRANTED, as there are no genuine issues of material fact in dispute, and GEICO is entitled to a judgment as a matter of law. Based on the evidence presented through the deposition and affidavits on file, the Court finds that treatment rendered by a Licensed Massage Therapist is non-reimbursable, and the fact that a corporate entity is being reimbursed for those services rather than a Licensed Massage Therapist does not change the unambiguous language and intent of Fla. Stat. §627.736(1)(a)(5).
Fla. Stat. §627.736(1)(a)(5) reads in pertinent part “Medical benefits do not include massage. . . regardless of the person, entity, or licensee providing massage. . . and a licensed massage therapist may not be reimbursed for medical benefits under this section.
Plaintiff advances two primary reasons as to why Plaintiff believes that reimbursement is required under the statute. First, Plaintiff contends that the statute does not prohibit Licensed Massage Therapists from all forms of reimbursement but rather, only prohibits reimbursement for massage benefits, which Plaintiff has withdrawn from the litigation. Second, Plaintiff believes that reimbursement is required in this case because it was not the Licensed Massage Therapist who was seeking reimbursement but instead the incorporated health clinic, which employs the Licensed Massage Therapist. This Court is not persuaded as to either argument advanced by the Plaintiff.
The Florida Legislature specifically and purposely carved out an exception with regard to Licensed Massage Therapists and massage therapy under the PIP statute. Florida law clearly and unambiguously defines “massage” and “massage therapist,” and section 627.736(1)(a)(5) expressly excludes “massage” from the category of medical benefits. In other words, massage is not a medical benefit. However, the Legislature did not stop there and further provided that “. . .a licensed massage therapist may not be reimbursed for medical benefits.” Fla. Stat. 627.736 (1)(a)(5).
The language of the statute is clear and unambiguous: massage is not a medical benefit and as such, is not compensable. Moreover, Licensed Massage Therapists cannot be reimbursed for medical benefits, which are distinct from massage.
A review of the legislative history of section 627.736(1)(a)(5) only confirms what the clear and unambiguous language of the statute states.
On May 4, 2012, Florida Gov. Rick Scott signed into law House Bill 119, a bill that made significant changes to the state’s No-Fault Law. The changes were intended to combat fraud associated with staged accidents and address the abuse of PIP coverage, which has led to illegal or improper medical billing practices and increased frequency of lawsuits.
On August 20, 2012, the Florida Office of Insurance Regulation (OIR) commissioned an Impact Analysis to calculate the savings to be expected as a result of House Bill 119. That impact analysis specifically addressed the exclusion of massage therapy from reimbursement under PIP. In discussing the estimated savings as a result of House Bill 119, the impact analysis noted:
We have identified massage benefits as CPT code 97124. . . .We also reviewed other procedures performed by massage therapists and included an estimated savings for these since the law precludes all services provided by licensed massage therapists from recovery under PIP.
Impact Analysis of HB 119, dated August 20, 2012. Emphasis added.
The emphasized language above only confirms what the clear and unambiguous language of the statute states: Licensed Massage Therapists are precluded from recovery under PIP for all services that they perform — not just massage therapy.
Plaintiff’s counter-argument contends that even if Licensed Massage Therapists cannot be reimbursed for medical benefits under 627.736(1)(a)(5), reimbursement is nonetheless required in this case because it was not the Licensed Massage Therapist who was seeking reimbursement but instead the incorporated health clinic, which employs the Licensed Massage Therapist. This very argument was recently advanced in a Miami-Dade County sister Court where it was soundly rejected:
Plaintiff’s position is that a clinic may be reimbursed for services provided by a licensed massage therapist because the clinic is being compensated, rather than the licensed massage therapist. . .
. . .In essence, Plaintiff’s argument is that a clinic can “back-door” what it can’t get in through the front door, which is compensation for treatment that under the PIP statute is not compensable, merely because the clinic has a license to perform those services. Plaintiff would have this Court so narrowly construe the statute that it would defeat the entire purpose of what the Florida legislature intended, which was very clearly and unambiguously in the plain letter of the statute that licensed massage therapists shall not be compensated for their services by an insurer.
Sunshine Rehab & Medical Inc. v. Progressive American Insurance Company, 25 Fla. L. Weekly Supp. 549a (Fla. Miami-Dade County Ct. 2017).
The outcome is the same in this case. This Court will not so narrowly construe the statute as to read in the word “direct” and hold that the statute only precludes “direct reimbursement” to a Licensed Massage Therapist. Such a narrow interpretation would run afoul of the rules of statutory interpretation and would eviscerate the clear Legislative intent to exclude Licensed Massage Therapists from compensation under the PIP statute.
Therefore, there is no genuine issue as to any material fact regarding the interpretation of Florida’s PIP statute and the services at issue. Accordingly, all services provided by the licensed massage therapist to the insured are non-compensable and GEICO is not liable to reimburse Plaintiff for services for which reimbursement is statutorily precluded.
II. Massage
GEICO’s Motion for Summary Judgment Regarding Massage is DENIED AS MOOT. A review of the record shows that Plainn withdrew CPT Code 97124, corresponding to Massage Therapy, on November 26, 2017. GEICO conceded this fact at the hearing on GEICO’s Motion for Summary Judgment. Therefore, the Court has no reason to engage in an inquiry and render an opinion with regard to a matter that has been withdrawn and is presently moot.
III. Reasonableness, Relatedness, and Medical Necessity
Plaintiff’s Motion for Summary Judgment as to Liability and/or Reasonableness, Relation, and Medical Necessity is DENIED. Although Plaintiff did present uncontroverted evidence with regard to reasonableness, relatedness, and medical necessity, as noted above in great detail, the services in this case are not compensable as they were performed by a Licensed Massage Therapist. Therefore, there is no need to engage in a review as to whether these non-compensable services are reasonable, related, and medically necessary since GEICO has no statutory obligation to reimburse Plaintiff for those expenses.
Accordingly, for the reasons stated above, it is hereby:
ORDERED AND ADJUDGED that GEICO’s Motion for Summary Judgment Based on LMT Services as Non-Reimbursable is GRANTED; and it is hereby:
ORDERED AND ADJUDGED that GEICO’s Motion for Summary Judgment Regarding Massage is DENIED AS MOOT; and it is hereby:
ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment as to Liability and/or Reasonableness, Relation and Medical Necessity is DENIED.
