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PALMETTO LAKES THERAPY & REHABILITATION CENTER, INC. D/B/A LAKES REHAB (a/a/o Mazola, Ada), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant.

26 Fla. L. Weekly Supp. 150a

Online Reference: FLWSUPP 2602MAZOInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Provider met its burden to set forth prima facie showing that its charges were reasonable through the affidavit of individual who owned the clinic and also provided care and treatment to insured — Insurer failed to present competent, admissible evidence rebutting this prima facie showing

PALMETTO LAKES THERAPY & REHABILITATION CENTER, INC. D/B/A LAKES REHAB (a/a/o Mazola, Ada), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-15732-SP-23 (02). March 28, 2018. Caryn Schwartz, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Nicholas Babinski, House Counsel, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT ANDFINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the Motion and the summary judgment evidence filed of record; having heard argument of counsel and having considered the relevant legal authorities; and being otherwise fully advised in the premises, the Court finds as follows:

Ada Mazola was injured as a result of a motor vehicle accident that occurred on December 1, 2011 (the “Motor Vehicle Accident”), at which time she was covered by an automobile insurance policy issued by the Defendant, United Automobile Insurance Company (“United Auto”). Plaintiff, Palmetto Lakes Therapy & Rehabilitation Center, Inc. d/b/a Lakes Rehab (a/a/o Mazola, Ada) (“Lakes Rehab”) provided chiropractic and rehabilitative therapy services to Ada Mazola from December 5, 2011 through March 7, 2012, for which it billed United Auto $16,825 pursuant to an assignment of benefits. In response, United Auto paid $7,706 for benefits, utilizing the payment methodology set forth in § 627.736(5)(a)(2), Fla. Stat. The Policy issued by United Auto does not incorporate the permissive payment limitation in §627.736(5)(a)(2), Fla. Stat.

Lakes Rehab filed its Motion for Final Summary Judgment on April 25, 2017. On August 4, 2017, Lakes Rehab filed its Notice of Hearing, scheduling the hearing on the summary judgment motion for November 29, 2017.

United Auto has stipulated that Lakes Rehab’s services at issue were medically necessary and related to the Motor Vehicle Accident. Therefore, the only issue for the Court’s determination is whether Lakes Rehab’s charges were reasonable in price.

On January 22, 2014, Lakes Rehab served its First Request to Produce to United Auto, request no. 14 of which requested that United Auto produce any and all documents upon which it relied to determine the reasonableness of Lakes Rehab’s bill. When United Auto failed to respond or produce the documents upon which it relied to determine the reasonableness of Lakes Rehab’s charges, Lakes Rehab filed motions to compel on April 7, 2014 and again on January 4, 2017.

United Auto’s eventual response to that document request, served June 15, 2017, is as follows:

It is known that Plaintiff’s charges exceed state and federal fee schedules under state/federal worker’s compensation, Tricare and Medicare which are examples of reimbursements other providers that provide the same or similar services are willing to accept in the community. This data and the reimbursement rates relied upon by the Defendant are available to the public as well as opposing counsel through government publications and websites.

When Lakes Rehab moved to compel a better response to the request for production of documents upon which United Auto relied to determine the reasonableness of Lakes Rehab’s charges, United Auto served an Amended Response on November 28, 2017 (the day prior to the date on which the summary judgment motion had been scheduled for hearing), as follows:

Attached please find Workmen’s Compensation Schedule, Tricare and Medicare Fee Schedule, previously provided in Defendant’s Notice of Filing Affidavit of Lizbeth Velazquez in this matter. This data and the reimbursement rates relied upon by the Defendant are available to the public as well as opposing counsel through government publications and websites.

Accordingly, 3 years and 10 months after the request for the production of documents upon which United Auto relied to determine the reasonableness of Lakes Rehab’s bill, the entirety of the documents produced by United Auto were the Workmen’s Compensation, Tricare and Medicare fee schedules. Nothing else was produced and nothing else was referenced as a document upon which United Auto relied to determine the reasonableness of Lakes Rehab’s charges.

Florida Rule of Civil Procedure 1.510(c) provides that “judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law”.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law”. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a], citing Menendez v. Palms West Condominium Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1317a]. Summary judgment is not proper where there is the possibility that a genuine issue of material fact exists. State Farm Mut. Auto. Ins. Co. v. A1A Management Services, LLC d/b/a Roberto Rivera-Morales, MD (a/a/o Farano Muselaire), 25 Fla. L. Weekly Supp. 860a (11th Judicial Circuit (Appellate), October 25, 2017); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, 25 Fla. L. Weekly Supp. 857a (11th Judicial Circuit (Appellate), September 28, 2017); State Farm Mut. Auto. Ins. Co. v. Health & Wellness Assoc. (a/a/o Karlene Scott), 25 Fla. L. Weekly Supp. 220a (11th Judicial Circuit (Appellate), May 24, 2017).

The reasonableness of a medical provider’s charges is an appropriate issue to be determined by summary judgment. State Farm Mut. Auto. Ins. Co. v. Palms MRI Diagnostic Imaging Centers, a/a/o Deanna Sossin, 23 Fla. L. Weekly Supp. 9b (17th Judicial Circuit (Appellate), May 18, 2015); Best American Diagnostic Center (Obdulia Romaguera) v. United Auto Insurance Company, 25 Fla. L. Weekly Supp. 279a (Miami-Dade County, Judge Schwartz, May 1, 2017) and cases cited therein; Comprehensive Chiropractic Center a/a/o Islande Napolean v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 1077b (Broward County, Judge Zaccor, 2016).

Pursuant to §627.736(5)(a)(1), Fla. Stat., in determining a reasonable charge, “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and 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 the reimbursement for the service, treatment, or supply.”

In Best American Diagnostic Center (Obdulia Romaguera), supra, this Court recognized the well-established rule that an owner may testify as to damages and valuation of his property. See, e.g., Reliance Ins. Co. v. Pro-Tech Conditioning & Heating, 866 So.2d 700 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1811c]. The rule is based on the owner’s presumed familiarity with the characteristics of the property, knowledge or acquaintance with its uses and purposes and experience. Id. This rule has been extended to permit owners and corporate representatives to testify as to business valuation. Mercury Marine Division of Brunswick Corp. v. Boat Town USA, Inc., 444 So. 2d 88 (Fla. 4th DCA 1984). See also In re Biddiscombe International, LLC v. Gayheart, 392 B.R. 909 (U.A. Bankruptcy Court, M.D. Tampa 2008) [21 Fla. L. Weekly Fed. B501a] (Citing the traditional practice of allowing an owner of property to testify as to its value. Most courts allow an officer or owner of business to testify as to its value or projected profits without the need to qualify as an expert because such lay opinion testimony is based on a type of personal knowledge — the particularized knowledge that the witness has by virtue of his or her position in the business. Owner of property may testify as to its value without demonstrating any additional qualifications to give opinion evidence).

In support of its Motion for Final Summary Judgment, Lakes Rehab relies upon the affidavit of Richet Cunhill, owner of Lakes Rehab. As an owner, Mr. Cunhill has personal knowledge of the valuation of the services at issue and establishes that Lakes Rehab’s charges in the amount of $16,825 were all the usual and customary charges of Lakes Rehab for similar services provided during the December 2011 through March 2012 time period, and were established based upon the charges of other providers of chiropractic and rehabilitative care in the community of Miami Lakes, Florida; and that the charges of Lakes Rehab were comparable to, and in many cases less than the charges of other providers in the community. Mr. Cunhill further attests that Lakes Rehab regularly and consistently received reimbursements of 80% of its charges from No-Fault insurers prior to the 2008 change in the law that allowed insurers to pay those charges based upon 80% of 200% of Medicare Part B, where the insurer elected the 200% Medicare limits in its policy. Where No-Fault insurers regularly and consistently reimbursed Lakes Rehab based upon 80% of its charges prior to efforts to take advantage of the 200% of Medicare Part B payment methodology set forth in § 627.736(5)(a)(2), Fla. Stat., the only reasonable inference to be drawn is that those No-Fault insurers recognized that Lakes Rehab’s charges were, in fact, reasonable charges — for such insurers would not have reimbursed Lakes Rehab in the amount of 80% of its charges if those insurers did not believe the charges to be reasonable.

In addition to the affidavit of Mr. Cunhill, Lakes Rehab relies upon the affidavit of Krishma Kaur Guliani, D.C., a chiropractic physician who did not provide chiropractic or rehabilitative services to Ada Mazola, but who has reviewed Lakes Rehab’s medical and billing records, and has opined that Lakes Rehab’s charges are reasonable, comparable to the charges of other chiropractic physicians and rehabilitation facilities in the community of Miami Lakes.

Once a party moving for summary judgment presents competent evidence to support its motion for summary judgment, that party is entitled to summary judgment unless the nonmoving party can come forward with competent evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla. 1979). Under Rule 1.510(e), a court may consider evidence at a summary judgment hearing only if it would be “admissible in evidence.”

United Auto has failed to present competent, admissible evidence to rebut Lakes Rehab’s prima facie showing that its charge is reasonable. In response to Lakes Rehab’s Motion for Final Summary Judgment, United Auto relies upon the affidavit of Lizbeth Velazquez, filed 13 days prior to the date on which the summary judgment motion was noticed for hearing. According to its Pretrial Catalogue, Ms. Velazquez is United Auto’s “Litigation Adjuster and Corporate Designee Testifying as to Reasonableness of Pricing/Charges, and Reasonableness Expert Testifying as to Reasonableness of Pricing/Charges.”

Ms. Velazquez’s affidavit and attached curriculum vitae fail to show that she has any experience in the field of medical billing. To the contrary, she has only worked as a claims adjuster/representative/supervisor for PIP insurers.

Pursuant to Fla. Stat. §90.702(1) (2017), the party presenting expert opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data” and the testimony is the product of reliable principles and methods which the witness has applied reliably to the facts of the case. State Farm Mut. Auto. Ins. Co. v. Gables Insurance Recovery, 25 Fla. L. Weekly Supp. 857a (11th Circuit Court (Appellate) September 28, 2017). This Court does not find Ms. Velazquez’ opinion as to the reasonableness of Lakes Rehab’s charges to have been based upon sufficient facts or data, or that her testimony is the product of reliable principles and methods which have been applied reliably to the facts of this case. Ms. Velazquez’s affidavit provides no data to support or substantiate her conclusion that 200% of Medicare is a “reasonable charge.” Other than Medicare Part B, Worker’s Compensation and Tri-Care fee schedules, there is no compilation, no analysis, no spreadsheet, no formula, no average, and no equation to support her position. Here, just as in Millennium Radiology, LLC d/b/a Millennium Open MRI (Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Broward County, Judge Lee, 2013), there is absolutely no evidence of sufficient data utilized to support the ultimate conclusion offered by Ms. Velazquez.

Although Lizbeth Velazquez states at paragraph 6 of her affidavit that she “reviewed various documentation regarding the usual and customary charges and payments accepted” by Lakes Rehab, there is absolutely no supporting detail provided as to what, if any, specific payments were purportedly accepted by Lakes Rehab. Certainly, to the extent that United Auto had relied upon any such documentation, it would have been produced in response to request no. 14 of Lakes Rehab’s First Request to Produce, which requested that United Auto produce any and all documents upon which it relied to determine the reasonableness of Lakes Rehab’s bill. However, the only documents upon which United Auto relied to determine the reasonableness of Lakes Rehab’s charges, as evidenced by United Auto’s June 15, 2017 Response to Plaintiff’s First Request to Produce and United Auto’s November 28, 2017 Amended Response, were the Medicare, Workers Compensation and Tricare fee schedules.

Similarly, to the extent that United Auto actually relied upon such documents to determine the reasonableness of Lakes Rehab’s bill, such documents would have been attached to, or at least specifically identified in Lizbeth Velazquez’ affidavit.

Ms. Velazquez excludes consideration of any amounts above 200% of Medicare in reaching her ultimate conclusion that an amount equal to 200% of Medicare is a reasonable charge. In essence, Ms. Velazquez excludes any data which could cause an increase in the outcome, and clearly, without any methodology, cherry picks only whatever supports her opinion.

The proponent of expert witness opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data.” United Auto did not meet its burden in doing so, because United Auto failed to produce the underlying data or meet its burden to make it available for inspection.

United Auto has provided nothing more than a parroting of the general factors set forth in the PIP statute for determining whether a charge is reasonable. The Court notes that under the statute, an insurer must pay an amount billed if the amount billed is “reasonable.” There is generally not a single amount that is “reasonable,” but rather a range. All Care Health and Wellness Center (a/a/o Sharon Hooks) v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 596a (Miami-Dade County, Judge Lehr, 2015); Florida Injury & Rehabilitation Centers (a/a/o Digiggi Johnson) v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 169a (Miami-Dade County, Judge Marino Pedraza, 2014); Health Diagnostics of Fort Lauderdale, LLC d/b/a Stand-Up MRI of Fort Lauderdale (a/a/o Gertrudis Connell) v. State Farm Mut. Auto. Ins. Co., 24 Fla. L. Weekly Supp. 754a (Broward County, Judge Fry, 2016); Northside Chiropractic (Vera Goodman) v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 869a (Broward County, Judge Kanner, 2016); Millenium Radiology (a/a/o Joanna Martinez) v. State Farm Mut. Auto. Ins. Co., 24 Fla. L. Weekly Supp. 83b (Broward County, Judge Zaccor, 2016); Faye Imaging (a/a/o Victor Martinez) v. State Farm Mut. Auto Ins. Co., 23 Fla. L. Weekly Supp. 182a (Broward County, Judge DeLuca, 2015); Millenium Radiology (a/a/o Rosendo Fernandez) v. United Auto. Ins. Co., 23 Fla. L. Weekly Supp. 368b (Broward County, Judge Dishowitz, 2015); Open Magnetic Scanning d/b/a Windsor Imaging (a/a/o Lorie Gonzalez) v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 871a (Broward County, Judge Feld, 2015); Open Magnetic Scanning (a/a/o Roberta Mastraccio) v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 874a (Broward County, Judge Fishman, 2015); Douglas Rapid Rehabilitation, Inc. (a/a/o Nicole Bowen) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 816a (Broward County, Judge Schiff, 2014); Hallandale Open MRI, LLC (a/a/o Guerda Pierre) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 709a (Broward County, Judge Skolnik, 2014); Millennium Radiology, LLC d/b/a Millennium Open MRI (Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Broward County, Judge Lee, 2013).

If the provider’s charge falls within that range, the insurer must pay it, even if there are amounts lower in the range of reasonableness. Id. Conveniently, however, Lizbeth Velazquez offers an opinion that the amount billed by Lakes Rehab was not only unreasonable, but that an amount equaling 200% of the Medicare Part B fee schedule is the only “reasonable” amount that should have been reimbursed. As United Auto is not permitted to use the “200% of Medicare” methodology unless that amount happens also to be a “reasonable” amount standing on its own, it is crucial that the underlying data to support this conclusion be disclosed. United Auto has had ample opportunity to do so, and has failed in this regard.

By failing to provide any underlying data and specifically excluding any amounts greater than 200% of Medicare, United Auto has not demonstrated to this Court that the testimony is based upon sufficient facts or data, nor that the testimony is the product of reliable principles and methods. Therefore, Ms. Velazquez does not qualify as an expert pursuant to Fla. Stat. §90.702(1) (2017).

To the extent United Auto relies upon Lizbeth Velazquez as its corporate designee and fact witness, the affidavit fails to present admissible evidence which would create a genuine issue of material fact. Essentially, Ms. Velazquez’ opinion is that Lakes Rehab’s charges are unreasonable because Medicare, Workers’ Compensation and Champus TriCare pay less than the amount of Lakes Rehab’s charge. The opinions offered are inadmissible lay opinion testimony. Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived, and usually involves matters such as distance, time, size, weight, form and identity. Best American Diagnostic Center (Obdulia Romaguera), supra; Wide Open MRI (St. Anor Moranci) v. United Automobile Ins. Co., 25 Fla. L. Weekly Supp. 130a (Broward County, Judge McCarthy, March 1, 2017); Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1991) citing Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985); Quantum Imaging Holdings, LLC a/a/o Kathleen Faveur v. United Automobile Ins. Co., 22 Fla. Weekly Supp. 285b (Broward County, Judge Skolnik, 2014); Millennium Radiology, LLC d/b/a Millennium Open MRI (a/a/o Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Broward County, Judge Lee, 2013); See also United Automobile Insurance Company v. Miami Neurology Rehabilitation Specialists a/a/o Maria Broche, 19 Fla. L. Weekly Supp. 799a (11th Cir. App. June 19, 2012)(Testimony of a lay witness is limited to the opinions or inferences which are rationally based on the perception of the witness, and not based on scientific, technical, or other specialized knowledge within the scope of Fla. Stat. §90.702). Thus, as a matter of law, the opinions offered by Lizbeth Velazquez are not rationally based on her own perception and are not the type of lay opinions which can be relied upon by United Auto.

In her affidavit, Lizbeth Velazquez also states that in arriving at her opinion that the charges of Lakes Rehab are not reasonable, she relied upon “negotiations and settlements with PIP providers who submitted their bills to United, and which were paid and accepted at much lower amounts than what was charged” by Lakes Rehab. Fla. Stat. 90.408 provides:

Compromise and offers to compromise. — Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.

(Emphasis added). Settlement discussions are precluded from admission into evidence for the purposes of proving liability or value of the claim based on notions of public policy and fundamental fairness which facilitates settlements. Cornell University v. Hewlett-Packard, Case No. 01-CV-1974 (N.D.N.Y., 2008). Settlements in a context where litigation is threatened, or at least probable, is properly excludable in cases involving valuation because the avoidance of risk and litigation will always be a potential motive for a settlement. Id., citing Rude v. Westcott, 130 U.S. 152, 164 (1888).

In a PIP context, providers may base settlement agreements on varieties of factors and risks such as non-payment and time and expense associated with litigation which are not reliable guides in determining the reasonableness of Lakes Rehab’s charges. Abbot Laboratories v. Sandoz, Inc., 743 F.Supp. 2d 762 (N.D. Ill., 2010). The usual course of settlements does not provide an accurate reflection of what a party is willing to do in an arm’s length transaction. Insight Technology, Inc. v. SureFire LLC, Case No. 04-CV-74-JD (D.N.H. October 8, 2009). Not only is the probative value outweighed by the danger of unfair prejudice, but the Court’s consideration of these settlements would invite “mini-trials” on the facts and reasons for each settlement. Id.

Therefore, based on the Rule and well-established case law, this Court finds Lizbeth Velazquez’ affidavit to be insufficient to create an issue of material fact, as she has relied upon negotiations and settlements with PIP providers, which are not proper summary judgment evidence which create issues of material fact.

It is well settled that in order to take advantage of the more limited reimbursement provided by Fla. Stat. §627.736(5)(a)(2)(f), the insurer must specify that method to the exclusion of any others. Geico General Insurance Co. v. Virtual Imaging Services, Inc. (“Virtual II”), 90 So.3d 321 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D985b] aff’d 141 So. 3d 147, 2013 WL 3332385 (Fla. 2013) [38 Fla. L. Weekly S517a]; DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a]; Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].

United Auto is not permitted to use the “200% Medicare” methodology to limit reimbursement unless it can demonstrate that amount is the maximum reasonable amount under some alternative means. Geico Indem. Co. v. Virtual Imaging Servs., Inc. (“Virtual I”), 79 So.3d 55, 57 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2597a] (“Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount.”). Here, United Auto has not elected the permissive payment methodology in section 627.736(5)(a)(2) and has failed to create a genuine issue of material fact as to the reasonableness of Lakes Rehab’s charge.

It has been widely held that Fla. Stat. § 627.736(5)(a)(2) and Fla. Stat.§ 627.736(5)(a)3 defines the floor for reimbursement for medical charges — despite whether an insurer has elected the permissive payment methodology in its policy. Nationwide Mut. Fire Ins. Co. v. AFO Imaging, Inc., 71 So.3d 134 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1463b]. “Logically, the limiting and permissive fee schedule found in section (5)(a)(2) provides the minimum coverage afforded under the No Fault Law.” Tomoka Diagnostics (Kellye McCall) v. State Farm Mutual Automobile Ins. Co., 19 Fla. L. Weekly Supp. 60a (Volusia County, Judge Sanders, Jr. October 5, 2011)(holding, under Kingsway, State Farm could be found to owe more than 200% of Medicare for 2007 but not less); All Family Clinic of Daytona Beach d/b/a Florida Medical Associates (a/a/o Briana Newby) v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 127a (Volusia County, Judge Feigenbaum, October 7, 2011)(“Once the PIP insurer crosses the proverbial Rubicon and uses permissive fee schedule methodology of Fla. Stat. 627.736(5)(a)2., then the minimum reimbursement a PIP insurer must pay an MRI provider is based on 200% of the schedule for 2007”); First Coast Medical Center, Inc. a/a/o Freddie Jacobs v. State Farm Mutual Automobile Ins. Co., 23 Fla. L. Weekly Supp. 250a (Duval County, Judge Shore, April 21, 2015)(“80% of 200% of the Medicare Part B participating fee schedule is the floor or the minimum that a PIP insurer can reimburse a provider for PIP claims in the State of Florida and in accordance with the No Fault Statute”); Health Diagnostics of Ft. Lauderdale f/k/a Damadian MRI in Pompano Beach PA, d/b/a Stand-Up MRI of Fort Lauderdale a/a/o John Winn v. USAA Casualty Insurance Company, 20 Fla. L. Weekly Supp. 292b (Broward County, Judge Deluca, December 3, 2012)(“200% of the allowable amount under the participating physicians schedule of Medicare Part B for 2007 sets the floor with respect to the minimum reimbursement”).

The factors under (5)(a)(1) are not limitations on reasonable charges and therefore cannot be utilized to suggest that the limit of an otherwise reasonable charge is an amount less than the Medicare Fee Schedule amount set forth in Fla. Stat. § 627.736(5)(a)2. As stated by the Florida Supreme Court in Allstate Insurance Company v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a]:

The “fee schedules” referred to in subsection (a)1. are not within the category of “limitations” referred to in the policy endorsement. In 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.” These fee schedules may be considered in determining the amount of reasonable charges, but they — unlike the fee schedules referred to in subsection (a)2. — do not operate as “limitations” on charges.

Fla. Stat. 627.736(5)(a)(2) operates as a limitation of maximum charges which exists separate and apart from the considerations in Fla. Stat 627.736(5)(a)(1). Id. Thus, any testimony concluding that an amount below 200% of the Medicare part B fee schedule is the maximum reasonable charge is irrelevant and cannot create a question of fact regarding the reasonableness of charges above 200% of the Medicare amount. Because 200% of Medicare operates as the only limitation on reasonable charges, any attempt to limit reasonable charges to an amount lower than the statutory minimum cannot be considered. See Windsor Imaging a/a/o Roneil Morris v. State Farm Insurance, 19 Fla. L. Weekly Supp. 215b (Broward County, Judge Lee, 2011)(200% of the 2007 Non-OPPS Medicare fee schedule is the floor for the least reimbursement under the No Fault Statute’s limited reimbursement alternative). Payment under (5)(a)(1) is not a limitation and does not include the fee schedules referenced in (5)(a)(2).

Accordingly, in determining the reasonable charge for Lakes Rehab’s services, no evidence that limits the maximum reasonable charge to an amount equal to or less than the 200% of the Medicare Part B fee schedule is relevant or admissible.

This Court is mindful of recent 11th Circuit Appellate decisions reversing summary judgments entered in favor of medical providers on the issue of reasonableness of the charges. See, e.g., State Farm Mut. Auto. Ins. Co. v. Health & Wellness Assoc., 25 Fla. L. Weekly Supp. 220a (11th Cir. (Appellate), May 24, 2017) (Affidavit of Dr. Michael Mathesie referenced the Medicare Part B fee schedule as one of numerous factors used to arrive at his conclusions regarding the reasonableness of the charges at issue, demonstrating a genuine issue of fact as to the reasonableness of the medical bills); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc., 25 Fla. L. Weekly Supp. 857a (11th Cir. (Appellate), September 28, 2017) (Affidavit of Darrell Spell that attached numerous records showing that the medical provider’s rates exceeded the 90th percentile of reimbursements for the same services in the community, exceeded Medicare by 1058-1209% and Florida’s Worker Compensation rates by 962-1094% contained enough information for the Court to conclude that the affidavit was based on sufficient facts and data, was the product of reliable principles and methods, and that the affiant had applied the principles and methods reliably to the facts of the case, so as to show the possible existence of a material fact dispute); State Farm Mut. Auto. Ins. Co. v. A1A Management Services, LLC, d/b/a Roberto Rivera-Morales, MD (a/a/o Farano Muselaire), 25 Fla. L. Weekly Supp. 860a (11th Cir. (Appellate), October 25, 2017) (Appellate Court found that the affidavit of Dr. Propper that compared the amounts billed with the range of reimbursement levels in the subject community included sufficient information to suggest the possible existence of a genuine issue of material fact relating to the issue of reasonableness).

As the Medicare Part B, Workers Compensation and Tricare fee schedules were the only documents upon which United Auto relied to determine the reasonableness of Lakes Rehab’s bill and United Auto failed to demonstrate that Lizbeth Velazquez’ opinion is “based upon sufficient facts or data” and that her testimony is the product of reliable principles and methods which Ms. Velazquez has applied reliably to the facts of the case, this Court finds the aforementioned 11th Circuit decisions distinguishable on their facts, and do not require this Court to conclude that a genuine issue as to a material fact exists in this case.

For the reasons stated above, United Auto has not come forward with any admissible evidence which would create a genuine issue of material fact as to the reasonableness of Lakes Rehab’s charge.

Accordingly, it is hereby ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. Final Judgment be and the same is hereby entered in favor of the Plaintiff, Palmetto Lakes Therapy & Rehabilitation Center, Inc. d/b/a Lakes Rehab (a/a/o Mazola, Ada) and against the Defendant, United Automobile Insurance Company, whose address is 1313 NW 167th St. Miami, FL 33169, in the total amount of $853.67 (the difference between 80% of Lakes Rehab’s reasonable charge and the amount paid by United Auto), plus applicable pre-judgment and post-judgment interest, for which let execution issue forthwith. The Court reserves jurisdiction of those issues related to prevailing party attorney’s fees and costs in favor of the Plaintiff.

JIMMY PATRONIS, in his official capacity as Chief Financial Officer of the State of Florida, and the FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Appellants, v. UNITED INSURANCE COMPANY OF AMERICA; THE RELIABLE LIFE INSURANCE COMPANY; MUTUAL SAVINGS LIFE INSURANCE COMPANY; and RESERVE NATIONAL INSURANCE COMPANY, Appellees.

TERYN BEARDALL THOMPSON O/B/O R.O.B., A CHILD, Appellant, v. MARVIN D. JOHNSON, SR. , CLARA FAY JOHNSON AND TRUSTMARK LIFE INSURANCE COMPANY, Appellees.

STEVIE HOWARD, Appellant, v. GREENWICH INSURANCE COMPANY, Appellee.

LAZARO MONTEAGUDO, et al., Petitioners, v. SAUL CIMBLER, Respondent.

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PALMETTO LAKES THERAPY & REHABILITATION CENTER, INC. D/B/A LAKES REHAB (a/a/o Mazola, Ada), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant.

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