26 Fla. L. Weekly Supp. 601a
Online Reference: FLWSUPP 2607PLANInsurance — 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 is 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
PLANTATION OPEN MRI LLC, Plaintiff(s)/Petitioner(s) v. GEICO INDEMNITY COMPANY, Defendant(s)/Respondent(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE16016034, Division 54. August 3, 2018. Florence Barner, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AS TO EXHAUSTIONTHROUGH INVALID, IMPROPER ORGRATUITOUS PAYMENT
THIS CAUSE came before the Court on July 23, 2018 for hearing of the Plaintiff’s Motion for Summary Judgment as to Exhaustion Through Invalid, Improper or Gratuitous Payment, and the Court’s having reviewed the Motion, the entire Court file and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised of the premises, it is hereby, ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Summary Judgment is GRANTED.
2. Plaintiff moved for summary judgment that PIP benefits are not exhausted. Plaintiff’s motion is premised on the fact that the parties agree 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 maximum 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 percent 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 Florida Statutes §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 Aquino Chiropractic Center, P.A., which is another provider, for CPT code 97010. The record evidence adduced shows that CPT codes 97010, pursuant to the fee schedule, is not payable under Medicare Part B; thus CPT code 97010 must be paid pursuant to the Workers’ Compensation fee schedule maximum reimbursable allowance, which for CPT code 97010 is $10.00. Yet, Defendant allowed $13.30 for CPT code 97010, which is more than the maximum reimbursable allowance under the schedule of maximum charges.
4. Plaintiff submitted that Defendant voluntarily overpaid for CPT codes 97010, which overpayment should not count against the PIP policy limit of $10,000.00. Plaintiff submits that the voluntary overpayment is gratuitous and that the overpayment led to Defendant alleging premature exhaustion.
5. 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 $10,000.00 policy, thereby resulting in a premature exhaustion and diminishing treatment paid under the policy on other valid claims, like Plaintiff’s claim in this case.
6. This Court rejects the argument that the ruling in Northwoods Sports Med. & Physical Rehab., Inc. v. State Farm Mut. Auto. Ins. Co., 137 So. 3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a] changes the above analysis.
7. Plaintiff presented several cases which establish that gratuitous payments by an insurer cannot be counted against the policy limits. See 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] (A unanimous three judge panel ruled 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); Coral Imaging Services a/a/o Virgilio Reyes v. Geico Indemnity Insurance Company, 955 So. 2d 11 (Fla. 3rd DCA 2006) [31 Fla. L. Weekly D2478a] (holding that Geico’s payment of late bills must be characterized as gratuitous and should not be considered as having been made against the limits of the PIP policy); State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, M.D. a/a/o Thomas Mayeko-Coklee, 24 Fla. L. Weekly Supp. 101a (Fla. 11th Cir. App. May 10, 2016)(affirming trial court’s finding of non-exhaustion and remanded that gratuitous payments made to the insured and other medical providers shall be deducted from policy limits); Sea Spine Orthopedics Institute, LLC a/a/o Alison Anderson v. State Farm Mut. Auto. Ins. Co., Case No. 15-7602 COCE 55 (Broward Cty Ct. August 3, 2017)(Kanner, J.)(holding that State Farm’s payment above the Participating Physician’s Fee Schedule was gratuitous and must be deducted from total amount paid by Defendant).
8. Plaintiff also presented two county court decisions dealing with the same issue before this Court. See Plantation Open MRI a/a/o Fabreece Ductan v. Geico General Ins. Co., Case No. 16-15816 COCE 53 (Broward Cty. Ct. Nov. 15, 2016)(Lee, J) [26 Fla. L. Weekly Supp. 603a]; see also Advanced Orthopedics & Pain Management, P.L. a/a/o Hans Rohrer v. Geico Indemnity Co., Case No. 16-3939 COSO 61 (Broward Cty. Ct. Oct. 11 2016)(Backman, J.). In both these cases, the Court determined that Defendant had improperly overpaid CPT code 97010, resulting in gratuitous payments that could not be counted against the $10,000.00 policy limits.
9. In opposition to Plaintiff’s Motion, the Defendant filed the affidavit of its adjuster, Melissa Blitz. The affidavit states that “Geico determined $13.30 was a reasonable reimbursement amount. To determine this reasonable amount, GEICO utilized a Relative Value Unit (“RVU”) analysis, in reimbursing the CPT code 97010.”
10. Defendant argues that since an “RVU” exists for CPT code 97010, this is evidence that the code is reimbursable under Medicare and therefore Geico’s reimbursement at $13.30, rather than $10.00 under the Worker’s Compensation Fee Schedule is correct.
11. Plaintiff in turn presented the Court with the National Physician Fee Schedule Relative Value File, which explains that each CPT code is accompanied by a “status code.” A status code indicates whether the code is in the fee schedule and whether is it separately payable if the service is covered. Only RVUs associated with the status codes of “A”, “R”, or “T”, are used for Medicare payment.
12. The status code for CPT code 97010 is “B”, which is a “Bundled Code.” As explained by Medicare, payments for covered services are always bundled into payment for other services not specified. If RVUs are shown, they are not used for Medicare payment. The record evidence therefore establishes that although an RVU may exist for CPT code 97010, the service itself is not reimbursable under Medicare for the year 2013 and 2007.
13. Pursuant to F.S. 627.736(5)(a)(1)(f) and Defendant’s own policy, reimbursement is to be made at 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B . . . However, if such services, supplies, or care is not reimbursable under Medicare Part B . . . the insurer may limit reimbursement to 80 percent of the maximum allowable allowance under workers’ compensation.
14. The Court finds that CPT code 97010 is not reimbursable under Medicare Part B and therefore, regardless of whether an RVU exists, the proper reimbursement for this service is $10.00 under the Workers’ Compensation fee schedule.
15. For these reasons and the record and arguments, Plaintiff’s Motion is GRANTED and the Court finds that PIP benefits are not exhausted and that Plaintiff is entitled to additional PIP benefits.
