28 Fla. L. Weekly Supp. 165a
Online Reference: FLWSUPP 2802GOODInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Use of workers’ compensation fee schedule to cap payment — Motion for summary judgment on plaintiff’s claim of underpayment denied — Question certified: When a PIP insurer has elected the Medicare fee schedule limitation permitted by Florida Statute §627.736(5)(a)1, which provides that the insurer may limit reimbursement to “200 percent of the allowable amount under [t]he participating physicians fee schedule of Medicare Part B,” and the “allowable amount” under the fee schedule is not specified in a general amount but instead must be determined on an individualized basis, is the PIP insurer entitled to limit the reimbursement to 80 percent of the workers’ compensation fee schedule?
GOOD HEALTH MEDICAL REHAB, INC. (a/a/o Carole Dieudonne), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 18-9322 COCE 53. May 6, 2020. Robert W. Lee, Judge. Counsel: Matthew Emanuel, Sunrise, for Plaintiff. Michael Walsh, Fort Lauderdale, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT REGARDING UNDERPAYMENTandCERTIFICATION TO THE FOURTH DISTRICT COURTOFAPPEAL AS A QUESTION AFFECTING THE UNIFORMADMINSTRATION OF JUSTICE, PURSUANT TO FLA. STAT.§34.017(1)(b), RULES 9.030(b)(4) and 9.160, FLA. R. APP. P.1
THIS CAUSE came before the Court on May 4, 2020 for hearing of the Plaintiff’s Motion for Summary Judgment Regarding Underpayment, 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 in the premises, the Court finds as follows:
Background: This case involves an issue currently arising in PIP cases throughout the State. Currently, in this Court’s view, there is no controlling precedent on the horizon. In light of the five-year statute of limitations pertaining to PIP cases, as well as the continuing practice of PIP parties to challenge legal rulings even when a Circuit appellate decision is issued,2 this Court respectfully submits that this is an issue that the District Court of Appeal could resolve and save a substantial amount of judicial labor in the courts below. See State Farm Mutual Automobile Ins. Co. v. CC Chiropractic LLC, 245 So.3d 755, 760 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D583a] (reminding county courts that the certification process is a method to seek precedent needed for the orderly administration of justice on issues that have statewide application).
This case involves the same legal issue that this Court addressed on Good Health Medical Rehab, Inc. (a/a/o Thelizia Belfleur) v. State Farm Mutual Automobile Insurance Company, Case No. 18-9214 COCE 53 in which this Court on February 11, 2020 entered its Order Denying Plaintiff’s Motion for Summary Judgment Regarding Underpayment. In the instant Motion, the Plaintiff urges that this Court should recede from its prior ruling based on a review of the development and legislative history of the statute at issue in these cases, an argument not made in the prior case.
As noted on page 4 of the Court’s proper ruling,
In sum, under Florida PIP law, an insurer must pay a medical charge that is “reasonable,” as long as the service is medically necessary and related to the accident. Fla. Stat. §627.736(1)(a) (2017). However, as pertains to the issues in this case, an insurer is permitted to limit its reimbursement by using a “schedule of maximum charges,” which is equivalent to “200 percent of the allowable amount under [t]he participating physicians fee schedule of Medicare Part B.” Id. §§627.736(5)(a)1 & 5(a)1f(I). If, however, the medical service “is not reimbursable under Medicare Part B,” then “the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation.” Id. §627.736(5)(a)1. Therefore, if a medical service is “reimbursable under Medicare Part B, as provided in this sub-subparagraph” an insurer cannot cap its payment by using the workers’ compensation fee schedule. In the instant case, however, although CPT code 97039 is reimbursable under Medicare Part B, CPT code 97039 is not reimbursable under “Medicare Part B, as provided in this sub-subparagraph,” the operative language of the current statute. Otherwise, the phrase “as provided in this sub-subparagraph” has no meaning. See Brown & Brown, Inc. v. Gelsomino, 262 So.3d 755, 759 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D2642a] (the “court is required to give effect to every part of a statute if possible and avoid construing any portion of a statute as mere surplusage”).
In the Court’s view, this issue is dictated by the plain meaning of the statute, without need to review legislative history. While the statute may be cumbersome to read and difficult to construe, it does not mean that the statute is ambiguous. Cf. Eagle American Ins. Co. v. Nichols, 814 So.2d 1083, 1085 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D596a] (just because a contract is complex does not mean it is ambiguous). Because the statute is not ambiguous, the legislative intent as discerned from a review of legislative history is not relevant. Department of Revenue v. Bank of America, N.A., 752 So.2d 637, 641 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D118a]; Coleman v. Coleman, 614 So.2d 532, 533 n.2 (Fla. 4th DCA 1993); W. Reynolds, Judicial Process §5.6 (1980) (under the plain meaning rule, “resources other than the statute are not to be consulted unless the language of the statute is ambiguous”). Therefore, while there may be some persuasive appeal in Plaintiff’s argument, this Court concludes that there is no legal reason to recede from its prior decision. Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’ Motion for Final Summary Judgment is DENIED.
However, because of the high volume of cases pending with this issue throughout the State of Florida, and the lack of a controlling precedent that would ameliorate the substantial amount of judicial labor given to this issue, the Court certifies the following question to the Florida Fourth District Court of Appeal as a question affecting the uniform administration of justice:
When a PIP insurer has elected the Medicare fee schedule limitation permitted by Florida Statute §627.736(5)(a)1, which provides that the insurer may limit reimbursement to “200 percent of the allowable amount under [t]he participating physicians fee schedule of Medicare Part B,” and the “allowable amount” under the fee schedule is not specified in a general amount but instead must be determined on an individualized basis, is the PIP insurer entitled to limit the reimbursement to 80 percent of the workers’ compensation fee schedule?
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1Pursuant to Rule 9.160(b), any appeal of the Court’s decision in this matter must be filed in the Fourth District Court of Appeal, and not the Circuit Court.
2See J. Sebastien Rogers, The Chasm in Florida Appellate Law: Intra-Circuit Conflicting Appellate Decisions, FLA. B.J., Apr. 2018, at 52-55.
