8 Fla. L. Weekly Supp. 505a
Insurance — Personal injury protection — Weight training through personal trainer was necessary palliative treatment for claimant who suffered permanent nerve damage as a result of a motor vehicle accident — No merit to argument that a service must lead to a cure to be compensable under No-Fault Act — Palliative care is available under No-Fault Act upon a showing of permanency — Evidence — Expert testimony is not needed to establish the reasonableness of charges and necessity of medical treatment — Necessity is determined from the claimant’s perspective
Additional ruling in this case at 8 Fla. L. Weekly Supp. 649c
ELIZABETH KOMPOTHRECAS, Plaintiff, v. PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2000 SC 8388 CC. May 15, 2001. Emanuel LoGalbo, Jr., Judge. Counsel: Jeffrey A. Luhrsen, Jodat & Luhrsen, P.A., Sarasota. Joseph Diaco, Jr., Tampa.
FINAL ORDERI. INTRODUCTION
This Personal Injury Protection and Medical Payments insurance case was heard in a Bench Trial on April 23rd and 24th, 2001.1 Plaintiff sought to recover $1350.00 in insurance benefits for fees paid to a personal trainer for instruction regarding weight lifting. Plaintiff claimed the weight training was a necessary endeavor to deal with a chronic injury sustained in an automobile accident on September 12, 1997.
Prior to commencing trial, Plaintiff brought a Motion in Limine to prohibit Defendant from arguing that it had not received proper notice of the claim at issue.2 Defendant agreed that it received a letter from Plaintiff’s attorneys asking that Progressive reimburse Plaintiff in the amount of $1350.00 for personal trainer expenses. As proof of the loss and of coverage, Plaintiff submitted a receipt in the amount of $1350.00 and a letter from the treating physician indicating that the Plaintiff was permanently injured and that the personal trainer expenses were necessary and reasonable.
Before Closing Arguments, Progressive indicated that it had no quarrel with the measure of notice provided, but rather wished to argue that its investigation revealed that the subject services were unnecessary. Counsel for Plaintiff conceded that Defendant was entitled to argue such matters.
Consequently, the issues for trial and disposition by the Court were whether Plaintiff’s injuries were related to the accident, whether the weight training was a necessary endeavor in this particular case, and whether the expense of the weight training was reasonable in amount.II.
FINDINGS OF FACT
The greater weight of the evidence and testimony showed, and this Court finds, the following facts:
1) Plaintiff suffered permanent nerve damage (“radiculopathy”) as a result of a September 12, 1997 motor vehicle accident;
2) Weight training was necessary for this particular Plaintiff under the specific circumstances of this case;
3) The charges at issue ($1350.00) were reasonable under the specific circumstances of this case.
Plaintiff’s treating physician, Dr. Gregory Bronner, testified that Plaintiff had an intervertebral disc problem between the 5th and 6th cervical vertebrae (C5-6) as revealed by an MRI. Records from Plaintiff’s treating neurologist, Dr. Negroski, indicated the same diagnosis. Further documentary evidence from Dr. Negroski indicated that Plaintiff underwent a diagnostic study called an “EMG” and that this test indicated Plaintiff had a condition called “radiculopathy.” Dr. Bronner testified that his clinical findings supported this diagnosis. Plaintiff testified that her symptoms appeared only after the subject car accident.
The defense expert witness, Dr. Kassicieh, agreed that Dr. Negroski’s EMG was an appropriate test to evaluate Plaintiff for radiculopathy. Dr. Kassicieh further agreed that the EMG results were consistent with radiculopathy. Finally, Dr. Kassicieh agreed with Dr. Bronner that radiculopathy is a permanent condition.
Plaintiff and her doctor testified that her injuries arose out of the motor vehicle accident. As fact-finder, the Court finds that Plaintiff’s injuries arose out of the motor vehicle accident and are permanent.
Plaintiff and Dr. Bronner testified that Plaintiff was not a candidate for surgery or other common medicinal remedies due to an unrelated kidney disorder. Therefore, Plaintiff and Dr. Bronner testified that she was instructed to undertake an active rehabilitation program. Plaintiff testified that she began the active exercise program at the behest of her physician and furthermore, that she engaged a professional because she had no experience with weight training. Sitting as fact-finder, the Court finds the above testimony truthful.
Defendant’s medical expert, Dr. Kassicieh, agreed that weight training was appropriate to deal with radiculopathy but he disagreed with Plaintiff’s physician as to the timing of the weight training. As fact-finder, the Court finds that the only meaningful point raised by Defendant’s expert was that Plaintiff’s weight training should have been conducted within one year of the accident (September 12, 1997). That said, Defendant’s expert acknowledged that he recommended a six to eight week period of strengthening exercises on December 30, 1998 — a regimen that would not have concluded until almost a year and half after the accident. For reasons that include but are not limited to the above conflict, the Court cannot accept Dr. Kassicieh’s testimony that all strength training should have been concluded within one year of the accident.3 The Court, sitting as fact-finder, resolves the differences in the expert testimony in Plaintiff’s favor. The Court finds that the weight training through the personal trainer was necessary. Likewise, the Court finds that the $1350 expense was reasonable in amount.II.
LEGAL CONCLUSIONS
A. Ongoing (“Palliative”) Care is Covered
Defendant raised an issue that Plaintiff’s personal trainer expenses were unnecessary because Plaintiff had reached “maximum medical improvement” (MMI) and the weight training would not lead to a cure. The Court finds no support in the No-Fault statute or case law for Progressive’s argument that a service must lead to a cure to be compensable under the No-Fault Act.
Palliative care is available to this Plaintiff upon a showing of permanency. See Marriott Casualty Claims v. Condo, 632 So. 2d 200 ( Fla. 1st DCA 1994); Beacon Transport v . Riley, 491 So. 2d 1220 (Fla. 1st DCA 1986).
B. Necessity Determined From Plaintiff’s Perspective
During the course of the trial, it became apparent that a theme of Defendant’s was the closeness of the relationship between Plaintiff and Plaintiff’s expert witness. It is reasonable to understand Defendant’s reservations. However, while Plaintiff introduced sufficient expert testimony, she was not required to do so. Expert testimony is not needed to establish the reasonableness of charges or the necessity of medical treatment. See Garrett v. Morris Kirshman, 336 So.2d 566 (Fla. 1976); Polaco v. Smith, 376 So.2d 409 (Fla. 1st DCA 1979); Easton v. Bradford, 390 So.2d 1282 (Fla. 2nd DCA 1980); Iowa Nat. Mut. Ins. Co. v. Worthy, 447 So.2d 998 (Fla. 5th DCA 1984) [Footnote 5]; East West Karate Assoc. v. Riqueline, 638 So.2d 604 (Fla. 4th DCA 1994).
The Garrett rule has been expanded. In Dungan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994) the court explained that the question of necessity is determined from the Plaintiff’s point of view. The Dungan court wrote:
Because the cases indicate that “reasonableness or necessity” can be established by lay testimony, it must involve a question of necessity from the perspective of the injured party, rather than from the perspective of a medical expert. See Garrett v. Morris Kirschman & Co., 336 So.2d 566 (Fla. 1976); Albertson’s, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985).
Therefore, the standard for recovery of bills for services rendered under the Florida Motor Vehicle No-Fault Law is determined from the Plaintiff’s perspective.Conclusion
Plaintiff in the case at bar has proved that her injuries arose out of the motor vehicle accident, that the services were necessary, and that the charges therefor were reasonable. Plaintiff shall recover $1350.00, plus interest, costs, and fees.
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1The court has received Plaintiff’s proposed “Final Order” and has examined Defendant’s objections as reflected in a letter dated May 11, 2001. Both the proposed Final Order and the May 11 letter will be filed with the clerk as the court’s exhibits. The court thanks counsel for their submissions.
2The notice issue was recently addressed in an Order by this Court in another case. See Merrick v. Fortune Insurance Company, Sarasota County Case No. 1995 CC 003732 NC, (LoGalbo, J) [8 Fla. L. Weekly Supp. 503].
3There was no occasion explicitly presented to this court in these proceedings or Plaintiff’s proposed order for the court precisely to have found that the testimony of Dr. Kassiciehs was legally either too restrictive as a matter of law given the nature of Florida’s No-Fault Law or immaterial in the first instance.
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