27 Fla. L. Weekly Supp. 208a
Online Reference: FLWSUPP 2702LEONInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit is based on affiant’s opinion that 200% of Medicare fee schedule is per se reasonable, not whether provider’s charges are reasonable, and opinion is not based on sufficient facts or data and is not demonstrated to be product of reliable principles and methods — Medicare fee schedule should not be used to determine reasonableness of charges where insurer has not elected use of fee schedules in policy
KENDALL CHIRO LLC, a/a/o Anthony Leon, Plaintiff(s) / Petitioner(s), v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s) / Respondent(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE14019059, Division 70. December 31, 2018. John D. Fry, Judge. Counsel: Wajih A. Shirazi, Dos Santos & Shirazi, L.L.C., Miami, for Plaintiff. Rashad Haqq El-Amin, House Counsel of United Automobile Insurance Company, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT ON MEDICAL NECESSITY,REASONABLENESS AND RELATEDNESS
THIS CAUSE having come on Plaintiff’s Motion for Summary Judgment on Medical Necessity, Reasonableness and Relatedness before this Court on December 11, 2018, and this Court, having heard argument from both counsel, makes the following findings of fact and conclusions of law:
1. After careful consideration, the Court finds no genuine issue of material fact and hereby grants Summary Judgment in favor of the Plaintiff as to reasonableness of charges and against Defendant, United Automobile Insurance Company, “United”.1
2. This is a suit filed for No-Fault Personal Injury Protection (PIP) benefits pursuant to Florida Statute §627.736(2008) for medical chiropractic services rendered by the Plaintiff to the insured, Antonio Leon, from May 16, 2011 through September 30, 2011 as a result of a motor vehicle accident which occurred on May 11, 2011.
3. Plaintiff timely billed a total amount of $9,400.00 for the medical services rendered to Antonio Leon for dates of service from May 16th through September 14th.2 Defendant paid $4,084.68 for these services alleging that the payments were made at 200% of Medicare Part B Fee Schedule in accordance with Fla. Stat. §627.736(5)(a)(1) (2008) and its policy of insurance and that no further payment was due and owing to Plaintiff.
4. Plaintiff filed its Motion for Summary Judgment alleging that the medical services rendered to Antonio Leon were related, medically necessary and reasonable in price in its Motion for Summary Judgment. Plaintiff filed the Affidavit of its Corporate Representative and Treating Physician Dr. Keren Gomez, D.C., the Deposition of United’s corporate representative Marcia Lay and United’s Policy of Insurance and Declarations Page applicable to this claim in support of its Motion for Summary Judgment. United filed the Affidavit of its expert, Dr. Bradley Simon, D.C. in opposition to Plaintiff’s Motion for Summary Judgment.
5. This Court determines that the evidence filed in support of Plaintiff’s motion was legally sufficient to shift the burden of reasonableness of Plaintiff’s charges to United. Pan Am Diagnostic Services, Inc. a/a/o Fritz Telusma v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 200a (Fla. Broward Cty. Ct. 2013) and A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996) 21 Fla. L. Weekly D1677e.
6. This Court finds that Dr. Simon’s Affidavit and opinion on reasonableness fails to establish a disputed issue of material fact for several reasons. Dr. Simon’s Affidavit does not satisfy United’s burden as it is almost exclusively based on his opinion that 200% of the Part B Medicare Fee Schedule was per se reasonable as opposed to whether Plaintiff’s charges were actually reasonable. Dr. Simon attempts to support this flawed opinion in his Affidavit when he states “during the last 4-5 years, nearly all PIP insurers that I have billed for chiropractic services pay at a rate that comports to 200% of the Medicare fee schedule” (paragraph 6 of his Affidavit). According to Dr. Simon, 200% of Medicare is the cap of reasonableness and any charges at more than 200% of the Medicare rate would not be reasonable. Dr. Simon’s opinions on reasonableness would not admissible at trial under Florida Rule of Civil Procedure 1.510(e) as his opinion is not based upon sufficient facts or date nor is it demonstrated to be the product of reliable principles and methods. See State Farm Mutual Auto. Ins. Co. v. Dr. John Calvanese, D.C. a/a/o Anne Gracou, 26 Fla. L. Weekly Supp. 13a (Fla. 17th Cir. Ct. App. 2017) and State Farm Mutual Auto. Ins. Co. v. Aquino Chiropractic Center, P.A. a/a/o Louise Bene, 25 Fla. L. Weekly Supp. 507b, (Fla. 17th Cir. Ct. App. 2017). See also Xtreme Chiropractic & Rehab, Inc. a/a/o Jeena Park v. State Farm Mutual Auto. Ins. Co., 24 Fla. L. Weekly Supp. 881a (Fla. Broward Cty. Ct. 2014).
7. Moreover, Dr. Simon’s opinion directly contradicts the Florida Supreme Court’s opinion that a PIP insurer must clearly and unambiguously elect in its policy which methodology of payment it will use when paying PIP claims. Geico General Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013) 38 Fla. L. Weekly S517a. This is of particular import here as United’s Commercial CA (10/05) version of its policy of insurance does not allow for it to pay the Plaintiff’s bills at 200% of the Part B Medicare Fee Schedule because United has not made any election in this version of its policy to do so. Defendant’s policy at issue states in Section IV under Personal Injury Protection that United will pay “eighty percent of all medically necessary expenses defined as medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury or disease, or symptom. . .” (page 7 of Defendant’s policy).
8. This Court further notes that the most in depth reading of United’s Commercial CA (10/05) policy of insurance proves that United makes absolutely no mention of the Part B Medicare Fee Schedule payment limitations provided in §627.736(5)(a)(2) (2008) that must be specifically elected in order to pay using these payment limitations in accordance with Florida’s PIP Statute. See Geico v. Virtual Imaging, Id.
9. This Court also points to Hialeah Medical Assoc., Inc. a/a/o Ana Lexcano v. United Auto Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Cir. Ct. App. 2014) where the Court opined that “Medicare Fee Schedules are not relevant in PIP cases, and should not be used. In 2008, the legislature allowed such schedules to be used as an alternative reimbursement method that insurers may use if they elect such a fee schedule in their policies as their chosen method of calculating reimbursement”. See also United Automobile Ins. Co. v. Hallandale Open MRI, L.L.C. a/a/o Antonette Williams, 21 Fla. L. Weekly Supp. 399d (Fla. 17th Cir. Ct. App. 2013).
10. As a result and in light of the foregoing, it is hereby ORDERED AND ADJUGED that Plaintiff’s Motion for Summary Judgment as to Reasonableness of Charges is hereby GRANTED and Final Summary Judgment granted in favor of Plaintiff.
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1United stipulated to medical necessity and relatedness at the hearing on Summary Judgment based on Defendant’s Corporate Representative and Litigation Adjuster Marcia Lay’s prior testimony that Defendant would not be contesting relatedness or medical necessity in her deposition taken on September 9, 2015 in this case.
2Plaintiff withdrew its claim for September 30, 2011 (last date of service) as it was not timely billed.