STATE FARM MUTUAL

v.

GABLES INSURANCE COMPANY

Before: WALSH, TRAWICK, and SANTOVENIA, JJ.

Filing # 114690538 E-Filed 10/08/2020 05:19:06 PM [*2] Page² of 11 PER CURIAM Maria Manyoma (“Manyoma”), an insured of State Farm, was allegedly injured in an automobile collision and received treatment from All X-Ray Diagnostic Services Corp. (“All X-Ray”). Manyoma assigned her benefits under her State Farm Policy (the “Policy”) to All X-Ray, which subsequently assigned the benefits to Gables. Gables filed suit alleging that State Farm failed to pay personal injury protection (“PIP”) benefits claimed due under the Policy for three x-rays (cervical, thoracic and lumbar). State Farm denied that the x-rays were medically necessary, related or that the charges were reasonable. The trial court granted an Amended Motion for Summary Judgment filed by Gables on the issues of medical necessity, relatedness and reasonableness. After a motion for rehearing by State Farm was denied, the trial court entered a Final Judgment, awarding damages to Gables in the amount of $2,055.48, plus post judgment interest at the rate of 4.75% in addition to attorneys’ fees and costs. This appeal followed. The standard of review for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.” Id. “[T]he court must draw every possible inference in favor of the party against whom a summary judgment is [*3] Page³ of 11 sought.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Id. The resolution of this case depends mainly on the sufficiency of the parties’ opposing Affidavits. Florida Rule of Civil Procedure 1.510(e) requires that affidavits; must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein.

Id.; see also State Farm Mut. Auto. Ins. Co. v. Pembroke Pines MRI, Inc., 171 So. 3d 814, 816-17 (Fla 4th DCA 2015) (citations omitted). In support of its Motion for Summary Judgment, Gables relied upon the Affidavit of Jose A. Pelayo, D.C. (“Dr. Pelayo”), regarding medical necessity and relatedness. In opposition, State Farm filed the Affidavit of Bradley Simon, D.C. (“Dr. Simon”). We find that both Dr. Pelayo’s Affidavit and Dr. Simon’s Affidavit are based upon their personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that they are competent to testify to the matters relating to medical necessity and relatedness.

NECESSITY AND RELATEDNESS

“Medically necessary” refers to a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is: [*4] Page 4 of 11 (a) In accordance with generally accepted standards of medical practice; (b) Clinically appropriate in terms of type, frequency, extent, site, and duration; and (c) Not primarily for the convenience of the patient, physician, or other health care provider. Section 627.732(2), Florida Statutes (2007) Dr. Pelayo attests that he has been a chiropractic physician for more than 26 years, that he has treated patients injured in automobile accidents, and that he has reviewed and evaluated medical records including diagnostic radiological studies, magnetic resonance imaging and chiropractic treatment. Dr. Pelayo indicated that he reviewed the medical file for Manyoma, and that based upon the information reviewed, his skill and experience, he believed that the diagnostic studies ordered by the treating physician and performed on Manyoma were medically necessary and related to the injuries caused by the subject automobile accident. We find that Dr. Pelayo’s affidavit presented a prima facie case as to medical necessity and relatedness. Once competent evidence is tendered, the opposing party must come forward with sufficient counterevidence to reveal a genuine issue of material fact. See Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). State Farm countered Dr. Pelayo’s affidavit with the affidavit of Dr. Bradley Simon. Dr. Simon averred that he was a Doctor of Chiropractic with fourteen years of experience in the South Florida community, including Miami-Dade County. His practice consists of chiropractic care and therapy to patients, and he provides [*5] Page 5 of 11 Independent Medical Examinations and peer reviews to medical vendors. He further indicates that he provides opinions on reasonableness, relatedness and medical necessity of chiropractic treatment for cases in litigation. Dr. Simon stated that based upon his review of Manyoma’s clinical records, as well as his background, education, and clinical experience, the x-rays in question were neither medically necessary nor related. He premised his opinion on several facts. First, the onset of pain from a dislocation or fracture is immediate, but Manyoma did not seek treatment for five days. Second, there was no indication or record of any suspicions of dislocation or fracture. Third, x-rays are used to diagnose a dislocation or fracture. Finally, Manyoma received therapy before the x-rays were taken. In Dr. Simon’s opinion, each of these facts runs counter to a conclusion that the x-rays were medically necessary or related. We find that Dr. Simon’s affidavit is sufficient to raise genuine issues of material fact which preclude the entry of summary judgment regarding the issues of medical necessity and relatedness.

REASONABLENESS

Reasonableness “is a fact-dependent inquiry determined by consideration of various factors.” Geico General Insurance Company v. Virtual Imaging Services, Inc. 141 So. 3d 147, 155-56 (Fla. 2013). Section 627.736(5)(a), Florida Statutes (2016) provided, in part, that: [*6] Page 6 of 11 In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

Despite State Farm’s not electing to use the Medicare Part B Fee Schedule in its policy and limiting its reimbursements under section 627.736(5)(a)(2), it is not precluded from having an opportunity to litigate the reasonableness of Gables’ bill under section 627.736(5)(a)(1). See Geico Gen. Ins. Co. v. Virtual Imaging, 141 So. 3d 147,155-56 (Fla. 2013); see also Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, LLP, 202 So. 3d 437, 438 (Fla. 5th DCA 2016). Under section 627.736(5)(a)(1), the Medicare B Fee Schedule may be utilized as a “factor” in determining reasonableness of the fees submitted for payment. Gables had the burden of establishing that the charges for the services rendered were reasonable. See State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002); see also Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998). Gables relied upon the Affidavits of Sabino Ferro (“Ferro”), the Senior Corporate Officer at All X-Ray.¹ Ferro executed two affidavits, [*7] Page 7 of 11 one regarding the reasonableness of All X-Rays’ charges, and the other which attached a copy of All X-Rays’ CMS 1500 Form along with a copy of the bill for the services rendered to Manyoma. Ferro stated that he is familiar with the range and rate of charges for radiological services provided in the area. He maintained that All X-Ray’s charges have been the same for years; they are based upon the prevailing amounts charged in the community by similarly credentialed providers; and they are usual and customary, taking into account all regulatory licensing and commercial concerns recognized and permitted by the American Medical Association and recognized in the industry. Additionally, Ferro stated that prior to 2008 the charges were never characterized as “unreasonable” or “excessive.” He continued by saying that the amount received was significantly lower than the charges generated by All X-Ray. Ferro concluded that the amounts received as per the Medicare Part B schedule were not reasonable and not reflective of the usual and customary charges by providers for such services in the Miami-Dade County area. State Farm relied on Dr. Simon’s affidavit regarding reasonableness. Dr. Simon attested that in formulating his opinion on reasonableness he relied on his 14 years of experience providing chiropractic care; the usual and customary charges and rates accepted by his practice; the usual and customary charges in the market; and reimbursement rates for Miami-Dade County. Dr. Simon stated that he reviewed [*8] Page 8 of 11 thousands of insurance claims forms, including x-ray services in Miami-Dade, making him familiar with what other providers charged. He also reviewed explanations of review issued by major insurance carriers and was familiar with what insurance companies reimbursed for the same or similar services. Dr. Simon said that his practice has accepted reimbursements from PIP insurers, Medicare, Medicaid, Workers Compensation, HMO insurers, PPO Insurers, and out of pocket cash payments made by patients. He listed numerous insurance companies that since 2008 pay 200% of the amounts listed in the Medicare Part B schedule. Dr. Simon concluded that fees billed in this case were excessive and unreasonable regarding price. Both Ferro’s and Dr. Simon’s affidavits satisfy the requirements of Florida Rule of Civil Procedure 1.510. Both affidavits are premised on personal knowledge; provide the basis for their knowledge; set forth facts admissible in evidence; present statutory factors; reference various fee schedules; and are based upon their experience and training. Neither affidavit is conclusory or legally insufficient. Since both affidavits provide the necessary predicate for their opinions, the affidavits are not framed solely in terms of legal conclusions. Additionally, given these predicates, neither affidavit can be disqualified based on section 90.702, Florida Statutes [*9] Page 9 of 11 (1978).2 Finally, “Rule 702 does not distinguish between “scientific” knowledge and “technical” or “other specialized” knowledge, but makes clear that any such knowledge might become the subject of expert testimony.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 138 (1999).3 Skylake Medical Center, Inc., a/a/o Giancarlo Avila, 27 Fla. L. Weekly Supp. 856a (Fla. 11th Cir. App. 2019) (Trawick, J., concurring), quoting State Farm Mut. Auto. Ins. Co. v. Florida Wellness & Rehab. Ctr., Inc., 25 Fla. L. Weekly Supp. 5a (Fla. 11th Cir. Ct. 2017), quoting State Farm Mut. Auto. Ins. Co. v. Sunset Chiropractic & Wellness, 24 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. 2017), State Farm has cited no case to support a conclusion that reasonableness can never be decided at summary judgment. Indeed, Florida Rule of Civil Procedure 1.510(a)³ An expert may testify to an opinion that is not based upon “firsthand knowledge or observation” as long the expert has a reliable basis in the “knowledge and experience of his discipline” and that an expert “might draw a conclusion from a set of observations based on extensive and specialized experience.” Kuhmo, 526 U.S. at 148, 156. [*10] Page 10 of 11 permits a party seeking to recover on a claim to move for summary judgment on all or any part thereof. “‘All or any’ inherently includes reasonableness, and thus, it cannot be said that reasonableness can only be resolved by a jury.” State Farm Mutual Automobile Insurance Company v. Gables Insurance Recovery, Inc., 25 Fla. L. Weekly Supp. 857a (Fla. 11th Cir. Ct. Sept. 28, 2017), cert. dismissed, Case No. 3D17-2311 (Fla. 3d DCA Dec. 2017); State Farm Mutual Insurance Company v. Roberto River-Morales, M.D. a/a/o Joseph, 26 Fla. L. Weekly Supp 454a (Fla. 11th Cir. Ct. July 17, 2018) (“Nevertheless, the fact-specific nature of a reasonableness determination generally makes it a jury question.”). When a record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party, and summary judgment must be denied. See Dellatorre v. Buca, 211 So. 3d 272, 273 (Fla. 4th DCA 2017); Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 167 (Fla. 3d DCA 2010). While Gables presented a prima facie case on the issues of medical necessity, relatedness and reasonableness, State Farm raised genuine issues of fact precluding the entry of summary judgment. Accordingly, the Final Judgment is hereby REVERSED and REMANDED for further proceedings consistent with this opinion. “Appellee’s Motion for Appellate Attorneys [sic] Fees,” is hereby DENIED and “Appellant’s Motion for Appellate Attorney’s Fees” is conditionally GRANTED upon the trial court’s [*11] Page 11 of 11 determination at the conclusion of the case that Appellant is entitled to attorneys’ fees pursuant to section 768.79, Florida Statutes (1997). WALSH and SANTOVENIA, JJ. concur.