Answer: STATE FARM MUTUAL ATUOMOBILE INSURANCE COMPANY V CHARLES S THEOFILOS MD PA

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                                IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA.

APPEAL CASE NO.: 50 2011-AP-000009 XXXXMB
COUNTY CASE NO.: 50 2008-SC-013521 XXXXMB RJ

STATE FARM MUTUAL AUTOMOBILE

 

 

 

INSURANCE COMPANY, 7
Appellant, az) =
vs fT a
. WT oz
CHARLES S. THEOFILOS, M.D., P.A. Os
as assignee of DEBRA WELSH, a
Appellee.
ANSWER BRIEF OF APPELLEE
Appeal from the County Court of the Fifteenth Judicial
Circuit in and for Palm Beach County, Florida
Case No.: 50 2008-SC-013521 XXXXMB RJ
THOMAS ANDREW PLAYER

Florida Bar No.: 140805
WEISS LEGAL GROUP, P.A.
698 North Maitland Avenue
Maitland, Florida 32751
Telephone: (407) 599-9036
Facsimile: (407) 599-3978

February 27, 2012TABLE OF CONTENTS

Table of Cases and Statutes 0.0... ccssssssssssssesscessessssesscssssceesessesscseessseeseseensaeenssesseses wii

 

1 Preface...... 0... ceeeec cece eee ce cea ee reece nee reese ee ren estan a eee te ea na ee seen a aes 1
TI. Issues on Appeal.........sssssesssssssssesesscsscsssescsesesecsescscscareesescecacsescacsenseneseseseaices 1
III. Statement of the Case and Facts......... 3d
TV. Summary of the Argument..............ccccccesesceceeeeeceeeeseneeeeseaneeeeeeeeees 7
V.  ALQUMENE... oe ee cece cere ccenecceeeeeeaeceee essen eeceeeceeneeenaseeneeceaneeeenesess 8

A. — Standard of Review............cccecccsececeeecceeneeeeeeseseeeennesesteeeenees 8

B. _ The Final Judgment must be affirmed because the
Appellant has failed to present an adequate
Tecord On appedl............ccccseeeeesseeeeeeeeeeeeesesaeeeeeeesanereresnen eres 9

C. The Final Judgment must be affirmed because the
Appellant’s arguments are predicated on the Florida
No-Fault Law which is inapplicable to Appellee’s

 

claim for medical payment benefits................c:0seseeeeeeneneeeeeeeees 11
D. The Final Judgment should be affirmed because the
trial court correctly found that the independent reading
of a pre-existing MRI film by a neurosurgeon in
conjunction with evaluation and management of a patent
is a separately billable activity under the CPT guidelines................ 16
E. The Final Judgment should be affirmed because the trial
court correctly held that Theofilos was not required to
produce a separate report of his independent evaluation of
the MRI films or, ifrequired, he substantially complied..................40 28
VI. Conclusion o...escessssessessesseesessesssessesseseeseeseeseessssessssssssessessessesscsseeseeneeneanense 40
Certificate Of Service ...........csscessessessessessssssssesesssesessseeseesessresesecsseessesesnessesenestenenesses 41
Certificate of Font Compliance..............c.ccssecceeeeseseceenessensceeeeccaneeseneeeeey 42

iTABLE OF CITATIONS

 

 

CASE PAGE
Aetna Casualty & Sur. Co. v. Huntington Nat'l Bank,

609 So. 2d 1315 (Fla. 1992)... cece cscs e eee e eee eee ee ee earn eeeteeaeeeeetes 22
Allied General Contractors, et al, v. Superior Asphalt Co.,

397 So. 2d 727 (Fla. Sth DCA 1981)......0.....ceeeeeeececeneereceeeeeeeeeeceaaeeeneeeenees 33
Allstate Ins. Co. v. Rudnick,

761 So. 2d 289, 291 (Fla. 2000)...........eceeeeseeecceceeeeeceeeeeceeceaeesereneeeeeeneenes 14
Am, Bankers Life Assurance Co. of Fla. v. Williams,

212 So. 2d 777, 778 (Fla. Ist DCA 1968).............eceeeeeeee Peledesesbededeceeboteae sh 26
Applegate v. Barnett Bank of Tallahassee,

377 So. 2d 1150, 1152 (Fla. 1979)...........cseeceeceeeeececneeceeeesetsneeeceneees 9, 10, 11
Austin v. State ex rel. Christian,

310 So. 2d 289 (Fla. 1975)...... cc seeceeseeeecceeeneceeeeeeeeseneeeeeseeeeeceasseeae ee eteen 32
Auto-Owners Ins. Co. v. Anderson,

756 So, 2d 29, 34 (Fla. 2000)........... eeeeeeeeseeeceeeeeere cee eeseeneeccceeeneseeeeaeees 15
Automatic Data Processing v. Scarberry,

412 So. 2d 927, 928 (Fla. Ist DCA 1982)...........eceeeseeee ce eeeceeeneeeceneaeeetane eee 4
Bei v. Harper,

475 So. 2d 912, 914 (Fla. 2d DCA 1985)...... 0c eececseeee cee neetee ane eecenenneeeeanees 10
Bolden v. State Farm Mut. Auto. Ins. Co.,

689 So. 2d 339, 342 (Fla. 4th DCA 1997)... ee cece eeeeecceeeeereee ee eseeaeeeees 14
City of Clearwater v. Sch. Bd.,

905 So. 2d 1051, 1057 (Fla. 2d DCA 2005)...........ccsceeecseteeeseneeerceeesneeeeeres 13
City of Tampa v. Thatcher Glass Corp.,

445 So. 2d 578, 579 (Fla. 1984).......cccccccseeeeeeccnseeercceeeeeesceeeeeneeceeeeasneeenes 22

iiCompton v. Compton,
701 So. 2d 110 (Fla. Sth DCA 1997)..........cccceccceeecseeeeeceneeeceueeeeeeeeeeeeneeseees ll

Daniel J. Madock (a/a/o Lynn Kus) v.
Progressive Express Ins. Co., 11 Fla. L. Weekly

 

Supp. 408b (Fla. 13th Cir. Ct. March 3, 2004)..........:ccseeceeeeeseseeeenseenseeeeanees 20
Daniels v. Fla. Dep't of Health,

898 So. 2d 61, 64 (Fla. 2005)..........ccceeeceseeceeeeeeeecceeeceeseeeeseneeeeereeeesereeen 26
Dade County Sch. Bd. v. Radio Station WOBA,

731 So. 2d 638, 645 (Fla. 1999)........ccsccsecesseceseceeeesee sree eseeeeeseeeerssneeeeenee 12
Deltona Corp. v. Fla. Pub. Serv. Comm'n.,

220 So. 2d 905,907 (Fla. 1969).........ccccccceeeeeecesseeeeeeaeereseneneeeeeeseeeeeneg ieee 22
Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co.,

TLL So. 2d 1135, 1140 (Fla. 1998)...........cccceeeceeeeeeeceeeeeeeee eee eeensneceeeeee 15, 16
Department of Highway Safety and Motor Vehicles v. Profis,

813 So. 2d 185 (Fla. 2d DCA 2002)...........ccescceceeeeeeeeeereeeeneeetsesenesaeeeeeenes 35
Department of Highway Safety and Motor Vehicles v. Russell,

793 So. 2d 1073 (Fla. Sth DCA 2001)...........cceceeeceeeeeceteseeneseeeeneeeneeeeenaees 35
Devin v. City of Hollywood,

351 So. 2d 1022 (Fla. 4th DCA 1976).......... cece eeecce eee eee eee seeeeeeeeteeeneeeeees 19,21
Diaz v. State,

768 So. 2d 1231 (Fla. 3d DCA 2000)......... cc eececceeeecce se eeeeeeeeeeeseeeaneeeeesenanes 35
Dorsey v. State,

402 So. 2d 1178 (Fla. 1981)..........cceeeceeeceeeeccueeeuseceeeeenasseuerseneeeeseeeeeeeenes 32
Ellsworth v., Ins. Co. of North America,

508 So. 2d 395 (Fla. Ist DCA 1987)......... 0. cece ceeee cece nese eccceeeneeeeeteneeensnnenes 15
Ezell-Tillerton Inc. v. A.K.T.,

234 So. 2d 360 (Fla.1970).............cccceeeeeeece cee eeeeeeteeeceenaeneeeeeeeeeeeeneeeeeeeees 33

iiiFla. Med. & Injury Ctr., Inc. v. Progressive Express Ins. Co.,
29 So. 3d 329 (Fla. Dist. Ct. App. Sth Dist. 2010)........::.:sscseeeeeseeereeeereeeeeeees 33

Gary H. DiBlasio, MD, PA (Cheryl Baumann) v.Progressive

Express Insurance Company, 14 Fla. L. Weekly Supp.

1027a (Fla. 15th Cir. Ct. August 13, 2007)..............:eeee cess cece ee eee 16, 17, 18, 19,
21, 22, 23, 25

Gary H. DiBlasio, MD, PA (Cheryl Baumann) v. Progressive
Express Insurance Company, 13 Fla. L. Weekly Supp.

179a (Fla. Palm Beach Cty. Ct. July 15, 2005)..........ccceeeceeeseeeeeeeeeeeeeeeeeeeneee 18
Giarrusso v. Amica Mut. Ins. Co.,

564 So. 2d 160 (Fla. 4th DCA 1990)....... cece ee eceee eee s sees ee eee eeeseaeeeer eee 13
Gonzalez v. State,

941 So. 2d 1226 (Fla. Sth DCA 2006)...........:ceesecceseeseteeseeeeeeeseeneeeeesennanee 22
Goonan v. Goonan,

852 So. 2d 361 (Fla. Sth DCA 2003)..........ceeecseeeeeeeeeeecseeeceneereeneeetenerteneees 10
Hartford Fire Ins. Co. v. Hollis,

58 Fla. 268, 50 So. 985 (1909).........seccsseeccsecceeseeeseeteeasccesecseeereseeeesen essen, 25
Hartnett v. Southern Insurance Company,

181 So. 2d 524 (Fla. 1965)..........cccccceesececeeeeeesece eee eereceeeaeeneeeeennesseeeeeeenes 15
Holly v. Auld,

450 So. 2d 217, 219 (Fla. 1984)......... cc eeeeccceenseecceceeeeeceeeeneeeteeeeenen sees 22, 26

Hoover v. Sprecher,
610 So. 2d 99 (Fla. Ist DCA 1992)........eceeeeeccsseceeeceeeeeneeceeeeeeneetenneean sees 11

Horizons Rehabilitation, Inc. v. Health Care And Retirement
Corp., 810 So. 2d 958 (Fla. Sth DCA 2002)...........cceeseceeeceeeeceneeceeneeceaseceae een 8

Island Harbor Beach Club, Ltd. v. Department of Natural
Resources, 471 So. 2d 1380, 1381 (Fla. Ist DCA 1985)............cecceeece eevee cee ee eee! 4Lee Cnty. Electric Coop., Inc. v. Jacobs,

 

820 So. 2d 297, 303 (Fla.2002)............sseeeeceeseeeeeeeeeceeeeeeeceeeaaeeeseeeesseeesseee 26
Lindsay v. Allstate Ins. Co.,

561 So. 2d 427 (Fla. 3d DCA 1990).......... cc eeeeec eee eeeeensece ee eeeeeeuenenesesetees 21
“Mahla v. State,

383 So. 2d 730 (Fla. Ist DCA 1980)........... ce eeeeeeeneseseeeceee seen eeeee essen eneeenens 33
Malu v. Sec. Nat'l Ins. Co.,

898 So. 2d 69, 73 (Fla. 2005)...... 10. eeececeesececerseeseeaaeeecceeeeeeceeeaeeneeeneneeetees 12
Maurer v. State,

668 So. 2d 1077, 1078 (Fla. 5th DCA 1996)..........:ccseccsecceeseeeeesenesesseeneesenes 9
Mieles v. South Miami Hospital,

659 So. 2d 1265 (Fla. 3d DCA 1995).......ccseccccseseseceeeeeeeseeeeneeeneeeseeeneas 33, 34
Patry v. Capps,

633 S0.2d 9 (Fla. 1994)... eee eeeeeceeneeeece reese eeeeseaa aa eeeeeeeeeeeeeeneneseeeeeee 34
Pezzella v. State,

390 So. 2d 97 (Fla. 3d DCA 1980)...... 0... cceesccsseneeeseeeenceeeeeeneeeeesaereeeeeeas 35
Phoenix Ins. Co. v. McCormick,

542 So. 2d 1030 (Fla. 2d DCA 1989)........ cee eeeeeseeeccceeeeeeeceeeeeceeeeueneaeeeenenes 36
Prudential Property and Casualty Insurance Company v.

Swindal, 622 So. 2d 467 (Fla. 1993).........:ccccceeeeeececeeeeeeeeeceeueeeeecessaaeneseeees 16
Roschman Partners v. S.K. Partners I,

627 So. 2d 2 (Fla. 4th DCA 1993).........eeeeeeeeeeeceeseceeeeceeeeeeeeeeneenenneree cee 12, 13
Russell E. Turner, D.C., PLLC, as assignee of Cresha Forgue v.

State Farm Fire and Casualty Company, 17 Fla. L. Weekly

Supp. 382b (Fla. Miami-Dade Cty .Ct March 2, 2010)........:..cceeeceseeeneeeenes 38, 39
Saka v. Saka,

831 So. 2d 709 (Fla. 3° DCA 2002)......ccccsseseseesessescereseeseeeesesssseessesesceeees 25

VvSeagrave v. State,

802 So. 2d 281, 287 (Fla. 2001)..........cecccceeceeeeesaneceteeeneeeeneeeeaeeeaneeeneeen ees 19

Seibert v. Bayport Beach and Tennis Club Association, Inc.,
573 So. 2d 889 (Fla. 2d DCA 1990).........csececeeesceeeecceeeeceeeetenereeeeseeeeseneeeees 19

Sierra v. Shevin,
767 So. 2d 524 (Fla. 3d DCA 2000)...........ccceeeccsecceeeeceesseeescenesenseserenseeenees 8

Smith v. ORHAMA, Inc.,

907 So. 2d 594 (Fla. 3d DCA 2006)..........cccceceeececeeensceeenneteseennereeeee 10

 

State v. Franko,
681 So. 2d 834, 835 (Fla. Ist DCA 1996)............ccecseseeeeeceeeceeeeeeeseeeteanesenees 9

State v. Laiser,
322 So. 24.490 (Fla.1975)......ccccccccccccccececececececeeeeeseeeeeeeeeeeeteeeeeeeteeneeeeges 35

State v. Osvath,
661 So. 2d 1252, 1254 (Fla. 3 DCA 1995).....ccccccsccsscesscsseessesseeecsneseeseenaes 25

 

State v. Russo
389 So. 2d 213 (Fla. 4th DCA 1980)......... ccc eeeeeeeceseeceeeeeeeeeeeneeeceeesenereeeeeen 33

State v. Russo, 389 So. 2d 213 (Fla. 4th DCA 1980),
Review Dismissed (392 So. 2d 1378 (Fla.1980)..........:00..cececeeeeeeeceeeeeeeeeeeaeaes 35

State v. Scalfani,
704 So. 2d 128 (Fla. 4th DCA 1997)...... ccc cccecceennereesrensreeeeeseeeeeenteeeeseeeeeee 35

State v. Webb,
398 So. 2d 820 (Fla. 1981)....... ccc cece cece ceeeeeccesceeeeeecceeneneeeeeceaaeneeesseaea ner cee 32

Swire Pac. Holdings, Inc. v. Zurich Ins. Co.,
845 So. 2d 161, 165 (Fla. 2003).........:ceececcceeseeecece eee eeeeeeeneeeceeseaeenaeeeaaae 15

Taurus Holdings, Inc. v. United States Fid. & Guar. Co.,
913 So. 2d 528, 532 (Fla. 2005)...... 00. e cece ce ceeceeeceeceaeeceeeeeeeeeeceseneeeetnteeeeees 15T.J.R. Holding Co., Inc. v. Alachua County,
617 So. 2d 798, (Fla. Ist DCA 1993)........ ccc ccceceeseceeeceneeeseeeseneeeueneeeceee cess 21

Travelers Ins. Co. v. Quirk,
583 So. 2d 1026 (Fla. 1991)... eeeeeeeceeeeeccreneeecee ane eeeceeneeeeeeese ee eeseeaee gees 34

Triano v, State Farm Mutual Automobile Insurance Company,
565 So. 2d 748 (Fla. 3d DCA 1990)...........cceeseceeceeecceeeeeeeceeeeneeteeeeeeeaeeeees 16

Tropical Coach Line, Inc. v. Carter,

121 So. 2d. 779, 782 (Fla. 1960).......:ccccccessssesssseesesseeeseseseneseeeetees +22

 

United Auto. Ins. Co. v. Prof’! Med. Group, Inc.,
26 So. 3d 21 (Fla. 3d DCA 2009)......... 0. ccceccecseeeseeeeeeeceeeeeeeeeseteenenaseeeeess 33

United States Fid. & Guar. Co. v. Murray,
671 So. 2d 812 (Fla. 4th DCA 1996)..........cececeseeeeeeeneeecereneeteeeeseneseseuanenes 32

USAA Cas. Ins. Co. v. Pembroke Pines MRI, Inc.,
31 So. 3d 234 (Fla. 4th DCA 2010)... 2. cee ececececeeeeeeeceeeaeeeeeeeeeeeeeaaeneeeeeeesen 33

Volusia County v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126 (Fla. 2000).....csssecssecssesssccsseecssscssessecsseceseecsecereceseecesseeeee 8

Wilson v. State,
377 So. 2d 237 (Fla. 2d DCA 1979).........ccscceseecceeeccneceeeeeeueseeeeeeseeeseeeeneas 33

Wollard v. Lloyd's & Cos. of Lloyd's,
439 So. 2d 217, 219 (Fla. 1983)........ccseeeecceceaeeeecececeeeeeccccaeeeeeeceneaaeneeeees 32

STATUTES & RULES OF PROCEDURE

Section 120.54(2)(a). Fla. Stat...........ccecccecesesscecceeeeeceeeeeeeseseeeeeessseneeeeees 33
Section 570.151(1), Fla. Stat..........ccccccccccseccecseceeeaceceeececeeeseeeeseeeeeseseceees 33
Section 627.448, Fla. Stat..........cccccseseeecececececceeeeeeneeeeereceseseeaeaeeeeneeeeees 40

vii_ Section 627.727(2), Fla. Stat.........ceseeeeeeeeeseeeeeeeneeseeeeaeeseeeaaseeneseeeeeeeeneees 34

 

Section 627.736(4)(f), Fla. Stat......c.ccccccccesssssscscsscscseeseseeseseeecseneeseereeeeeee 14
Section 627.736(4)(f), Fla. Stat. (2000).........:::ssssssesesssseeeeeceeeeeeeesesseeteeeeees 13
Section 627.736(5)(d), Fla. Stat..........cccccsssessseseeeeeeeecceeseaeeees even 21,23, 24, 32
Section 627.736(6)(b), Fla. Stat..........ccccsecseseeceeeeeee eee eeeeessseeeeeeneeeeneee 37, 39
Section 713.23, Fla. Stat........0..ccccccceseceeseeceecceeeeeeeeessaseeeeeseeneeeneeeeeaenees 33
Section 766.203, Fla. Stat...........cccccececeeeeeeeeeeeeeeeeeeeeaneeeeeensteeeeeeeeneeeaee tes 34
Section 768.57(2), Fla. Stat..........ccccsscseeceeceeeeeseeecesseeeeaestereneeeeseeeee scene 34
Fla, R. App. P.9.200.........cccceecccecccceeceeseeeceseeeeessaseeuneeu anes eeeseaneeseeseesenes 10
Fla. R. App. P.9.200(€).........::seseseeeseeeeceeeeeeecccceeeeesceeesesensssaeeeassieeeseceesed 9
Fla. R. App. P.9.210(0)(3).......::sssseeseseesseeeeeeseseeseecscceceeeseeetesseeeseeeesserer ees 3
Fla. R. App. P. 9.400... cccceee cece cette eecceeee reser eee aa eeersseaeneeesentensn saad 40
Fla. R. App. P.9.800............ccccccecccecceeeceee sees seeesseaeaeeeee eee eeeeeeeeerecteeseeeees 1
Fla. R. Crim. P. 3.987 ..........cccsseesesseseseeeeseseceeceeecececeeeeseeeeeusssseseeneeeeeees 35
OTHER CITATIONS

Ch. 2001-271, § 6, at 2931, Laws Of Fla....... 00... cccccceeceeececneecenaeeseneeeeeeeeneees 14

VitiI. | PREFACE.

Appellant, State Farm Mutual Automobile Insurance Company, will be
referred to in this brief as State Farm, Appellant, or Defendant. The Appellee,
Charles S. Theofilos, M.D., P.A., as assignee of Debra Welsh, will be referred to as
Theofilos, Appellee, or Plaintiff. The Appellant’s insured, Debra Welsh, will be
referred to as Welsh. References to State Farm’s Initial Brief will be designated by
(IB. ___). References to the Record on Appeal will be designated by the volume
and page number such as(R.__:__). References to State Farm’s Appendix will
be designated by (Al.__: ___). References to Appellee’s Appendix will be
designated by (A2.__: __). All emphasis is added unless otherwise noted.
Citations in quoted passages have been conformed to Fla. R. App. P. 9.800 as
needed.

II. | ISSUES ON APPEAL.

State Farm appeals the final judgment of the trial court entered pursuant to
the trial court’s order granting the Plaintiffs motion for summary judgment and
denying the Defendant’s cross-motion for summary judgment on medical coding
issues. In this appeal State Farm presents two issues for consideration by this
Court. First, State Farm contends that the trial court erred in entering summary
judgment in favor of Theofilos, arguing that the American Medical Association

Current Procedural Terminology (“CPT”) Code book, vis-a-vis the Florida No-

Page | of 42Fault Law (“the PIP Statute”), requires a “separate distinctly identifiable signed
written report” when a physician bills for independently reading and interpreting
the technical component of an MRI in conjunction with formulating his own
diagnosis when the technical and professional components have previously been
performed and globally billed by another health care provider.

Second, State Farm likewise argues that interpretation of the MRI films
should have been included in the CPT Code and corresponding charge for the
evaluation and management of a new patient (CPT Code 99244) which was
performed by Theofilos and separately billed on the same day that he
independently read and interpreted Welsh’s MRI films.

The Appellee respectfully submits that: a) the trial court must be affirmed
because the Appellant has failed to present an adequate record on appeal; b) the
trial court must be affirmed because the Appellant’s arguments are founded on the
PIP Statute which is inapplicable to this claim for Medical Payment benefits; c)
irrespective of the foregoing, the trial court correctly held that the independent
reading of a pre-existing MRI film by a neurosurgeon in conjunction with
evaluation and management of a patent is a separately billable activity under the
CPT guidelines; and, d) the trial court was correct that Theofilos was not required

to produce a separate report of his independent evaluation of the MRI films or, if

Page 2 of 42required, he substantially complied. Accordingly the final judgment of the trial
court should be affirmed.
Ill. STATEMENT OF THE CASE AND FACTS.

Theofilos generally agrees with the statement of the case and facts as
presented by State Farm in its Initial Brief. However, Theofilos takes exception to
certain portions of State Farm’s statement of facts and provides additional facts as
follows:

State Farm states, as fact, that Theofilos “did not prepare ‘separate distinctly
identifiable written reports’ of this re-reading and re-interpretation of the MRIs.”
1.B.4. Theofilos did, in fact set forth his findings separately and distinctly under
the heading “radiographic review” in his signed written report of his initial
encounter with Welsh titled “Initial Comprehensive Consultation — Second
Opinion w/ Cervical and Lumbar MRI Interpretation.” (R. 2: 317-320). Further,
Theofilos subsequently provided State Farm with the exact same information set
forth on separate pages. (R. 3: 540-541).

Theofilos next takes issue with a portion of State Farm’s Statement of Facts
which improperly contains arguments in violation of Fla. R. App. P. 9.210(b)(3).
In footnote four on page four on the Initial Brief, State Farm points out that during
the ongoing treatment of Welsh, Theofilos ordered another MRI which was

performed at a facility owned by Theofilos. Upon receiving the MRI report and

Page 3 of 42films, Theofilos re-read the films as he customarily does, but did not charge
separately for the re-read as the MRI had been performed in a facility that he
owned. (R: 276-277). State Farm then argumentatively states “[t]hat is what
should have happened here.” (1.B.4: FN4). Appellate courts have taken a very
stringent position on improper legal arguments contained in the statement of facts,
and have even gone so far as to strike the offending party’s brief. See, Island
Harbor Beach Club, Ltd. v. Department of Natural Resources, 471 So. 2d 1380,
1381 (Fla. Ist DCA 1985); Automatic Data Processing v. Scarberry, 412 So. 2d
927, 928 (Fla. lst DCA 1982). While State Farm’s offenses in this regard are not
flagrant, this Court should, at a minimum, disregard the argumentative portions of
State Farm’s statement of facts.

Further, in parsing the testimony of Dr. Theofilos, State Farm fails to apprise
this Court of the reasons expressed by Dr. Theofilos for not charging to re-read
films globally billed by the MRI facility that he owns:

My understanding -- this is my understanding: Is that my
billing department -- and this may be wrong -- does not bill for
my interpretations for the MRI scans done here because they're
done at a facility that I own and they don't want to be accused
of double dipping. So that's my understanding, because I've got
the radiologist, et cetera, et cetera. My understanding. Now,
maybe they do. Maybe they do and they just missed this one.
But that's what I thought that was the policy.

(A2. Tab1:P32: L22 — P33: L7).

Page 4 of 42Dr. Theofilos never said or even implied that he was not entitled to bill for
his independent review and interpretation of the MRI films, even those taken in his
own facility, but only that he believed his billing staff made a policy decision to
not charge for such re-reads. Further, the record does not conclusively even
establish that such is the case, as Dr. Theofilos’s testimony is equivocal as to
whether the failure to bill for the re-read of the MRI films from his own facility is
in fact policy or just an oversight in this particular case.

State Farm also attempts to confuse this Court by alluding that the factors
that a physician considers in medical decision making to determine “complexity”
and the appropriate level of CPT Code for an initial examination (in this case CPT
99244) somehow equate to how the entire patient encounter should be billed. At
page seven of its Initial Brief, State Farm states that Theofilos’s billing code
specialist, Mayra Reyes, “... acknowledged that the medical decision making
includes consideration of the ‘medical records, diagnostic tests, and/or other
information that must be obtained, reviewed, and analyzed,’ and that Dr. Theofilos
did exactly that with respect to Ms. Welch’s (sic) MRIs from the MRI Facility to
make his diagnosis.” (1.B. 7). However, in context, Ms. Reyes explained:

You’re asking me to review how he comes up with the
complexity. Nothing to do with how it’s billed. This is to
determine what level of complexity is involved in this patient’s

care. Not to determine what should be billed to this patient’s
MRI review, x-ray review, or diagnostic testing.

Page 5 of 42(Al. 1: 28).

State Farm further misstates Reyes testimony as to the meaning of CPT code
99244 when it says “... as Ms. Reyes admitted in her deposition, the ‘medical
decision making component’ of CPT Code 99244 ‘refers to the complexity of
establishing a diagnosis and/ or selection [of] a management option as measured
by’: (1) ‘the number of possible diagnosis and/or the number of management
options that must be considered’; and (2) ‘the amount and/or complexity of
medical records, diagnostic tests, and/ or other information that must be obtained,
reviewed and analyzed.” (I.B. 10). State Farm then makes the argumentative
statement that “decision making therefore includes review of the existing medical
records” (I.B. 10) as a red herring to disingenuously suggest that review of medical
records, such as a report of an MRI is the same as actually re-reading and
interpreting the MRI films. Further, the testimony of Ms. Reyes made clear that
the components used to determine the level of E/M code based on complexity do
not speak to billing for the office visit and, specifically, to whether reading and
interpreting diagnostic studies are separately billable.

Likewise, State Farm’s quote from the affidavit of its expert, Connie
Coleman, misleadingly suggests that “review of diagnostic tests” as contemplated
in CPT Code 99244 extends to independently reading and interpreting MRI films

or speaks to whether doing so is a separately billable activity:

Page 6 of 42For example, a radiologist reads an x-ray and writes a report
which is placed in the patient’s chart. The radiologist reports
the radiology code which describes the service provided. The
orthopedic surgeon, for example, reviews the report written by
the radiologist. The orthopedic surgeon does not report the
code for the radiologic procedure; the review of the report

written by the radiologist_is included _in the E&M_ service
reported. (underline in Initial Brief; bold/italics added)

(LB.10).

This quote is misleading as it deals with reviewing a written_report
containing another physician’s interpretation and conclusions about a diagnostic
test, rather than an independent reading and interpretation of the technical
component of that test by a subsequent treating physician, for a specific diagnostic
purpose, to reach his own conclusions and diagnosis.

IV. SUMMARY OF THE ARGUMENT.

The standard of review applicable to this appeal is de novo.

The trial court must be affirmed because the Appellant has failed to present
an adequate record on appeal. State Farm is unable to demonstrate reversible error
as the record on appeal does not contain a transcript of the summary judgment
proceedings below.

The trial court must be also affirmed because the Appellant’s arguments are
founded on the PIP Statute which is inapplicable to this claim for Medical Payment
benefits. Med Pay is purely a-creature of contract and unquestionably not subject

to the requirements of the PIP Statute. Any argument by State Farm that the

Page 7 of 42language of the subject policy subjects the Med Pay coverage to the requirements
of the PIP statute must fail, as any such language is ambiguous and inadequate to
accomplish same.

Irrespective of the foregoing, the trial court correctly held that the
independent reading of a pre-existing MRI film by a neurosurgeon in conjunction
with evaluation and management of a patent is a separately billable activity under
the CPT guidelines. Further, the trial court was correct that Theofilos was not
required to produce a separate report of his independent evaluation of the MRI
films or, if required, he substantially complied.

Accordingly the final judgment of the trial court should be affirmed.

Vv. ARGUMENT.

A) — Standard of Review.

A final order granting a motion for summary judgment is subject to de novo
review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla.
2000); Horizons Rehabilitation, Inc. v. Health Care And Retirement Corp., 810 So.
2d 958 (Fla. Sth DCA 2002)(The standard of review of a summary judgment is de
novo). This standard of review requires viewing the evidence in the light most
favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA
2000). However, “an order of the county court ... comes to the circuit court with a

presumption of correctness and the circuit court must interpret the evidence, and

Page 8 of 42reasonable inferences and deductions therefrom, in a manner most favorable to
sustaining the trial court’s ruling." Maurer v. State, 668 So. 2d 1077, 1078 (Fla.
5th DCA 1996). "Even when based on erroneous reasoning, a conclusion or
decision of a trial court will generally be affirmed if the evidence or an alternative
theory supports it." Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150,
1152 (Fla. 1979). The presumption of correctness, noted above by the Maurer
court has its roots in common sense and practical considerations. "The county court
is the sole arbiter of the credibility and weight of the evidence ... that is the
exclusive province of the county court judge." Maurer at 1078.

Appellate courts do not substitute their opinion as to such issues as
credibility for the opinion of the County Court judge. "A ruling on a motion is
presumed to be correct and our duty as an appellate panel is to interpret the
evidence and reasonable inferences therefrom in a manner most favorable to
sustaining that determination." State v. Franko, 681 So. 2d 834, 835 (Fla. lst DCA

1996).

B) The Final Judgment _must_be affirmed because_the
Appellant_has failed to present_an adequate record on
appeal.

State Farm is unable to demonstrate reversible error as the record on appeal
does not contain a transcript of the summary judgment proceedings below. Florida

Rule of Appellate Procedure 9.200(e) states that the burden is on the Appellant “to

Page 9 of 42ensure that the record is prepared and transmitted” properly. See Applegate v.
Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (stating that the
decision of the trial court has the presumption of correctness and the burden is on
the appellant to demonstrate error); Goonan v. Goonan, 852 So. 2d 361 (Fla. Sth
DCA 2003) (where record on appeal does not contain a transcript of the
proceeding, the appellate courts “presume that such findings are correct”); Bei v.
Harper, 475 So. 2d 912, 914 (Fla. 2d DCA 1985) (same).

State Farm has also not prepared a stipulated set of facts pursuant to Florida
Rule of Appellate Procedure 9.200. Florida Rule of Appellate Procedure
9.200(a)(4) provides that in the absence of a hearing transcript, “the parties may
prepare a stipulated statement showing how the issues to be presented arose and
were decided in the lower tribunal.” To date, there has been no attempt by the
Appellant to prepare a stipulated statement. Consequently, this Court does not
have the ability to conduct meaningful appellate review.

Where there is no transcript of the summary judgment hearing, a judgment
which is not fundamentally erroneous on its face must be affirmed. Smith v.
ORHAMA, Inc., 907 So. 2d 594 (Fla. 3d DCA 2006). It is well-known that in
appellate proceedings “the decision of a trial court has the presumption of
correctness and the burden is on the appellant to demonstrate error." Applegate v.

Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). Where the

Page 10 of 42appellate court lacks a hearing transcript, there is no adequate record to review and
thus an appellate court must affirm. Hoover v. Sprecher, 610 So. 2d 99 (Fla. Ist
DCA 1992).

As the Appellant, State Farm has the burden of preparing and transmitting a
record that is sufficient to show that the trial court committed reversible error.
Compton v. Compton, 701 So. 2d 110 (Fla. 5th DCA 1997). By not including a
transcript of the summary judgment hearing in the record State Farm failed to
perfect the record, thereby denying this Court the ability to determine which
arguments were presented to the trial court. Thus, in the absence of a transcript or
a proper record concerning issues of legal findings, this Court must affirm the
lower court. Applegate, at 1152.

C) The Final Judgment_must_be affirmed _because_the

Appellant’s arguments are predicated on the Florida No-

Fault Law which is inapplicable to Appellee’s claim for
medical payment benefits.

On November 25, 2006, Welsh was involved in a motor vehicle accident in
which she sustained personal injuries. (R. 5: 885). At the time of the accident
Welsh was insured by State Farm under an automobile insurance policy which
provided personal injury protection (“PIP”) benefits of $10,000.00 and medical
payments (“Med-Pay”) benefits of $100,000.00. (R. 2: 240). PIP benefits

exhausted on February 23, 2007. (R. 1: 185). The health care services that are the

Page 11 of 42subject of this appeal were provided to Welsh by Theofilos on January 16, 2008,
long after the PIP benefits had been exhausted. (R. 1: 185).

At the time Theofilos submitted his bills for the subject health care services,
and at all times material hereto, Welsh’s Med-Pay coverage provided the only
benefits available for payment of the bills at issue in this case. (R. 1: 185). The
Med-Pay benefits under the policy are paid at the rate of 100% once PIP benefits
have exhausted. (R. 1: 185).

The “tipsy coachman rule” does not limit an appellee to only those
arguments that were raised in the lower court. In Dade County Sch. Bd. v. Radio
Station WOBA, 731 So. 2d 638, 645 (Fla. 1999), the Florida Supreme Court stated:

If an appellate court, in considering whether to uphold or
overtum a lower court's judgment, is not limited to
consideration of the reasons given by the trial court but rather
must affirm the judgment if it is legally correct regardless of
those reasons, it follows that an appellee, in arguing for the
affirmance of a judgment, is not limited to legal arguments
expressly asserted as grounds for the judgment in the court
below. It stands to reason that the appellee can present any
argument supported by the record even if not expressly asserted
in the lower court. . . . An appellee need not raise and preserve
alternative grounds for the lower court's judgment in order to
assert them in defense when the appellant attacks the judgment
on appeal.

Malu v. Sec. Nat'l Ins. Co., 898 So. 2d 69, 73 (Fla. 2005), citing, Dade County Sch.

Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999). This doctrine

applies equally to summary judgment orders. See, e.g., Roschman Partners v. S.K.

Page 12 of 42Partners I, 627 So. 2d 2 (Fla. 4th DCA 1993). Although these arguments were not
the trial court’s stated basis for granting Plaintiff's summary judgment motion, this
Court may nonetheless rely upon them to affirm the trial court’s order. City of
Clearwater v. Sch. Bd., 905 So. 2d 1051, 1057 (Fla. 2d DCA 2005).

PIP benefits are primary and statutorily required; Med Pay coverage is
optional and not required by law. Giarrusso v. Amica Mut. Ins. Co., 564 So. 2d
160 (Fla. 4th DCA 1990). State Farm’s arguments in the trial court and in this
appeal are predicated entirely on alleged violations of the PIP Statute which pertain
only to PIP benefits, and must be rejected here as they do not and cannot apply to
Appellee’s Med Pay claim.

Prior to 2001, the PIP Statute contained a provision governing Med Pay
which provided as follows:

Medical payments insurance, if available in a policy of motor
vehicle insurance, shall pay the portion of any claim for
personal injury protection medical benefits which is otherwise
covered but is not payable due to the coinsurance provision of
paragraph (1)(a), regardless of whether the full amount of
personal injury protection coverage has been exhausted. The
benefits shall not be payable for the amount of any deductible
which has been selected.
§ 627.736(4)(f), Fla. Stat. (2000).
It is doubtful, based on the limited language of the foregoing Med Pay

provision, whether the inclusion of this provision within the PIP Statute would

have ever rendered Med Pay subject to all of the other provisions of the PIP

Page 13 of 42Statute, as the legislative intent of the provision was simply to modify the case law
regarding timing of Med Pay benefits. Bolden v. State Farm Mut. Auto. Ins. Co.,

689 So. 2d 339, 342 (Fla. 4th DCA 1997), see also, Allstate Ins. Co. v. Rudnick,

 

761 So. 2d 289, 291 (Fla. 2000) (Med Pay benefits should not be treated as PIP
benefits).

However, the question of whether the PIP Statute applies to Med Pay was
rendered moot in 2001 when the Florida legislature deleted § 627.736(4)(f),
thereby leaving Med Pay purely a creature of contract and unquestionably not
subject to the requirements of the PIP Statute. Ch. 2001-271, § 6, at 2931, Laws of
Fla.

Theofilos anticipates that State Farm will argue in its Reply Brief that the
Med-Pay benefits are subject to all of the requirements of the PIP Statute by virtue
of the subject policy language that says “there is no coverage under medical
payments ... for any medical expenses that are not payable under the no-fault
coverage.” (R. 2: 301). This Court should flatly reject any such argument.

A careful reading of the policy language "[t]here is no coverage under
Medical Payments ... for any medical expenses that are not payable under no-fault
coverage ..." (emphasis added) speaks to whether a medical expense is covered at
all as opposed to whether an otherwise covered expense is payable or subject to all

of the requirements and procedural hurdles of the PIP Statute. State Farm chose

Page 14 of 42the policy language and if they intended to say a bill is not payable unless it
satisfies all of the procedural requirements of the PIP statute they should have
clearly expressed that in the policy. State Farm wishes to subject its Med-Pay
coverage to all of the requirements of the PIP Statute without having specifically
included such language in the Med-Pay provisions of the policy. Absent a specific
policy provision expressly stating that Med-Pay claims are subject to all of the
technical and procedural requirements of the PIP Statute, State Farm has no
statutory or contractual right to apply those requirements to its reimbursement of
Med-Pay claims. At a minimum, the policy language that says “there is no
coverage under medical payments ... for any medical expenses that are not payable
under the no-fault coverage” is ambiguous. It is a well settled rule of law in
Florida that where an insurance contract is ambiguous it will be construed liberally
in favor of the insured and strictly against the insurer. Ellsworth v. Ins. Co. of

North America, 508 So. 2d 395 (Fla. Ist DCA 1987), see also, Hartnett v. Southern

 

Insurance Company, 181 So. 2d 524 (Fla. 1965).

Furthermore, where the policy is found to be ambiguous, the contract is to be
read liberally and to provide the broadest coverage possible. Taurus Holdings, Inc.
v. United States Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005); See also, Swire
Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003); Auto-

Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)); Deni Assocs. of Fla.,

Page 15 of 42Inc. v. State Farm Fire & Cas. Ins. Co., 711 So. 2d 1135, 1140 (Fla. 1998);
Prudential Property and Casualty Insurance Company v. Swindal, 622 So. 2d 467
(Fla. 1993); Triano v. State Farm Mutual Automobile Insurance Company, 565 So.
2d 748 (Fla. 3d DCA 1990).

Accordingly, this Court should find that the requirements of the PIP Statute
do not apply to Appellee’s claim for Med-Pay benefits and affirm the final

judgment of the trial court.

D) The Final Judgment should be affirmed because the trial
court correctly found that the independent reading of a
pre-existing MRI film by a neurosurgeon in conjunction
with evaluation and _management_of_a patent _is_a
separately billable activity under the CPT guidelines.

Even if this Court rejects the arguments in points B) and C) above, the Final
Judgment should still be affirmed because the trial court correctly found that the
independent reading of a pre-existing MRI film by a neurosurgeon in conjunction
with evaluation and management of a patent is a separately billable activity under
the CPT guidelines.

This Court has had a prior occasion to consider and interpret the CPT
provisions at issue in this case Gary H. DiBlasio, MD, PA (Cheryl Baumann) v.
Progressive Express Insurance Company, 14 Fla. L. Weekly Supp. 1027a (Fla.

15th Cir. Ct. August 13, 2007), and held that they were clear and unambiguous as a

Page 16 of 42matter of law. State Farm brazenly asserts that this Court “wrongly decided” the
Baumann case. (1.B. 2).

State Farm argues that the trial court erred in interpreting the CPT Code
book, specifically the portion that deals with “Levels of E/M Services.” (I.B. 18).
State Farm argues that the trial court erred in relying upon Baumann because
Baumann does not address the references to the CPT Assistant made by State Farm
in this matter and that there was no evidence that the Court which decided
Baumann was presented with such references. (I.B. 18-19). State Farm argues that
it is the "CPT Assistant's directive which makes the difference:" (I.B. 19).

Further, State Farm expresses its disagreement with the ruling in Baumann
that “the interpretation of the CPT Codes does not allow expert testimony.”
However, in the instant case, the court considered the affidavit of State Farm’s
expert, Connie Coleman, and referenced same in its final judgment. (R. 5:887).
Despite State Farm’s protestations concerning the admissibility of expert testimony
on the subject, State Farm concedes that Coleman was merely a conduit for the
information contained in the CPT Code book and CPT Assistant: “... in this case,
the Coleman Affidavit merely quotes the CPT Code Book and CPT Assistant
sections already before the Court as exhibits to state (sic) Farm’s Motion for
Judicial Notice. ... Therefore, neither this court nor the trial court was required to

impermissibly rely on only the opinion of an expert regarding interpretation of the

Page 17 of 42CPT Code at issue.” (I.B. 21). Nonetheless, State Farm has presented absolutely
no evidence to suggest that the trial court did not fully consider the credibility and
weight of the evidence presented by Coleman in her affidavit and deposition
testimony and therefore cannot show any reversible error in this respect.

The trial court in Baumann stated:

The Court agrees with the Plaintiff in that The American
Medical Association Current Procedural Terminology (CPT)
for 2004 does not say that the reading and interpretation of the
MRI and x-ray films is included within CPT Code 99245.
Furthermore, the actual interpretation of diagnostic tests/studies
is not included in the levels of E/M services. Therefore,
DIBLASIO did not unbundle the CPT codes 72148-26, 72040-
26 and 72110-26 from the 99245 E/M service CPT code billed
for date of service March 4, 2004. The interpretation of these
films is also not limited to the doctor who ordered these tests.

Gary H. DiBlasio, MD, PA (Cheryl Baumann) v. Progressive Express Insurance
Company, 13 Fla. L. Weekly Supp. 179a (Fla. Palm Beach Cty. Ct. July 15, 2005).
On appeal, the Circuit Court in Baumann held:

The trial court, agreeing with DiBlasio, and in reading the two
CPT provisions together, found as a matter of law that the
provisions clearly provided for the interpretation of diagnostic
tests to be a separate charge, and not “bundled” within the
99245 billing code.

The trial court below found a clear and unambiguous reading of
the CPT provisions in question. The 99245 billing code
specifically lists as part of its “bundle”: (1) a comprehensive
history; (2) a comprehensive examination; and (3) highly
complex medical decision-making. A second, completely
separate provision of the CPT speaks specifically of separate

Page 18 of 42billing for interpretation of diagnostic tests, implying that
interpretation of diagnostic tests was not intended to be
included in the 99245 billing code bundle. A basic principle of
Statutory construction is that courts are not at liberty to add
words to statutes that were not placed there by the Legislature.
Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001). The trial
court properly declined to add diagnostic test interpretation to
the 99245 billing code, where that service was already clearly
contemplated in a different billing provision. In reviewing the
two CPT provisions in question, we agree with the trial court's
clear and unambiguous reading of the CPT.

RE: affidavit conceming CPT: In Devin v. City of Hollywood,
351 So. 2d 1022 (Fla. 4th DCA 1976), the Fourth District Court
of Appeal held that the trial court erred in relying upon expert
testimony to determine the meaning of terms which were
questions of law to be decided by the trial court. The Second
District Court of Appeal followed in Seibert v. Bayport Beach
and Tennis Club Association, Inc., holding that an expert
should not be allowed to testify concerning questions of law,
and the interpretation of a building code presented a question of
law. 573 So. 2d 889 (Fla. 2d DCA 1990). In fact, the court held,
it was the duty of the trial judge to interpret the meaning of the
code and resolution of any conflicts in interpretation was not a

jury issue.

... the CPT provisions are clear and unambiguous as to the -26
modified diagnostic test interpretation billing, which is not
bundled within the 99245 CPT code.
Gary H. DiBlasio, MD, PA (Cheryl Baumann) v. Progressive Express Insurance
Company, 14 Fla. L. Weekly Supp. 1027a (Fla. 15th Cir. Ct. August 13, 2007).

State Farm argues that “[w]hile the trial court concluded that it was bound

by Baumann, this Court has the authority to distinguish or reject it based on the

Page 19 of 42impact of the CPT Assistant and the 1997 addition to the CPT Code Book. (I.B.
21). State Farm then grossly misstates the holding of Daniel J. Madock (a/a/o
Lynn Kus) v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 408b (Fla.
13th Cir. Ct. March 3, 2004) when it says “[t]hat is the decision ... reached in
Madock, explaining that the CPT Assistant establishes that the ‘evaluation and
interpretations of a diagnostic study is to be included in an office visit charge
rather than being billed separately’.” (I.B. 21). State Farm then urges this court
that Madock should control over Baumann because Madock “recognizes the effect
of the CPT Assistant on the issue before the court ....” However, even a cursory

reading of Madock reveals that the appellate court did not hold that the evaluation

 

and interpretations of a diagnostic study is to be included in an office visit charge
rather than be billed separately. The only issues before the Madock court were
evidentiary questions of whether the trail court abused its discretion when it
refused to allow the admission of evidence that other insurers had customarily paid
the Plaintiff's medical charges for CPT code 76140 in conjunction with CPT code
98940, and when it admitted “The CPT Assistant” into evidence despite the fact
that the articles were unauthenticated and were not disclosed at the pretrial
conference. This Court should not be led astray by State Farm’s misstatement of

the holding in Madock.

Page 20 of 42As this court has previously held, the CPT Code provision pertaining to
"Levels of E/M Services" is clear and not reasonably susceptible to different
interpretations, and does not include the reading of MRI films.

Section 627.736(5)(d), Fla. Stat., sets forth that the CPT Code Book is one
of several “authoritative treatises” which provide guidance in determining
compliance with applicable CPT and HCPCS coding. Although a treatise is not
law, “when statutes contemplate these authoritative writings as guidelines, Florida
follows statutory construction principals with the end goal of bridging legislative
intent.” Baumann, 14 Fla. L. Weekly Supp. 1027a (Fla. 15th Cir. Ct. August 13,
2007).

“[T]he interpretation of a statute is a question of law to be determined solely
by the court, not by expert witnesses.” T.J.R. Holding Co., Inc. v. Alachua
County, 617 So. 2d 798, (Fla. Ist DCA 1993), citing Lindsay v. Allstate Ins. Co.,
561 So. 2d 427 (Fla. 3d DCA 1990); Devin v. City of Hollywood, 351 So. 2d 1022
(Fla. 4th DCA 1976). In 7./.R. Holding, the First District further stated:

While expert testimony may be relevant and helpful to the court
in understanding the meaning of statutory language involving
words of art or scientific and technical terms, such expert
testimony is not controlling on the court's construction of the
statute; indeed, such expert testimony is not even appropriate
when the statutory language in question consists of ordinary

words susceptible to being given plain effect consistent with
their ordinary meaning.

Page 21 of 42The plain meaning of statutory language is the first consideration of
statutory construction. Gonzalez v. State, 941 So. 2d 1226 (Fla. 5th DCA 2006).

When the language of a statute is clear and unambiguous, the statute must be
given its plain and ordinary meaning. Aetna Casualty & Sur. Co. v. Huntington
Nat'l Bank, 609 So. 2d 1315 (Fla. 1992). "The cardinal rule of statutory
construction is that a statute should be construed so as to ascertain and give effect
to the intention of the Legislature as expressed in the statute.” City of Tampa v.
Thatcher Glass Corp., 445 So. 2d 578, 579 (Fla. 1984) (emphasis added) (quoting
Deltona Corp. v. Fla. Pub. Serv. Comm'n., 220 So. 2d 905,907 (Fla. 1969)).
“[T]he legislative intent must be derived from the words used without involving
incidental rules of construction or engaging in speculation as to what the judges
might think that the legislators intended or should have intended.” Tropical Coach
Line, Inc. v. Carter, 121 So. 2d 779, 782 (Fla. 1960). “[T]he statute must be given
its plain and obvious meaning.” Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)
(quoting McRainey, 137 So. at 159). Thus, the statute's text is the most reliable
and authoritative expression of the Legislature's intent.

In Baumann, the Circuit Court relied upon CPT to determine compliance
and ruled that Diblasio's separate interpretation of MRIs was not included within
the “levels of E/M services” contemplated within CPT code 99215 which was

billed for the patient's office visit. Following Baumann, the trial court likewise

Page 22 of 42tuled that Theofilos’s separate interpretation of MRIs was not included within the
“levels of E/M services” contemplated within CPT code 99244 which was billed
for Welsh’s office visit.

State Farm attempts to distinguish Baumann from the instant case by arguing
that when this Court decided Baumann, it did not consider certain “other
references.” (I.B. 19). The "other references" which State Farm relies upon is the
“CPT Assistant.” However, as stated above, State Farm has presented no evidence
that that trial court in the instant case did not consider the CPT Assistant in
evaluating and weighing the affidavit and deposition testimony of Connie
Coleman, and therefore State Farm cannot show reversible error in this regard.

Nonetheless, it would be improper for this Court to now rely upon the CPT
Assistant in reviewing this matter.

On page two of its Initial Brief State Farm acknowledges that §
627.736(5)(d), Fla. Stat. is the controlling statute. Section 627.736(5)(d)
specifically identifies certain authorities that may be used in determining
compliance with CPT and HCPCS coding, and very clearly designates what shall
be used to determine compliance with CPT coding and it leaves no option for the
courts to make an independent determination. Section (5)(d) specifically states

that “... guidance shall be provided by the Physicians’ Current Procedural

Terminology (CPT) ... in effect for the year in which services were rendered."

Page 23 of 42(emphasis added). Despite this clear provision, State Farm argues that the CPT
Assistant articles from the years 1997 are authoritative. (I.B