Preview
Filing # 147204268 E-Filed 04/06/2022 05:35:28 PM
CDM CHIROS, LLC d/b/a NEW TAMPA IN THE COUNTY COURT IN AND
CHIROPRACTIC AND INJURY CENTER a/a/o Ryan FOR MIAMI-DADE COUNTY,
Davie, FLORIDA
Plaintiff, CASE NO.:
Vs.
Progressive American Insurance Company,
Defendant.
__________________________________________/
COMPLAINT
COMES NOW, Plaintiff, CDM CHIROS, LLC d/b/a NEW TAMPA CHIROPRACTIC
AND INJURY CENTER a/a/o Ryan Davie (hereinafter “Plaintiff”) sues the Defendant, Progressive
American Insurance Company (hereinafter “Defendant”), and in support thereof alleges the following:
GENERAL ALLEGATIONS
1. This is an action for Breach of Contract, which does exceed One Dollar ($1.00), but does
not exceed One Hundred Dollars ($100.00), exclusive of interest, attorney’s fees and costs.
2. Defendant was and remains a foreign or domestic corporation organized and existing
under the laws of the State of Florida and is otherwise sui juris.
3. Defendant was and is a corporation authorized to do business in, maintains an office and
agents in, and regularly sells automobile insurance policies to the general public in MIAMI-DADE
County.
4. Defendant and the Progressive group of insurance companies have substantial identities of
interest.
5. At all times material hereto, Plaintiff was a corporation duly licensed to perform medical
services in the State of Florida.
6. On or about 9/13/2021, Ryan Davie (hereinafter “Claimant”) was involved in a motor
vehicle accident.
7. As a result of that motor vehicle accident, Plaintiff provided Claimant with medical
services and/or treatment.
8. As a direct and proximate result of the injuries sustained by Claimant in the accident,
Claimant incurred reasonable expenses for necessary medical and rehabilitative care or services from
Plaintiff.
9. Defendant issued a policy of insurance to Claimant or other insured which provided
personal injury protection (“PIP”) benefits coverage required by law to comply with Florida Statutes
Sections 627.730 thru 627.7405. Defendant is also permitted to provide more coverage than the
statutory minimums. Plaintiff does not have a copy of the policy to attach; however, Plaintiff believes
that the Defendant has a true and correct copy of said policy.
10. The above described policy was in full force and effect on the date of the accident and
provided PIP coverage for Claimant for bodily injuries sustained in said accident.
11. Plaintiff and Claimant have performed the statutorily and contractual required conditions
precedent to entitle Plaintiff to recover benefits for said necessary medical, rehabilitative and remedial
services under the above-described policy.
12. Claimant equitably assigned to Plaintiff and/or also executed a written assignment of
benefits, assigning to Plaintiff certain benefits payable pursuant to the policy of insurance issued by
Defendant. A copy of the Assignment has been previously furnished to the Defendant.
13. Pursuant to an assignment and/or other standing, Plaintiff gave notice of the covered
losses and Plaintiff made demand for PIP benefits for reasonable, necessary and related medical
treatment.
14. Defendant has denied coverage for, withheld or reduced the medical bills that were
submitted by Plaintiff for dates of service 09/23/2021 thru 11/10/2021. A copy of the HCFAs and/or
itemized ledger was previously provided to the insurer.
15. Due to the failure of Defendant to pay these PIP benefits in accordance with the law,
Plaintiff has been required to retain the undersigned law firm to act on its behalf in this suit. Plaintiff
has agreed to pay, and the attorneys for Plaintiff have agreed to accept any court awarded fee.
COUNT I: BREACH OF CONTRACT
16. Plaintiff re-avers and re-alleges paragraphs 1 through 15 of this Complaint.
17. Despite prior demand by Plaintiff, Defendant has refused and continues to refuse to issue
payment of all sums due Plaintiff, including benefits, statutory interest, penalty and postage, in
violation of Section 627.736, Florida Statutes, and in breach of its insurance policy.
18. The aforesaid breach is material and results in compensatory damages. The exact
damages are unknown as they continue to accrue.
19. Plaintiff has retained the undersigned firm to represent it in this action and has agreed to
pay a reasonable fee for said services or the undersigned firm has agreed to accept any court awarded
fee.
20. Pursuant to Section 627.428, Florida Statutes, Plaintiff is entitled to recover from
Defendant reasonable attorney’s fees and costs for the necessity of this action, even if Defendant pays
all or some of the benefits after this suit is filed.
21. Any payment of a damage received after this lawsuit is filed is considered a
confession of judgment.
ALTERNATIVE COUNT II:
PETITION FOR DECLATORY RELIEF
22. Plaintiff re-avers and re-alleges paragraphs 1-21 stated above, as if fully set forth
herein and further states:
23. This is a Count for declaratory judgment, pursuant to Fla. Stat. § 86.011 Et Seq., in
regard to the interpretation and construction of rights, obligations, and exclusions contained in an
automobile insurance policy application and Florida Statute 627.736, namely whether the Defendant
improperly utilized the Medicare Payment files as opposed to following the Medicare Part B formula
for reimbursement.
24. If Defendant’s policy of insurance incorporates the schedule of maximum of schedule
charges, then the policy requires the Defendant to utilize the Medicare formula when determining the
allowable amounts for each CPT Code billed.
25. Based on Defendant’s explanation of benefits, it is clear that it intended to reimburse
the codes pursuant to Florida Statute 627.736(5) and calculate the allowable amount pursuant to
Florida Statute 627.726(5), which sets forth that the maximum reimbursement for the procedures may
not exceed the applicable fee schedule or other payment methodology.
26. The participating physicians fee schedule of Medicare Part B is calculated by using a
specific formula consisting of (1) the relative value units of a service (“RVU”); (2) the conversion
factor for the particular year (“CF”); and (3) the geographic pricing cost index applicable to the
locality in which the service was provided (“GPCI”). The formula is:
[Work RVU x Work GPCI) + (Non-Facility PE RVU x PE GPCI) +
(MP RVU x MP GPCI)] x Conversion Factor
27. The “schedule of maximum charges” as defined in Florida Statute 627.736(5)(a) is a
payment methodology which insurance companies may utilize other than the 80% of reasonable
charges methodology when reimbursing PIP benefits to medical providers. In order to avail itself of
reimbursing at the schedule of maximum charges, an insurer must clearly and unambiguously elect
this payment method. Rather, the issue is that the Defendant paid less than 80% of 200% of the
schedule of maximum charges, i.e., less than 80% of 200% of the Medicare Part B formula. By
electing fee schedule payment methodology, i.e.,the Medicare formula, a PIP insurer is not given
carte blanche to pretend that it is the government and apply a reduction to meet its government budget
restraints.
28. There is a bona fide, actual, present, and practical need for this Declaration, as Plaintiff
needs to determine the availability of benefits and coverage in light of Defendant’s improper
utilization of the payment files versus the Medicare Part B formula pursuant to the required Medicare
formula as required by the Court in Sunrise Chiropractic & Rehab. Ctr. v. Sec. Nat'l Ins. Co., 321 So.
3d 786, 788-89 (Fla. 4th DCA 2021).
29. When the Defendant determined that the allowable amount for a service is higher
pursuant to the applicable Medicare Part B fee schedule for 2007, the Defendant then impermissibly,
by using the 2007 payment files, applied a Budget Neutrality Adjustor, a tool for Medicare to maintain
their budget within the federally delegated range, to the Work RVU’s and Work GCPI. This results in
a lower reimbursement amount than the actual fee schedule. The Fourth District in Sunrise
Chiropractic and Rehab Ctr. found the insurer’s 2 percent reduction improper because the reduction
ran afoul of the integrity of the fee schedule. The Defendant’s application of the Budget Neutrality
Adjustor in the formula, is the same as the 2 percent reduction because it is the requirement of
Medicare to remain budget neutral without altering the actual formula. Had the Defendant utilized the
formula above, the Defendant would have reimbursed the Plaintiff properly.
30. Alternatively, when the Defendant determined the allowable amount for the service
year was higher than the allowable amount of the applicable fee schedule for 2007, the Defendant
impermissibly applied the Budget Neutrality Adjustor to the Conversion Factor within the Medicare
Part B formula. The budget neutrality adjustor has been, and remains, a tool for Medicare to maintain
their budget within the federally delegated range – not a way for the Defendant to avoid its obligation
to pay pursuant to the fee schedule formula.
31. Though Medicare can apply certain reductions to the formula in order to meet their
federally mandated budget regulations, the Defendant, a private insurer, is not permitted to use budget
deficit policies to approve and pay less. Nowhere in Fla. Stat. 627.736(5) or Defendant’s policy, is it
permitted to apply this reduction. Despite a clear, defined fee schedule formula, Defendant has not
made reimbursement pursuant to same, but has instead utilized the budget neutrality adjuster as an
additional reduction, a clear violation of the plain language of the PIP Statute and applicable policy
and, thus, additional benefits are owed to Plaintiff which is why declaration is needed.
WHEREFORE, Plaintiff demands judgment as follows:
a. That this Court declare that Defendant is overdue in payment of all sums due
to Plaintiff;
b. That Defendant pay all sums due to Plaintiff under the insurance policy issued
by Defendant including under PIP, extended PIP, misapplied deductibles and
medical payments coverages;
c. That this Court through its equitable power declare that there is coverage in
excess of what was paid by Defendant and issue a declaration in support of
coverage under Chapter 86, Florida Statutes, because of doubts arising from
rights or benefits under the insurance policy;
d. That Defendant pay interest on all unpaid sums in accordance with Section
627.736(4), Florida Statutes;
e. That Defendant pay Plaintiff pre-suit penalty, postage, and interest in
accordance with Section 627.736(10), Florida Statutes or other law;
f. That Defendant pay Plaintiff reasonable attorney’s fees and costs pursuant to
Sections 627.428, Florida Statutes, and/or 627.736(5), Florida Statutes, for the
necessity of this action; and,
g. Any other relief this Court deems just and appropriate.
Plaintiff therefore demands judgment for all declarations and damages owed, as well benefits,
interest, penalty and postage. Plaintiff further demands jury trial on all issues so triable as a matter of
right. Plaintiff reserves the right to amend this Complaint and agrees to pay any additional court filing
costs required by the Clerk or Court.
PIP PORTAL LAW GROUP, P.A. (formerly)
1380 N University Dr., Suite 200
Plantation, FL 33322
p. (954) 741-2000
f. (954) 337-4642
e. PIPPortalLaw@gmail.com (primary)
By: /s/John C. Daly____
JOHN C. DALY, ESQ.
Florida Bar No.: 98363
MATTHEW C. BARBER, ESQ.
Florida Bar No.: 63822
Preview
Filing # 147204268 E-Filed 04/06/2022 05:35:28 PM CDM CHIROS, LLC d/b/a NEW TAMPA IN THE COUNTY COURT IN AND CHIROPRACTIC AND INJURY CENTER a/a/o Ryan FOR MIAMI-DADE COUNTY, Davie, FLORIDA Plaintiff, CASE NO.: Vs. Progressive American Insurance Company, Defendant. __________________________________________/ COMPLAINT COMES NOW, Plaintiff, CDM CHIROS, LLC d/b/a NEW TAMPA CHIROPRACTIC AND INJURY CENTER a/a/o Ryan Davie (hereinafter “Plaintiff”) sues the Defendant, Progressive American Insurance Company (hereinafter “Defendant”), and in support thereof alleges the following: GENERAL ALLEGATIONS 1. This is an action for Breach of Contract, which does exceed One Dollar ($1.00), but does not exceed One Hundred Dollars ($100.00), exclusive of interest, attorney’s fees and costs. 2. Defendant was and remains a foreign or domestic corporation organized and existing under the laws of the State of Florida and is otherwise sui juris. 3. Defendant was and is a corporation authorized to do business in, maintains an office and agents in, and regularly sells automobile insurance policies to the general public in MIAMI-DADE County. 4. Defendant and the Progressive group of insurance companies have substantial identities of interest. 5. At all times material hereto, Plaintiff was a corporation duly licensed to perform medical services in the State of Florida. 6. On or about 9/13/2021, Ryan Davie (hereinafter “Claimant”) was involved in a motor vehicle accident. 7. As a result of that motor vehicle accident, Plaintiff provided Claimant with medical services and/or treatment. 8. As a direct and proximate result of the injuries sustained by Claimant in the accident, Claimant incurred reasonable expenses for necessary medical and rehabilitative care or services from Plaintiff. 9. Defendant issued a policy of insurance to Claimant or other insured which provided personal injury protection (“PIP”) benefits coverage required by law to comply with Florida Statutes Sections 627.730 thru 627.7405. Defendant is also permitted to provide more coverage than the statutory minimums. Plaintiff does not have a copy of the policy to attach; however, Plaintiff believes that the Defendant has a true and correct copy of said policy. 10. The above described policy was in full force and effect on the date of the accident and provided PIP coverage for Claimant for bodily injuries sustained in said accident. 11. Plaintiff and Claimant have performed the statutorily and contractual required conditions precedent to entitle Plaintiff to recover benefits for said necessary medical, rehabilitative and remedial services under the above-described policy. 12. Claimant equitably assigned to Plaintiff and/or also executed a written assignment of benefits, assigning to Plaintiff certain benefits payable pursuant to the policy of insurance issued by Defendant. A copy of the Assignment has been previously furnished to the Defendant. 13. Pursuant to an assignment and/or other standing, Plaintiff gave notice of the covered losses and Plaintiff made demand for PIP benefits for reasonable, necessary and related medical treatment. 14. Defendant has denied coverage for, withheld or reduced the medical bills that were submitted by Plaintiff for dates of service 09/23/2021 thru 11/10/2021. A copy of the HCFAs and/or itemized ledger was previously provided to the insurer. 15. Due to the failure of Defendant to pay these PIP benefits in accordance with the law, Plaintiff has been required to retain the undersigned law firm to act on its behalf in this suit. Plaintiff has agreed to pay, and the attorneys for Plaintiff have agreed to accept any court awarded fee. COUNT I: BREACH OF CONTRACT 16. Plaintiff re-avers and re-alleges paragraphs 1 through 15 of this Complaint. 17. Despite prior demand by Plaintiff, Defendant has refused and continues to refuse to issue payment of all sums due Plaintiff, including benefits, statutory interest, penalty and postage, in violation of Section 627.736, Florida Statutes, and in breach of its insurance policy. 18. The aforesaid breach is material and results in compensatory damages. The exact damages are unknown as they continue to accrue. 19. Plaintiff has retained the undersigned firm to represent it in this action and has agreed to pay a reasonable fee for said services or the undersigned firm has agreed to accept any court awarded fee. 20. Pursuant to Section 627.428, Florida Statutes, Plaintiff is entitled to recover from Defendant reasonable attorney’s fees and costs for the necessity of this action, even if Defendant pays all or some of the benefits after this suit is filed. 21. Any payment of a damage received after this lawsuit is filed is considered a confession of judgment. ALTERNATIVE COUNT II: PETITION FOR DECLATORY RELIEF 22. Plaintiff re-avers and re-alleges paragraphs 1-21 stated above, as if fully set forth herein and further states: 23. This is a Count for declaratory judgment, pursuant to Fla. Stat. § 86.011 Et Seq., in regard to the interpretation and construction of rights, obligations, and exclusions contained in an automobile insurance policy application and Florida Statute 627.736, namely whether the Defendant improperly utilized the Medicare Payment files as opposed to following the Medicare Part B formula for reimbursement. 24. If Defendant’s policy of insurance incorporates the schedule of maximum of schedule charges, then the policy requires the Defendant to utilize the Medicare formula when determining the allowable amounts for each CPT Code billed. 25. Based on Defendant’s explanation of benefits, it is clear that it intended to reimburse the codes pursuant to Florida Statute 627.736(5) and calculate the allowable amount pursuant to Florida Statute 627.726(5), which sets forth that the maximum reimbursement for the procedures may not exceed the applicable fee schedule or other payment methodology. 26. The participating physicians fee schedule of Medicare Part B is calculated by using a specific formula consisting of (1) the relative value units of a service (“RVU”); (2) the conversion factor for the particular year (“CF”); and (3) the geographic pricing cost index applicable to the locality in which the service was provided (“GPCI”). The formula is: [Work RVU x Work GPCI) + (Non-Facility PE RVU x PE GPCI) + (MP RVU x MP GPCI)] x Conversion Factor 27. The “schedule of maximum charges” as defined in Florida Statute 627.736(5)(a) is a payment methodology which insurance companies may utilize other than the 80% of reasonable charges methodology when reimbursing PIP benefits to medical providers. In order to avail itself of reimbursing at the schedule of maximum charges, an insurer must clearly and unambiguously elect this payment method. Rather, the issue is that the Defendant paid less than 80% of 200% of the schedule of maximum charges, i.e., less than 80% of 200% of the Medicare Part B formula. By electing fee schedule payment methodology, i.e.,the Medicare formula, a PIP insurer is not given carte blanche to pretend that it is the government and apply a reduction to meet its government budget restraints. 28. There is a bona fide, actual, present, and practical need for this Declaration, as Plaintiff needs to determine the availability of benefits and coverage in light of Defendant’s improper utilization of the payment files versus the Medicare Part B formula pursuant to the required Medicare formula as required by the Court in Sunrise Chiropractic & Rehab. Ctr. v. Sec. Nat'l Ins. Co., 321 So. 3d 786, 788-89 (Fla. 4th DCA 2021). 29. When the Defendant determined that the allowable amount for a service is higher pursuant to the applicable Medicare Part B fee schedule for 2007, the Defendant then impermissibly, by using the 2007 payment files, applied a Budget Neutrality Adjustor, a tool for Medicare to maintain their budget within the federally delegated range, to the Work RVU’s and Work GCPI. This results in a lower reimbursement amount than the actual fee schedule. The Fourth District in Sunrise Chiropractic and Rehab Ctr. found the insurer’s 2 percent reduction improper because the reduction ran afoul of the integrity of the fee schedule. The Defendant’s application of the Budget Neutrality Adjustor in the formula, is the same as the 2 percent reduction because it is the requirement of Medicare to remain budget neutral without altering the actual formula. Had the Defendant utilized the formula above, the Defendant would have reimbursed the Plaintiff properly. 30. Alternatively, when the Defendant determined the allowable amount for the service year was higher than the allowable amount of the applicable fee schedule for 2007, the Defendant impermissibly applied the Budget Neutrality Adjustor to the Conversion Factor within the Medicare Part B formula. The budget neutrality adjustor has been, and remains, a tool for Medicare to maintain their budget within the federally delegated range – not a way for the Defendant to avoid its obligation to pay pursuant to the fee schedule formula. 31. Though Medicare can apply certain reductions to the formula in order to meet their federally mandated budget regulations, the Defendant, a private insurer, is not permitted to use budget deficit policies to approve and pay less. Nowhere in Fla. Stat. 627.736(5) or Defendant’s policy, is it permitted to apply this reduction. Despite a clear, defined fee schedule formula, Defendant has not made reimbursement pursuant to same, but has instead utilized the budget neutrality adjuster as an additional reduction, a clear violation of the plain language of the PIP Statute and applicable policy and, thus, additional benefits are owed to Plaintiff which is why declaration is needed. WHEREFORE, Plaintiff demands judgment as follows: a. That this Court declare that Defendant is overdue in payment of all sums due to Plaintiff; b. That Defendant pay all sums due to Plaintiff under the insurance policy issued by Defendant including under PIP, extended PIP, misapplied deductibles and medical payments coverages; c. That this Court through its equitable power declare that there is coverage in excess of what was paid by Defendant and issue a declaration in support of coverage under Chapter 86, Florida Statutes, because of doubts arising from rights or benefits under the insurance policy; d. That Defendant pay interest on all unpaid sums in accordance with Section 627.736(4), Florida Statutes; e. That Defendant pay Plaintiff pre-suit penalty, postage, and interest in accordance with Section 627.736(10), Florida Statutes or other law; f. That Defendant pay Plaintiff reasonable attorney’s fees and costs pursuant to Sections 627.428, Florida Statutes, and/or 627.736(5), Florida Statutes, for the necessity of this action; and, g. Any other relief this Court deems just and appropriate. Plaintiff therefore demands judgment for all declarations and damages owed, as well benefits, interest, penalty and postage. Plaintiff further demands jury trial on all issues so triable as a matter of right. Plaintiff reserves the right to amend this Complaint and agrees to pay any additional court filing costs required by the Clerk or Court. PIP PORTAL LAW GROUP, P.A. (formerly) 1380 N University Dr., Suite 200 Plantation, FL 33322 p. (954) 741-2000 f. (954) 337-4642 e. PIPPortalLaw@gmail.com (primary) By: /s/John C. Daly____ JOHN C. DALY, ESQ. Florida Bar No.: 98363 MATTHEW C. BARBER, ESQ. Florida Bar No.: 63822