County Civil Court: CIVIL PROCEDURE—Summary Judgment—trial court erred in entering final summary judgment for insurance company finding as a matter of law that chiropractic physician properly paid under AMA Physician's Current Procedural Terminology code (CPT) 76120 rather than CPT code 76499 for videofluoroscopy procedures—genuine issue of material fact remains as to which code is applicable—Final judgment reversed and remanded for further proceedings.  Nu-Best Whiplash Injury Center, Inc. a/a/o Jan Avery, Gale Bauer, Lisa Colon, Dorian Domingue, Robert McAnelly, and Catalina Thomas v. State Farm Mutual Automobile Insurance Company, No. 08-000051AP-88A (Fla. 6th Cir. App. Ct. Oct. 4, 2010).












     Appellant,                                                                        Case No.: 08-000051AP-88A

                                                                                                UCN: 522008AP000051XXXXCV










Opinion Filed  ______________


Appeal from Final Judgment

Pinellas County Court

Judge Edwin B. Jagger


V. Rand Saltsgaver, Esq.

David S. Dougherty, Esq.

Attorneys for Appellant


Robert H. Oxendine, Esq.

Edwin V. Valen, Esq.

Attorneys for Appellee




            Appellant/Plaintiff Nu-Best Whiplash Injury Center, Inc., as assignee of Jan Avery, Gale Bauer, Lisa Colon, Dorian Domingue, Robert McAnelly, and Catalina Thomas, appeals the Final Summary Judgment entered in favor of Appellee/Defendant State Farm Mutual Automobile Insurance Company.  We reverse and remand for further proceedings.

            This is a case of first impression in the appeal of six cases which were consolidated in the court below.[1]  Nu-Best Whiplash Injury Center, Inc. (hereinafter "Nu-Best") filed complaints against State Farm in the six cases as the assignee of its patients Jan Avery, Gale Bauer, Lisa Colon, Dorian Domingue, Robert McAnelly, and Catalina Thomas.  Nu-Best sought to recover the remaining sums due on account for diagnostic testing and interpretive services rendered.  The tests performed were identified on Nu-Best's billing statements as "cervical digital motion x-ray (CPT code 76499)" and/or "TMJ digital motion x-ray (CPT code 76499)," with interpretive services of the testing under "CPT Code 76499-26."  State Farm paid a portion of the amount billed for these procedures which it claimed was the total due under the terms of the Personal Injury Protection coverage of the patients' automobile insurance policies and under the personal injury protection benefits statute, section 627.736(5)(b)(2), Florida Statutes (2002-2003)(hereinafter "the PIP statute").[2]

            The American Medical Association (AMA) has approved designated codes for diagnostic procedures and medical treatments known as the AMA Physician's Current Procedural Terminology (CPT) code.  Section 627.736(5)(e) provides that all billings for services under the PIP statute, to the extent applicable, shall follow the CPT code guidelines.  The CPT "is a common billing reference for insurers and providers, enabling both parties to classify, bill for, and pay [for] various medical services accurately and in compliance with the guidelines."  Diblasio v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 1027a (Fla. 15th Cir. App. Ct. Aug. 13, 2007).

            State Farm filed an amended motion for summary judgment stating that Nu-Best's consolidated action was brought to recover sums due on bills submitted for videofluoroscopy test procedures.  State Farm asserted that it paid the amount specified for videofloroscopy utilizing the CPT code for such a procedure, 76120, which is the designated code for "cineradiography/videoradiography, except where specifically included."  The sum paid to Nu-Best was the maximum reimbursement allowance under the workers' compensation fee schedule as required by section 627.736(5)(b)(2).  State Farm claimed that it had met its statutory obligation for payment of Nu-Best's bills under the PIP statute, there was no material issue of fact, and State Farm was entitled to judgment as a matter of law. 

            Although it filed an index with the cases upon which it intended to rely, Nu-Best did not file a written response to State Farm's motion.  At the summary judgment hearing Nu-Best argued that the correct CPT code for videofloroscopy procedures is 76499: the code identified for "unlisted diagnostic radiologic procedure."  Deposition evidence was presented by the parties that indicated payment under the workers' compensation fee schedule for code 76120 would be a maximum payment of $158.  Payment under code 76499 in the workers' compensation fee schedule is noted as "BR" which means "by report" providing for a maximum payment of the usual, customary, and reasonable fee for services.

            On June 19, 2008, the trial court entered an order granting summary judgment for State Farm and made the specific finding that in each case a videofluoroscopy test procedure had been performed.  The trial court found that State Farm paid the claims under the appropriate CPT Code designation (76120) and it concluded that State Farm met its statutory obligation under the PIP statute and Nu-Best was not entitled to any recovery.  On December 4, 2008, Nu-Best's motion for rehearing was denied.  On January 29, 2009, a final summary judgment was entered for State Farm.[3] 

Standard of Review

            The appellate court is to employ a de novo review of an order granting summary judgment.  JP Morgan Chase v. New Millennial, LC, 6 So. 3d 681, 684 (Fla. 2d DCA 2009).  Summary judgment should be granted “only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, and (2) the moving party is entitled to a judgment as a matter of law.”  Knowles v. JPMorgan Chase Bank, N.A., 994 So. 2d 1218, 1219 (Fla. 2d DCA 2008)(citations omitted).


            Nu-Best argues on appeal that the entry of the final summary judgment in favor of State Farm was error for several reasons.  The main argument presented is that the trial court erred when it decided as a matter of law that the CPT code for the services rendered by Nu-Best was 76120.  Further, Nu-Best claims that the trial court erred when it decided the videofluoroscopy machine used by Nu-Best was synonymous with the cineradiography or videoradiography machines.  Nu-Best asserts that the evidence is in conflict as to these issues and there remains a material question of fact that could not be determined by the trial court on summary judgment.

            Deposition testimony was received from Dr. John Postlethwaite, the chiropractic physician who is the owner of Nu-Best; Michael Miscoe, a CPT coding expert who is certified as a professional coder with the American Academy of Professional Coders; Patricia Moyer, a Tampa State Farm claim representative who evaluates all the claims in her office in which the Workers' Compensation Fee Schedule is to be applied; and Michael Beebe, the Director of the CPT for the AMA.  This Court finds that upon a review of the record, there is conflicting testimony concerning which CPT code is applicable to the services provided by Nu-Best.  The testimony presented in the depositions creates an issue of fact concerning the differences in the videofluoroscopy machine, the cineradiography machine, and the videoradiography machine; the manner in which the machines are used; and whether these differences are relevant when determining the CPT code to be used for billing.


            On appeal, this Court reviews the evidence presented to the trial court with every possible inference in favor of Nu-Best as the non-moving party.  Based on this standard of review there is a genuine issue of material fact concerning which CPT code should be utilized for videofluoroscopy procedures.  See Knowles, 994 So. 2d at 1219.  State Farm is not entitled to judgment as a matter of law. 

            The Court shall not address the remaining arguments raised by Nu-Best.  Accordingly, the final summary judgment is reversed and this matter is remanded to the trial court for further proceedings.

            Reversed and remanded.

            DONE AND ORDERED in Chambers, in Clearwater, Pinellas County, Florida, this ____ day of ________________, 2010.



Original order entered on October 4, 2010 by Circuit Judges Linda R. Allan, George W. Greer, and John A. Schaefer.


Copies furnished to:


V. Rand Saltsgaver, Esq.

P.O. Box 536096

Orlando, FL 32853-6096


David S. Dougherty, Esq.

2692 W. Lake Mary Blvd.

Suite 1010

Lake Mary, FL 32746


Robert H. Oxendine, Esq.

Edwin V. Valen, Esq.

14428 Bruce B. Downs Blvd.

Tampa, FL 33613

[1]  The six complaints filed in case numbers 05-001805SC-SPC, 05-008078SC-046, 05-008079SC-046, 05-008080SC-046, 05-008081SC-SPC, and 05-009007SC-SPC were consolidated and involved tests and services rendered on November 20, 2002, July 18, 2003, July 22, 2003, October 30, 2003, December 17, 2003, and January 21, 2004.


[2]   The 2002-2003 version of section 627.736(5)(b)(2), the PIP statute, stated:

            Charges for medically necessary cephalic thermograms, peripheral thermograms, spinal ultrasounds, extremity ultrasounds, video fluoroscopy, and surface electromyography shall not exceed the maximum reimbursement allowance for such procedures as set forth in the applicable [Florida Workers' Compensation] fee schedule or other payment methodology established pursuant to s. 440.13.

(Emphasis added).

[3]   On March 13, 2009, an order denying Nu-Best's motion to stay the proceedings was entered. The order stated that the hearing on State Farm's motion for attorneys' fees would be limited to the issue of entitlement.  The order noted that the parties had stipulated to a "Stay of Execution" of any judgment of attorneys' fees and costs pending the resolution of this appeal.  On April 7, 2009, an order granting in part and denying in part State Farm's motion for attorney's fees was entered.