Florida Personal Injury Magazine • Apr-Jun 2024

PERSONAL INJURY

KNOWING THE DIFFERENCE BETWEEN BRACING CLASSIFICATIONS

INSURANCE GAMES WITH PIP PAYOUT LOGS

PERSONAL INJURY SUMMIT COMING TO FT. LAUDERDALE

HUMAN ERROR, LEGAL CONSEQUENCES: A DEEP DIVE INTO CYBERSECURITY

BEST PRACTICES

HOW DO YOU OBJECTIVELY QUANTIFY PAIN FOR IMPAIRMENT RATINGS? PAIN

SUCCEEDING UNDER TORT REFORM

PART 3: SATISFIED

VS. UNSATISFIED MEDICAL BILLS

DON’T LET YOUR SLIP AND FALL CASE SLIP AND FALL THROUGH THE CRACKS

OUR EASY EMC EXAMS can be done from patients’ smartphone while at HOME or anywhere convenient

◦ We bill PIP directly at no cost to you

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◦ HIPPA-Compliant Portal where your patients’ medical reports can be accessed 24 hours a day, 7 days a week

◦ Referral form available on website and/or we can send a copy via email or fax

◦ Call to discover how easy and convenient our exam process is

HOW DO YOU OBJECTIVELY QUANTIFY PAIN FOR IMPAIRMENT RATINGS?

PERSONAL INJURY SUMMIT ORLANDO MARCH 23 HIGHLIGHTS

KNOWING THE DIFFERENCE

BETWEEN BRACING CLASSIFICATIONS

INSURANCE GAMES WITH PIP PAYOUT LOGS

DON’T LET YOUR SLIP AND FALL CASE SLIP AND FALL THROUGH THE CRACKS

HUMAN ERROR, LEGAL CONSEQUENCES: A DEEP DIVE INTO CYBERSECURITY BEST PRACTICES

SUCCEEDING UNDER TORT REFORM PART 3: SATISFIED VS. UNSATISFIED MEDICAL BILLS

From the Editor

WELCOME TO THE PERSONAL INJURY MAGAZINETM !

And what an amazing first half of the year it has been! We’ve not only been able to provide you with quality information to help improve your personal injury practice, but we are now making it available to many more thousands of legal and medical professionals by adopting our fully digital strategy. What’s best of all, we continue to do so at no cost to our readers, which is part of our vision to be your trusted resource for all things personal injury and to be easily available to all.

We also hosted a successful Personal Injury Summit™ in Orlando on Saturday, March 23rd, 2024. Take a look at the pictures on page 10, you can almost feel the energy in the room! We had an amazing lineup of expert speakers, and the connections everyone made were invaluable. We had professionals from the personal injury industry join us, not only from Florida, but from all over the country! If you missed it, you will not want to miss our next one coming up on Saturday, June 1st, 2024 at the Tower Club in Fort Lauderdale. Vendor spots and tickets are limited, so register now at buytickets.at/ambgroup. I can’t wait to see you there!

As always, I’d like to thank our incredible partners, PI Summit sponsors and advertisers who are here to support you in your PI practice. I hope you enjoy the articles we’ve put together for you in this issue and encourage you to reach out to our advertisers who have a wealth of knowledge and resources to help your business grow. I also welcome you to contact me directly should you like to offer any feedback or have a particular topic you’d like for us to address. We’re at your service!

Sincerely,

Angely C. Maria EDITOR IN CHIEF

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By Erik Groberg

According to the AMA Guides, “Pain is an essential determinant of the incapacitation of many individuals who undergo impairment evaluation. When pain persists, it has the capacity to dominate a person’s existence, contributing to significant impairment, reduction in the quality of life, functional limitations, and disability.”

An impairment rating quantifies the injury and scales the impairment’s severity. This rating acts as one of the most important pieces of information for determining case settlement outcomes in auto insurance claims. It carries immense weight in the determination of case settlement values and the amount of financial compensation an injured party is entitled to receive.

The AMA Guides operate under the premise that injuries cause deficits in functioning and can be quantitatively assessed during an impairment evaluation and consider pain intensity, emotional distress related to pain, and ADL deficits secondary to pain. The Guides give the greatest weight to interference with ADL’s.

Traditionally, pain assessment has relied on subjective means such as patient-reported findings (0-10 Analog Score) or pain questionnaires. According to the Guides, “A basic challenge for a system of rating pain-related impairment is to incorporate the subjectivity associated with pain into an impairment rating system whose fundamental premise is that impairment assessment should be based on objective findings.” For pain to be considered in an impairment rating, it must be quantified in the evaluation. If pain-related impairment is ratable, the examiner may award a pain-related increase of an impairment rating score.

Algometry testing: An objective assessment of pain Algometry testing is an objective, quantifiable method for assessing pain. Because of its reliability and reproducibility, algometry can be used for medico-legal documentation of pain intensity. Algometry testing measures pressure applied to specific locations on the patient. Pressure Threshold Testing is the minimum pressure required to cause the patient pain. Measurements are performed over areas of muscle tenderness at specific trigger points.

Normative data exists for males and females in the areas which trigger points are frequently found. Clinical cutoff values have also been established in determining a clinically abnormal response to pain/pressure

HOW DO YOU OBJECTIVELY QUANTIFY PAIN FOR IMPAIRMENT RATINGS?

stimulus. Bilateral deficits from the opposite side are also considered positive Algometry test findings.

Duties Under Duress/Loss Of Enjoyment Of Life

Duties Under Duress (DUD) and Loss Of Enjoyment of Life (LOE) are two of the largest value drivers auto insurance companies take into account which can significantly contribute to increased case settlement values. DUD relates to pain experienced while performing an activity despite pain they experience, while LOE relates to a person unable to continue performing an activity due to an injury. This can include work, household/ domestic activities, hobbies, and recreational activities.

Two things are needed for auto insurances to assign a value for DUD/LOE:

1. Experiencing pain while performing an activity.

2. Documentation of the activity and pain in medical records.

In addition to quantifying pain through Algometry testing, documenting pain-related behaviors during the physical examination can also assist in validating injury severity. Examples include documenting patient-reported complaints of pain during ROM testing and observations of pain-related behaviors such as wincing/grimacing during testing and correlating these to DUD/LOE to further validate injury severity.

Objectively assessing pain through Algometry testing further facilitates meeting the value drivers used by auto insurance companies in determining case settlement outcomes, and ensures your patients and clients receive the fair case settlement value they deserve. ■

Erik Groberg

CLINICAL DIRECTOR AT JTECH MEDICAL

map-marker-alt 7633 S. Main St. Bldg. D Midvale, UT 84047

phone-alt (385) 695-5011

envelope erikg@jtechmedical.com

info-circle www.jtechmedical.com

EXPERIENCE SOLUTIONS WITH INJURY ASSISTANCE NETWORK

About Us

Injury Assistance Network is Florida’s leading online service providers’ directory. This initiative, led by Michael Mills, Esq., serves as a meeting hub where personal injury attorneys connect with doctors and medical providers. The directory also helps patients and victims in need of personal injury medical and financial services find high-quality providers.

For years, this platform has supported skilled personal injury attorneys find great medical and service providers for their clients. Now, we are excited to announce that we are bringing this service to personal injury attorneys as well, allowing victims who have been injured at no fault of their own to find top notch personal injury Attorneys to assist them with their case.

Thanks to our verified provider profiles, we assist personal injury Attorneys and medical providers in expanding their client base and gaining instant credibility and recognition. In addition, our members can now use our digital marketing services to improve their online presence and connections. Contact us today to learn more.

DON’T LET YOUR SLIP AND FALL CASE SLIP AND FALL THROUGH THE CRACKS

By Michael Mills, Esq.

Slip and fall cases have long been the albatross of the personal injury industry. Now, with the implementation of the Florida Tort Reform Act 768.0427 it has become even more of a task to be able to successfully handle these types of cases. This starts with the victim following practical measures after a slip and fall incident occurs.

First, when the incident occurs, as difficult as it may be, it is very important that the victim document the conditions that lead to the slip and fall occurring. That means if there is liquid on the floor, they want to take pictures of the liquid before the premises staff or manager cleans it up. If there are track marks or footprints through the liquid, be sure to capture those images. Additionally, make sure to alert the store or premises manager so that they can create an incident report. Request a copy of the incident report for your own records. Please note that some stores will provide them with a copy of the report while others may not, due to their work product privilege. This is one of the reasons it’s so important to have your own documentation.

After completing the incident report, the victim should immediately get examined either at the emergency room or an urgent care facility. Be sure to recall to the medical provider every detail to paint a clear picture of exactly how the incident occurred and how it led to the injury. Proximity of the medical treatment to the injury is always something that the insurance adjuster will try to use to decrease the value of the case if it did not immediately occur.

Now, based on the injury that the victim suffered in the slip and fall, their medical provider will come up with a treatment plan to help them to get better. The treatment plan will usually begin with conservative care, such as chiropractic care or physical therapy, depending on the injury, and then graduate to more invasive care if the victim’s injury is not responding to conservative care. The type of treatment prescribed will also depend, in large part, on the diagnostic imaging results once the victim is sent for an MRI. The most important thing is that the victim must remain compliant with the doctor’s orders. Failure to do so makes the

Proximity of the medical treatment to the injury is always something that the insurance adjuster will try to use to decrease the value of the case if it did not immediately occur.

attorney’s job much more difficult to relate the injury and need for care to the injury suffered as a result of the accident.

Remember, although slip and fall cases can be difficult, a slip and fall victim’s case is due the same amount of vigor and aggressiveness that a car accident victim receives. It’s important that you follow the above recommendations to give yourself the best chance of success. ■

HUMAN ERROR, LEGAL CONSEQUENCES: A DEEP DIVE INTO CYBERSECURITY BEST PRACTICES

By Jairo Avila

Human error remains the Achilles' heel of law firms or medical practices’ cybersecurity.

As a partner at Internos, I've had the privilege of working with legal professionals, and I'm eager to discuss this vulnerability and how law firms and medical practices can fortify their defenses against potential legal consequences.

Understanding Human Vulnerability

Human error is something we have to think about. We are not perfect. We make mistakes. We’re emotional beings and sometimes we’re not at our best.

People, processes and technology determine your level of cybersecurity. When you have amazing tech and don’t have the technical know-how to use it, it’s like having an 800-horsepower car but you never drive more than 20 miles per hour.

Processes determine your level of organizational security, and together, combined with your people, is how you get the best out of all three elements.

Balancing Accessibility and Security

Achieving a balance between accessibility and security means not taking for granted or making any assumptions about your technology and processes.

Many small business leaders like to think cybercrime won’t affect them. Unfortunately, that belief is challenged when they or someone close to them is targeted.

Here’s the reality: Nothing is more secure or less secure than anything else. Every system has to be properly configured and maintained.

PII and Leveraging Technology

The number one thing law firms and medical practices need to focus on is protecting PII (personal identifiable information). Ask yourself, “Where do we store and how do we share PII?” That leads us to focus on where you need hardening for protection.

You can follow all the standard practices like updating, multi-factor authentication and SaaS tools, but you need to make sure everything is properly configured and figure out who is accessing what.

Ask yourself, “Am I exposing more than is necessary?”

It would be easy to say there’s a one-size-fits-all solution, but because all environments are different, things are used differently, and for many other reasons that aren’t always logical, security solutions must be customized.

The Current Cybercrime Landscape

The rise of cyber incidents and the damage they’ve caused has changed drastically and cybercrime has gone up exponentially in the past three years. You should

make sure the premiums you pay out for cyber insurance will give you coverage in the event of an incident.

We, as technology providers, owe it to ourselves and our clients to better educate them on how things have changed. That’s why we take the time to talk about the latest threats with our clients and with others in our sphere of influence, like readers of this magazine.

Cultivating a Security-Conscious Mindset

The biggest failure anyone can have is thinking cybercrime won’t happen to them. It’s also a challenge when business owners are afraid or embarrassed to admit that they’ve been a victim. As experts in this field, we know these crimes are under-reported.

People, processes and technology determine your level of cybersecurity. When you have amazing tech and don’t have the technical know-how to use it, it’s like having an 800-horsepower car but you never drive more than 20 miles per hour.

If people were more open and honest about when things were going wrong, everyone would be more prone to safeguard against these types of incidents, proactively instead of reactively.

The strength of a law firm or medical practice’s cybersecurity is not just a matter of protecting PII but also a testament to its commitment to client trust and professional integrity. ■

Jairo Avila

PARTNER AT INTERNOS

map-marker-alt 5781 B NW 151st Street, Miami Lakes, FL. 33014

phone-alt (305) 590 5333

envelope javila@gointernos.com

info-circle www.gointernos.com

By Matt Snyder

KNOWING THE DIFFERENCE BETWEEN BRACING CLASSIFICATIONS

One of the most common questions our company gets regarding the billing and coding of orthopedic bracing is what type of brace to prescribe and dispense? When it comes to bracing, the two main classifications are off-the-shelf and custom prefabricated. Knowing the difference can be very important in order to remain compliant.

The first type of orthopedic bracing is custom prefabricated. Examples of these codes for lumbar braces are L0627, L0631 and L0637. These braces are required to be trimmed, bent, molded, assembled, or otherwise customized to fit a specific patient by an individual with expertise. You may ask, who is considered a person with expertise? This becomes a bit complicated based on the insurance you are billing. According to Medicare, a person with expertise is an Orthotist/ Prosthetist, MD, DO, APRN or PA.

What is required to custom fit a brace? Many of the bracing manufacturers provide documentation worksheets showing the steps needed to customize a specific brace whether it be lumbar, knee or wrist. This includes steps on how the patient was measured, how the product was trimmed, and/or how it was molded to specifically fit the patient. This document needs to be filled out in detail to remain compliant when dispensing these custom prefabricated braces.

The second type of orthopedic bracing is the off-theshelf or OTS. OTS braces are the most common braces being dispensed by providers. According to CGS Medicare, these braces require minimal self-adjustment for fitting at the time of delivery. Fitting these OTS braces does not require fitting by a person with expertise. Essentially, these braces should be able to be taken out of the package and adjusted to fit the patient by simply reading the instructions.

The reimbursement between the custom prefabricated and the off-the-shelf does differ. Since there is more of a fitting required, the custom prefabricated braces reimburse higher. Many of the brace manufacturers have had their products dual-coded. This

When it comes to bracing, the two main classifications are off-the-shelf and custom prefabricated. Knowing the difference can be very important in order to remain compliant.

way, physicians can choose how they would like to fit the patient. Many patients need more of a custom fit, and others just need a standard fit. One code will be the custom prefabricated code and one will be the OTS code. When dispensing orthopedic bracing it is very important to know the difference between the different classifications. At JMS Med Supply, we can provide physicians and billing personnel with the necessary documents in order to bill both classifications of orthopedic bracing. ■

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SUCCEEDING UNDER TORT REFORM

Part 3 - Satisfied vs. Unsatisfied Medical Bills

By Aaron Proulx, Esq.

This is the third article in a series that lights the way to success under Florida Tort Reform’s Section 768.0427. This article will provide a deeper analysis of the distinctions between Subsections (2)(a) and (2)(b) and lay the foundation for the deeper dives into the four parts of Subsection (2)(b) that will be presented in later articles.

Section 2 of the Statute governs admissible evidence to prove the amount of damages for medical services. Subsection (2)(a) applies to bills for past medical services that have already been satisfied and Subsection (2)(b) applies to such bills that have not been satisfied.

Subsection (2)(a) states:

(a) Evidence offered to prove the amount of damages for past medical treatment or services that have been satisfied is limited to evidence of the amount actually paid, regardless of the source of payment.

First, because Subsection (2)(a) deals with admissibility rather than pre-trial discovery, the relevant time to consider the satisfaction of bills is the date of trial. Thus, Subsection (2)(a) applies only to bills satisfied before trial. Second, the only evidence a plaintiff can present to a jury is the amount that was paid to satisfy the bill. Thus, a plaintiff cannot present a medical provider’s charged amount. Third, Subsection (2)(a) applies to all pre-trial payment sources: (a) commercial health insurance (including out-of-network payments which can be 100% of the charged amount), (b) government programs, and (c) self-pay patients.

Importantly, Section 4 of the Statute states that a jury award cannot exceed the amount that a jury may consider under Section 2. Thus, the jury cannot award more than the amount that was paid to satisfy a bill before trial.

Subsection (2)(a) cannot apply to (a) commercial health insurance payments that were not yet made at the time of trial, such as when a health insurer denies payment and the denial is under appeal at the time of trial; (b) reimbursements from a patient or the patient’s law firm that occur after trial; nor (c) assignments of medical bills to purchasers of accounts receivable.

Subsection (2)(b), on the other hand, applies to evidence relating to unsatisfied medical bills:

(b) Evidence offered to prove the amount necessary to satisfy unpaid charges for incurred medical treatment or services shall include, but is not limited to, evidence as provided in this paragraph.

First, Subsection (2)(b) applies whenever a medical provider (a) does not take health insurance at all, (b) opts out of Medicare, (c) takes health insurance, but (i) permits patients to waive use of health insurance so the patients can avoid co-payments, (ii) uses modalities that health insurance will not reimburse, or (iii) fails to properly submit bills, or (d) sells the account receivable to a third party. Second, Subsection (2)(b) expressly states that the evidence that can be presented regarding unsatisfied charges is “not limited to” the evidence expressly rendered admissible in the four parts contained within Subsection (2)(b). This is critical because Subsection (2)(b)(5) is a “catchall” that renders admissible “any evidence of reasonable amounts billed.” For reasons that cannot be addressed in this short article, Subsection (2)(b)(5) will include charged amounts. Thus, unlike Subsection (2)(a), Subsection (2)(b) does allow a plaintiff to present a provider’s charged amount.

Importantly, Section 4 of the Statute allows a jury to award an amount that the jury was permitted to consider under Section 2. Because Subsection (2)(b) allows a jury to consider charged amounts, a jury may award the full charged amount. The subject of upcoming articles is how to convince a jury to award an amount approaching the full charge. ■

INSURANCE GAMES WITH PIP PAYOUT LOGS

A PIP payout log is by no means the end-all to be all to what the insurance company paid. In exhaustion of benefits cases, the best practice to truly verify of benefits are exhausted is to review explanations of review and copies of canceled checks

By George A. David, Esq

PIP payout logs can be invaluable tools to determine whether benefits are exhausted or if an insurance company has paid medical providers the correct amount of interest and medical bills. Insurance companies are hard-pressed to produce PIP payout logs before litigation. This is because a not-so-thoughtful District Court of Appeals ruled that an insurance company is not required to produce a PIP payout log pre-suit on the grounds that it would cause increased litigation if PIP payout logs were produced pre-suit. Later, the Florida Legislature amended the PIP statute that required insurance companies to produce PIP payout logs within 30 days of receipt of a request, but this can only be done post-suit.

The PIP law also requires an insurance company to inform a medical provider within 15 days of the date that an insurance company exhausts its PIP policy limits that its benefits are exhausted. But how can a medical provider verify if benefits are truly exhausted pre-suit? A medical provider is out of luck on this one because the only time an insurance company is required to give a medical provider a PIP payout log is after a lawsuit is filed. This means that the only way to truly verify if benefits are exhausted is to file a lawsuit. How the District Court of Appeals’ rationale that preventing a PIP payout log to be produced pre-suit will slow litigation is a complete mystery and is another example of how District Courts of Appeals can sometimes misunderstand PIP law.

PIP payout logs are also notoriously incorrect. Let’s face it, anyone can create a PIP payout log and put anything on it. PIP payout logs are not statements under oath and can be inaccurate with no penalty to an insurance company. I have seen PIP payout logs that list medical providers that have never made a PIP claim, and show payment to those medical providers; PIP payout logs that list interest as a “medical bill”; PIP payout logs that have wrong dates of service and wrong amounts of medical bills. It is to the advantage of the insurance company to include as much as possible listed on a PIP payout log to reach its $10,000.00 policy limits to claim that benefits are exhausted as an excuse to deny medical bills. So, a medical provider must verify the accuracy of a PIP payout log as a PIP payout log is simply a guide to the amount of medical bills that have been paid. A PIP payout log is by no means the end-all to be all to what the insurance company paid. In exhaustion of benefits cases, the best practice to truly verify of benefits are exhausted is to review explanations of review and copies of canceled checks. ■

your go-to law firm in Florida serving Medical providers in presenting PIP claims

Personal injury attorneys who are not familiar with the intricacies of PIP law

We are the law firm that is not afraid of difficult cases. We handle all cases, including the more difficult cases such as where insurance companies deny claims because:

◦ $10,000.00 policy limits are exhausted

◦ Material misrepresentation

◦ Fraud

◦ Invalid reductions in medical bills

◦ Failure to appear to examinations (EUOs) under oath or “independent” medical examinations (IMEs)

We work with medical providers in EUO and IME requests from insurance companies. We also will co-counsel with personal injury attorneys in making a special appearance in scheduling and appearing to EUOs and IMEs. We are available to answer any PIP questions. Just call or email us.

George David represented insurance companies from 1991 up until 2001. Since 2001 George David has been representing medical providers in PIP suits. We know all the insurance companies’ tricks. We handle cases throughout Florida and have suits filed in the Tampa, Tallahassee and South Florida areas. Our main office is in Coral Gables.

2024 LEGISLATIVE UPDATE

By Christopher M. Tuccitto, Esq.

Thankfully, the 2024 legislative session has ended without inflicting any cataclysmic changes on the Personal Injury industry. Although none of them passed, there were some bills introduced in this session that are worth our attention, because they may be resurrected in future sessions.

MOTOR VEHICLE INSURANCE – HB 653 and the identical SB 464 is a perennial effort to do away with Personal Injury Protection (PIP) coverage under Florida’s No-Fault insurance law and replace it with bodily injury (BI) liability coverage. The primary difference between PIP and mandatory BI is that under PIP, someone injured in an auto accident seeks coverage first under their own PIP policy, whereas under mandatory BI, someone injured in an auto accident would seek recovery from a responsible third party’s (other driver’s) BI coverage. The bills are like the bill vetoed in 2022 by Governor DeSantis and filed again in 2023. Last spring’s bills were never heard by a committee and neither of these bills received a hearing this session.

INSURANCE CLAIMS – HB 731 passed its first committee on February 6th, 2024 by a 15-1 vote in the House Insurance & Banking Subcommittee. It requires insurance companies to report to the Office of Insurance Regulation (OIR) the recovery of funds from automobile claim judgments, settlements, and attorney fees and costs, as well as repayment of claims paid from unlawful acts. OIR, in turn, would be required to consider recovery of those funds in reviewing companies’ rates. The bill also specifies that a policyholder’s payment of a deductible or copayment is not a condition of a carrier’s payment obligations. There is a similar bill in the Senate (SB 1024) that never received a hearing.

LITIGATION FINANCING – SB 1276 and HB 1179 are identical bills to regulate third-party financing of lawsuits against businesses. The bill requires a court’s consideration of potential conflicts of interest that may arise from the existence of a litigation financing agreement in specified circumstances; prohibits specified acts by litigation financiers; requires certain disclosures related to litigation financing agreements and the involvement of foreign persons, foreign principals, or sovereign wealth funds; and requires the indemnification of specified fees, costs, and sanctions by a litigation financier in specified circumstances, among other provisions. Despite the Senate bill making it through all committees and the House bill getting through its initial committee, neither reached a floor vote.

ATTORNEY’S FEES – SB 1782 and HB 1651 both seek to reestablish the right to attorney’s fees for the prevailing Plaintiff in a PIP lawsuit. As I’m sure you recall, the

passing of HB 837 last year removed this right, which was previously in existence since 1896. Unfortunately, despite their noble efforts, neither of these bills have received much traction within the legislature, with neither of them advancing beyond the initial committees that reviewed them in early January.

WORKER’S COMPENSATION – SB 362 and HB 161 are related bills that seek to increase a health care provider’s witness fee for a deposition and the reimbursement amounts under Worker’s Compensation for physicians and surgical procedures. Both the Senate and House bill would increase the medical provider’s witness fee to $300.00 per hour. The Senate bill increases the maximum reimbursement for a physician licensed under chapter 458 or chapter 459 and for surgical procedures to 200% of the Medicare allowable amount. The House bill would raise Worker’s Compensation reimbursement amounts to 150% of Medicare. While both bills were advancing through committees in January and February 2024, both the Senate and the House have decided to postpone consideration of these bills, at least temporarily. Due to this postponement so late within the session, neither version had a chance of passing this year.

Based on the above, 2024 was a relatively uneventful year for our industry when it comes to legislative changes. Lately, it seems that no change is good for us, although it would’ve been nice to have attorney’s fees reinstated in PIP lawsuits. Maybe this bill will gain greater traction in future sessions if it is reintroduced. We shall see. Stay tuned. ■

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