09-006876 Guarantee Insurance Company vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed Recommended Order on Thursday, June 17, 2010.

Summary: Respondent and Intervenor established that the proper billing code was used, consistent with the agency's long-standing interpretation of its rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUARANTEE INSURANCE COMPANY, )

)

Petitioner, )

)

vs. )

) Case No. 09-6876

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF )

WORKERS’ COMPENSATION, )

)

Respondent, )

)

and )

)

MIAMI BEACH HEALTHCARE GROUP, )

LTD., d/b/a AVENTURA HOSPITAL )

AND MEDICAL CENTER, )

)

Intervenor. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on March 24

and 25, 2010, in Tallahassee, Florida, before Barbara J. Staros,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Cindy R. Galen, Esquire

Eraclides, Johns, Hall, Gelman

Johannssen & Goodman, LLP

2030 Bee Ridge Road

Sarasota, Florida 34239

For Respondent: Mari H. McCully, Esquire

Cynthia Jakeman, Esquire

Department of Financial Services

Division of Workers’ Compensation

200 East Gaines Street

Tallahassee, Florida 32399

For Intervenor: Richard M. Ellis, Esquire

Rutledge, Ecenia & Purnell, P.A.

119 South Monroe, Suite 202

Post Office Box 551

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue is what is the correct amount of workers’

compensation reimbursement to Aventura Medical Center for

emergency services rendered to patient J.R. for a work-related

injury?

PRELIMINARY STATEMENT

On November 18, 2009, the Department of Financial Services,

Division of Workers’ Compensation (the Department) issued a

Workers’ Compensation Medical Services Reimbursement Dispute

Determination (the Determination) pursuant to Section 440.13(7),

Florida Statutes, finding that Guarantee Insurance Company

(Guarantee) must reimburse Aventura Hospital and Medical Center

(Aventura) a total amount of $7,408.10 for services rendered to

injured employee J.R.

Petitioners Guarantee and Qmedtrix Systems, Inc. (Qmedtrix)

timely filed a Petition for Administrative Hearing challenging

the Determination.

The Petition was transmitted to the Division of

Administrative Hearings on or about December 18, 2009. Aventura

filed a Petition to Intervene, which was granted. A telephonic

motion hearing was held on March 5, 2010. Following the

hearing, the undersigned entered an Order on Pending Motions

which denied the Department’s Motion for Summary Recommended

Order, granted Petitioners’ Motion to Redact Public Information

from Exhibits, and granted Petitioner’s Motion to Amend. As a

result, the style of the case was amended to reflect that

Qmedtrix was no longer a party in this proceeding, and that

Guarantee became the sole Petitioner. Aventura’s Unopposed

Motion for taking Official Recognition was granted.

The case proceeded to hearing as scheduled on March 24 and

25, 2010. Case numbers 09-6875 and 09-6877 were heard

simultaneously with this case, but the three cases were not

consolidated. Separate Recommended Orders will be entered for

those related cases.

At hearing, Aventura presented the testimony of Allan W.

March, M.D. Aventura offered Exhibits numbered 8 through 14,

24, 25, 27, and 28, which were admitted into evidence. The

Department adopted Aventura’s case-in-chief as its own.

Petitioner presented the testimony of William von Sydow and

David Perlman, M.D. Petitioner’s Exhibits numbered 1, 5, 10,

15, 16, 19, 20, 21, and 28 were admitted into evidence. Rulings

were reserved on Petitioner’s Exhibits 8, 9 and 18. Upon

consideration, Petitioner’s Exhibits 8, 9 and 18 are rejected. 1/

Petitioner's Exhibit 7 was proffered.

A four-volume transcript was filed on April 12, 2010. The

parties timely filed Proposed Recommended Orders which have been

duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Guarantee, is a carrier within the meaning

of Subsections 440.02(4) and (38), Florida Statutes, and Florida

Administrative Code Rule 69L-7.602(1)(w).

2. Respondent, the Department, is charged with the review

and resolution of disputes regarding the payment of providers by

carriers for medical services rendered to injured workers. The

Department has exclusive jurisdiction to decide reimbursement

disputes. § 440.13(7) and (11)(c), Fla. Stat.

3. Intervenor, Aventura, is a health care provider within

the meaning of Subsections 440.13(1)(h), Florida Statutes.

Aventura is an acute care hospital located in Aventura, Miami-

Dade County, Florida.

4. On May 27, 2009, Aventura provided emergency services

to the patient J.R., a 41-year-old male, who was injured at his

place of work. J.R. was examined by Aventura’s emergency

department physician. He received two Computed Tomography

received a urinalysis, a complete blood count (CBC), and an

X-ray of his left side and ribs. J.R. was discharged after

these tests.

5. Aventura’s total charges for J.R.’s outpatient

emergency services were $9,877.47. Aventura submitted its claim

for reimbursement using the standard “uniform billing” form,

UB-04. The UB-04 sets out each service provided to J.R., the

individual charge for each service, and the total charge. The

individual services on the UB-04 submitted for patient J.R. are

listed as follows: comprehensive metabolic; assay lipase;

amylase syrum; automated hemocram; urinalysis; X-ray of the ribs

and chest; X-ray of the abdomen; contrast CT scan of the pelvis;

contrast CT scan of the abdomen; the emergency department visit

itself, and low osmolar contrast media (LOCM).

6. Aventura’s claim was received by MCMC, an organization

described as a “third-party administrator,” and was referred in

turn to Qmedtrix. Qmedtrix is a medical bill-review agent

located in Portland, Oregon. Qmedtrix performs bill review by

referral from carriers and third-party administrators, and

performed a bill review for Guarantee of the bill submitted by

Aventura. For its compensation, Qmedtrix is paid a percentage

of the difference, if any, between the amount billed by the

facility and the amount paid by the carrier.

7. Following Qmedtrix’ review, Aventura received a check

from Guarantee in the amount of $6,987.21, along with an

“Explanation of Medical Benefits” review (EOBR), which is

required to be sent along with the bill payment.

8. The EOBR sets out the 11 individual components of

Aventura’s claim, and indicates that the first nine were

approved for reimbursement at 75 percent of the charge billed by

Aventura. The tenth component is the charge for the emergency

department visit itself. For that charge, Aventura billed

$722.00, of which 75 per cent would be $541.50. The EOBR

indicates the corresponding 25 percent discount from billed

charges ($180.50) under a column entitled “MRA,” and indicates

further that an additional reduction of $143.28 was applied,

leaving an approved payment of $398.22 for the emergency room

component of the claim. The additional reduction of $143.28 is

under a column entitled “Ntwk Redc,” and the narrative

explanation under the total payment states, ”The network

discount shown above is based on your contract with the

network.” Guarantee conceded at hearing that there was no

contract applicable to the claim. The eleventh and last

component is the charge for the LOCM, which was completely

disallowed with the explanation, “Correction to a Prior Claim.”

The EOBR also has references to “convalescent care” and “PIP

days,” neither of which apply to Aventura’s claim.

9. The EOBR indicates a “procedure code” of 99283. The

UB-04 submitted by Aventura also used the code 99283. This code

is among five codes that are used by hospitals to bill emergency

department visits based on “level” of intensity rendered. These

codes are taken from the American Medical Association’s Current

Procedural Terminology (or CPT), a coding system developed for

physician billing, not for hospitals. Over the years, these CPT

codes were adopted by hospitals for billing emergency department

visits. Emergency department services are billed with CPT codes

99281 through 99285.

10. After receiving the payment and EOBR, Aventura timely

filed a Petition for Resolution of Reimbursement Dispute, with

attachments, to the Department. Aventura alleged in its

Petition that the correct reimbursement amount owed was

$7,408.10, leaving an underpayment of $420.89.

11. Qmedtrix, acting as Guarantee’s representative, then

filed Guarantee’s Response to Petition for Resolution of

Reimbursement Dispute and attachments with the Department.

12. Attached to the Response was a letter from Mr. von

Sydow dated November 9, 2009. The letter asserted that the

correct payment to the hospital (Aventura) should be determined

on an average of usual and customary charges for all providers

in a given geographic area, rather than the hospital’s usual and

customary charges. As authority, Mr. von Sydow cites the case

of One Beacon Insurance v. Agency for Health Care

Administration , 958 So. 2d 1127 (Fla. 1st DCA 2007). The letter

also requested that the Department “scrutinize the bill in

question in order to determine, first, whether the hospital in

fact charged its usual charge for the services provided and,

second, whether the billed charges are in line with the

customary charges of other facilities in the community.”

13. The letter further alleges that the hospital “upcoded”

the emergency room visit, billing using CPT code 99283,

asserting that the proper billing code should have been 99282.

The letter concludes that the amount paid, $398.22, for the

emergency department visit is closer to the “usual and

customary” charges that Qmedtrix asserts, on behalf of

Guarantee, is applicable to the claim.

14. On November 18, 2009, the Department issued its

Determination. The Determination states in pertinent part:

The 2006 HRM , Section 12.,A., vests specific

authority in the carrier to review the

hospital’s Charge Master to verify charges

on the itemized statement and to disallow

reimbursement for specifically itemized

services that do not appear to be medically

necessary. No documentation submitted

indicates the carrier elected to exercise

this option. Moreover, the carrier did not

allege that any service was deemed not

“medically necessary” or that the charges

present on the DWC-90 failed to match the

charges on the provider’s Charge Master.

Therefore, the OMS finds the charges billed

by the hospital are the hospital’s usual and

customary charges.

The 2006 HRM provides for reimbursement of

emergency room services at seventy-five

percent (75%) of the hospital’s usual and

customary charges. Whereas, the carrier

failed to substantiate is [sic] adjustments

and disallowances of reimbursement on the

EOBR and the hospital’s billed charges are

accepted as the hospital’s billed charges

are accepted as the hospital’s usual and

customary charges, the OMS determines

correct total reimbursement equals $7,408.10

($9,877.47 x 0.75).

15. The determination letter also informed Guarantee of

its right to an administrative hearing. Guarantee timely filed

a Request for Administrative Hearing, which gave rise to this

proceeding.

CODING FOR J.R.’S EMERGENCY SERVICES

16. As mentioned above, Aventura reported the emergency

department visit using CPT Code 99283. No one from the hospital

testified but Aventura’s expert, Allan W. March, M.D., reviewed

Aventura’s hospital record for J.R.

17. Dr. March is a graduate of Dartmouth College and Johns

Hopkins University Medical School. He has extensive experience

in, among other things, hospital physician practice and

utilization review. Dr. March describes utilization as the

oversight of medical care to affirm that it is appropriate,

cost-effective, and medically necessary. Dr. March has worked

as an emergency department physician and has personally treated

upwards of 5,000 workers’ compensation patients. Dr. March

testified on behalf of Intervenor and Respondent.

18. Dr. March described J.R. from the hospital record as

follows:

This is a 41-year-old male who was kicked in

the flank one week prior to his presentation

to the emergency department, while engaged

in a fight, and was seen immediately prior

to his appearance in the emergency

department by a workers’ compensation

physician, who referred the patient to the

emergency department noting a stat referral,

meaning that he wanted that patient

evaluated within the hour.

Dr. March reviewed Aventura’s hospital record for J.R. to

analyze whether Aventura appropriately used CPT code 99283.

19. Dr. March explained that Aventura’s selection of CPT

code 99283 for the UB-04 was, in all likelihood, due to a

particular reference in J.R.’s patient record. Specifically, in

that section of the record indicating “Permanent Medical Record

Copy” at the bottom of each page, page 6 reflects an entry made

on May 29, 2009, which was two days after the services were

rendered. The May 29, 2009, entry was made by the emergency

physician to assign a level for emergency physician services,

for physician services and not for facility services, it would

have been used by Aventura’s hospital coder in the absence of an

emergency department charge sheet adopting the widely used

guidelines from the American College of Emergency Physicians

(ACEP Guidelines).” Aventura used an alternate methodology of

determining the severity level of the patient, in which the

coder would have used the complexity of the medical evaluation

by the physician.

20. Under the ACEP guidelines, the CPT code level assigned

is always the highest level at which a minimum of one “possible

intervention” is found. In this case, Dr. March determined that

two CT scans were ordered by the physician and performed by the

hospital, which substantiates the use of a 99284 code under the

ACEP Guidelines. Thus, Dr. March determined that Aventura could

have justified the use of CPT code 99284, which is higher than

the 99283 CPT code assigned by Aventura, had the ACEP guidelines

been used.

21. Dr. March further explained that the separate charge

for the emergency visit is intended to compensate the hospital

for “evaluation and Management” costs not captured in other line

items. According to Mr. March, the separate charge does not

duplicate charges for specific procedures rendered, such as a CT

scan.

22. The claim submitted by Aventura was sent to Qmedtrix

for a bill review. Its data elements were first entered into

The software placed Aventura’s claim on hold for manual review.

The claim was then manually reviewed by Mr. von Sydow, Director

of National Dispute Resolution for Qmedtrix.

23. Although his educational background is in law,

Mr. von Sydow is a certified coder certified by the American

Health Information Management Association (AHIMA). Mr. von

Sydow determined in his bill review that Aventura should have

used code 99282 instead of 99283.

24. Mr. von Sydow supported his conclusion that CPT code

99282 is the appropriate code for the emergency department visit

by comparing the procedure codes and diagnosis codes reported by

the hospital with examples of appropriate billing for emergency

department services in the CPT code handbook. Mr. von Sydow

concluded that the hospital’s billing with CPT code 99283 was

not appropriate and that the hospital should have billed with

CPT code 99282. Mr. von Sydow also calculated that while the

hospital billed $722 with CPT code 99283, its usual and

customary charge for a visit billed with 99282 is $600.

25. Moreover, Mr. von Sydow referenced a study by American

Hospital Association (AHA) and AHIMA, which suggests that

hospitals should count the number and kind of interventions to

approximate the CPT factors, but that a hospital should not

include in this count interventions or procedures, such as CTs

or X-rays, which the hospital bills separately. He further

acknowledged that the federal Centers for Medicare and Medicaid

Services (CMS) allow hospitals to use their own methodology in

applying the CPT codes.

26. David Perlman, M.D., received his undergraduate degree

from Brown University and his medical degree from the University

of Oregon. He has considerable experience as an emergency room

physician. For the past six years, he has worked for Qmedtrix

initially doing utilization review and as its medical director

since 2005. Dr. Perlman testified on behalf of Guarantee.

27. Dr. Perlman is also familiar with the ACEP guidelines

referenced by Dr. March and the AHA/AHIMA study relied upon by

Mr. von Sydow. He is also familiar with the CPT code handbook.

Dr. Perlman suggested that the use of the ACEP guidelines could

result in reimbursement essentially already provided in a

separate line-item. He agrees with the methodology recommended

by the AMA/AHIMA study. That is, counting the number and kind

of interventions or procedures to approximate the CPT book’s

factors to consider in selecting the code billed for emergency

department services, but not including in this count

interventions or procedures, such as CTs or X-rays, which the

hospital bills separately.

28. In Dr. Perlman’s opinion, J.R.’s injuries supported

the assignment of CPT code 99283 as designated by Aventura.

Dr. Perlman agreed with Dr. March’s opinion that Aventura could

have billed at a higher level (99284), but not based on the

number and kind of interventions or procedures. Dr. Perlman

instead referenced examples in the ACEP guidelines.

29. Dr. Perlman acknowledged that hospitals are free to

use the ACEP guidelines and that many hospitals do so.

30. Both Drs. March and Perlman are of the opinion that

Aventura’s use of CPT code 99283 was appropriate, and further

agreed that Aventura could have assigned the higher code of

99284. Therefore, coding J.R.’s emergency department visit as

99283 by Aventura was appropriate.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2009).

32. This proceeding, like all other proceedings conducted

under Section 120.57(1), Florida Statutes, is de novo in nature.

See § 120.57(1)(k), Fla. Stat.

33. Generally, unless there is a statute which provides

otherwise, the party asserting the affirmative of an issue has

the burden of proof. See Department of Transportation v. J.W.C.

Co. , Inc., 396 So. 2d at 778 (Fla. 1st DCA 1981); Balino v.

Dept. of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). It was Aventura which petitioned the

Department for affirmative relief and agency action, i.e. , a

determination that the Petitioner improperly disallowed payment.

See § 440.13(7)(a). Accordingly, Aventura, as the health care

provider which is asserting entitlement to reimbursement for

medical services provided to J.R., has the burden of proving

that the charges for the services provided do not constitute

over-utilization.

34. The standard of proof is a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat.

35. This case involves a reimbursement dispute under

Section 440.13(7), Florida Statutes (2009). Section 440.13,

Florida Statutes, reads in pertinent part:

(6) UTILIZATION REVIEW--Carriers shall

review all bills, invoices, and other claims

for payment submitted by health care

providers in order to identify

overutilization and billing errors,

including compliance with practice

parameters and protocols of treatment . . .

If a carrier finds that overutilization of

medical services or a billing error has

occurred, or there is a violation of the

practice parameters and protocols of

treatment established in accordance with

this chapter, it must disallow or adjust

payment for such services or error without

order of a judge of compensation claims or

the department, if the carrier, in making

its determination, has complied with this

section and rules adopted by the agency.

(7) UTILIZATION AND REIMBURSEMENT DISPUTES--

(a) Any health care provider . . . who

elects to contest the disallowance or

adjustment of payment by a carrier under

subsection (6) must, within 30 days after

receipt of notice of disallowance or

adjustment of payment, petition the agency

to resolve the dispute. The petitioner must

serve a copy of the petition on the carrier

and on all affected parties by certified

mail. The petition must be accompanied by

all documents and records that support the

allegations contained in the petition.

Failure of a petitioner to submit such

documentation to the agency results in

dismissal of the petition.

(b) The carrier must submit to the

department within 10 days after receipt of

the petition all documentation

substantiating the carrier's disallowance or

adjustment. Failure of the carrier to

timely submit the requested documentation to

the agency within 10 days constitutes a

waiver of all objections to the petition.

(c) Within 60 days after receipt of all

documentation, the department must provide

to the petitioner, the carrier, and the

affected parties a written determination of

whether the carrier properly adjusted or

disallowed payment. The department must be

guided by standards and policies set forth

in this chapter, including all applicable

reimbursement schedules, practice

parameters, and protocols of treatment, in

rendering its determination.

(d) If the department finds an improper

disallowance or improper adjustment of

payment by an insurer, the insurer shall

reimburse the health care provider,

facility, insurer, or employer within 30

days, subject to the penalties provided in

this subsection.

(e) The department shall adopt rules to

carry out this subsection. . . .

* * *

(11) AUDITS.--

(c) The department has exclusive

jurisdiction to decide any matters

concerning reimbursement, to resolve any

overutilization dispute under subsection

(7). . . .

* * *

(12) CREATION OF THREE-MEMBER PANEL; GUIDES

OF MAXIMUM REIMBURSEMENT ALLOWANCES.--

(a) A three member panel is created. . .

[which] shall determine statewide schedules

of maximum reimbursement allowances for

medically necessary treatment, care, and

attendance by physicians, hospitals,. . .

All compensable charges for hospital

outpatient care shall be at 75 percent of

usual and customary charges , except as

otherwise provided by this subsection.. . .

(emphasis supplied)

36. Thus, subsection (6) requires carriers to review all

bills for payment submitted by health care providers for errors.

Subsection (7) sets forth the procedure for resolving disputes

concerning payments for services rendered to injured workers.

37. Pursuant to Subsection 440.13(7)(e), Florida Statutes,

the Department has adopted Florida Administrative Code Rule 69L-

7.501 which incorporates by reference the Reimbursement Manual

for Hospitals, 2006 Edition (the manual), which provides in

pertinent part:

Section X: Outpatient Reimbursement

A. Reimbursement Amount.

Except as otherwise provided in this

Section, hospital charges for services and

supplies provided on an outpatient basis

shall be reimbursed at seventy-five percent

(75%) of usual and customary charges for

medically necessary services and supplies,

and shall be subject to verification and

adjustment in accordance with Sections XI

and XII of this Manual. [2/]

38. At issue in this proceeding is whether reimbursement

to Aventura should be based upon the individual’s hospital’s

usual charge or should instead be based upon the usual and

customary charge of all hospitals within the same geographic

area. Relying primarily on One Beacon Insurance v. Agency for

Health Care Administration , supra , Petitioner argues that

reimbursement should be based upon the usual and customary

charge in the community. In its Petition for Administrative

Hearing, Guarantee contends that the Department “misinterpreted

and misapplied Rule 69L-7.501, F.A.C. . . . [Hospital Manual]

contrary to the provisions of Section 440.13(12), Fla. Stat.

(2009).”

39. The Department has consistently applied the 2006

Manual to refer to the individual hospital’s “usual and

customary charges.” ( See cases officially recognized referenced

in and attached to Aventura’s Unopposed Motion for taking

Official Recognition.)

40. Until determined otherwise in a Section 120.56,

Florida Statutes, rule challenge proceeding, Florida

Administrative Code Rule 69L-7.501 is presumptively valid. Any

determination that a duly promulgated rule is contrary to a

statute is beyond the authority of the undersigned and is within

the purview of an appellate court. See Clemons v. State Risk

Management Trust Fund , 870 So. 2d 881, 884 (Fla. 1st DCA 2004)

(Benton, J., concurring). Accord , Amerisure Mutual Insurance

Company v. Agency for Health Care Administration , DOAH Case

No. 07-1755 (Order relinquishing Jurisdiction and Closing File,

January 23, 2008) (Quattlebaum, A.L.J.); FFVA Mutual v. Agency

for Health Care Administration , DOAH Case. No. 07-5414 (Order,

March 26, 2008) (Wetherell, A.L.J.).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Department of Financial Services, Division of

Workers' Compensation, enter a Final Order requiring Petitioner

to remit payment to Aventura consistent with the Determination

Letter dated November 18, 2009, and Section 440.13(7)(c),

Florida Statutes.

DONE AND ENTERED this 17th day of June, 2010, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of June, 2010.

ENDNOTES

1/ As to Exhibits 8 and 9, Respondent/Intervenors’ relevancy

objections are sustained. The witness testified that he did not

rely on these documents to form his opinion. Regarding Exhibit

18, Respondent/Intervenor argue that Section 90.956 was not

complied with in that Petitioner did not comply with the

requirement of Section 90.956, Florida Statutes, in that the

originals or duplicates of the data from which the summary is

compiled was not made available; and that it is impractical and

may be impossible to make available the thousands of individual

hospital claims that underlie the summaries sought to be

admitted. Petitioner argues that it offered to make available

the “underlying data” in so far as the data is part of several

sources of data for which the amount paid is based. However,

what Guarantee cannot do is make available the actual data used

by AHD in its summaries. Allowing access to Qmedtrix’ data and

providing links to other data sources does not equate to

providing access to the underlying data used by AHD in compiling

the summaries sought to be introduced by Guarantee. No one from

AHD, the entity which compiled the data submitted by various

hospitals to the federal government, testified. No one from the

reporting hospitals testified. Mr. von Sydow’s testimony cannot

be used as a conduit for impermissible hearsay statements to be

admitted as evidence. Gerber v. Iyengar , 725 So. 2d 1181 (Fla.

3rd DCA 1998). Further, this data is uncorroborated and,

therefore, is not sufficient in itself to support a finding of

fact as contemplated by Section 120.57(1)(c), Florida Statutes.

Whether Mr. von Sydow can rely on these facts in forming

his opinion is another matter. Petitioner argues that even if

the data is inadmissible, Mr. von Sydow may rely on this data to

form his opinion, citing Section 90.704, Florida Statutes. Upon

review of the record, the undersigned finds that the data are of

a type reasonably relied upon by experts in the subject in

forming their opinions. Accordingly, Respondent/Intervenor’s

motion to strike Mr. Von Sydow’s testimony in this regard is

denied.

2/ The “verification and adjustment in accordance with Sections

XI and XII” of the Manual is not applicable in this case.

COPIES FURNISHED :

Cindy R. Galen, Esquire

Eraclides, Johns, Hall, Gelman

Johannssen & Goodman, LLP

2030 Bee Ridge Road

Sarasota, Florida 34239

Mari H. McCully, Esquire

Cynthia Jakeman, Esquire

Department of Financial Services

Division of Workers’ Compensation

200 East Gaines Street

Tallahassee, Florida 32399

Richard M. Ellis, Esquire

Rutledge, Ecenia & Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399

Benjamin Diamond, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.