46 I The American Chiropractor I NOVEMBER 2013 www.theamericanchiropractor.com

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Case #04-1149RX:Beating PIP Laws In Florida and BeyondBy David Marcarian, MA and Nancy Miggins, DC

One trait that has always made chiropractors unique is their strong desire to do tireless battle with the status quo while prevailing against all odds (such as Wilk vs. AMA). Is the

situation in Florida an indication that we’ve lost our edge? While attending classes on Florida’s personal injury protection

(PIP) law changes, I was amazed to see the majority of doctors in such despair with little interest in fighting back. It shocked me that these doctors were making conclusions about this law’s impact on their practices without actually reading the language of the law itself.

I read the bill and saw some loopholes in it. To confirm my suspi-cions, I hired several seasoned attorneys to review the changes. Based upon their analyses, it appears that the loopholes appear real, and as usual, there is opportunity in crisis.

In 2004, the State of Florida, applying Rule 64B-3.004, invalidated surface electromyography (sEMG) as clinically valuable in soft tissue injury evaluation, removing it as an approved tool for reimbursement under PIP. Dr. Richard Merritt, a true chiropractic warrior, took on the State of Florida by challenging this rule change. When insurers realized how much they had to lose, they pulled out all the stops and joined the State of Florida. They hired a slew of expert witnesses making a “win” for Dr. Merritt nearly impossible. When Dr. Merritt reached out to the chiropractic profession for help, I gladly joined him in this truly “David vs. Goliath” battle. If the insurers won, sEMG would be dead in the US. If they lost, we would have established it as a tool that can evaluate injury, and more importantly, establish “diminished function” (listen up).

Just as in the Wilk vs. AMA case, we prevailed, receiving a powerful 47-page decision, which has helped lead to reimbursement for dynamic surface EMG under its own CPT code in every state in the country.

How does this case help beat the Florida PIP law? In my opinion, the key to exceeding the $2,500 limit is to prove an emergency medical condition (EMC). This is defined as “a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, that absence of immediate medical attention could reason-ably be expected to result in any of the following:…“Serious dysfunc-tion of any bodily organ or part.” The key word is “dysfunction.” Can soft tissue injury from an auto accident lead to back pain or whiplash symptoms? Can these symptoms lead to long-term limitations and “dysfunction”? By definition, an EMC can be established if one can prove that soft tissue injury is “real” and the patient is not a symptom magnifier. I hired several attorneys to review my viewpoint, and each agreed that the approach below was determined to be a solution for overcoming the imposed PIP limitations.

1. Perform the dynamic sEMG test on every new personal in-jury patient you get. The test can take less than five minutes

to perform, and is reimbursed by PIP in Florida under CPT 96002 and 96004.

2. Evaluate the findings to determine if the claim of injury can be objectively supported.

3. If so, send the findings and a report (which can take as little as five minutes), along with a synopsis of Merritt vs. DOH to any licensed practitioner qualified to determine if an EMC exists under current law.

4. Whether familiar with the exam or not, the legal precedence set by Merritt vs. DOH would lead any healthcare practitioner to consider the findings of your exam in his or her determina-tion of EMC.

The hasty enactment of this bill has resulted in an unclear defini-tion of the EMC. This can be the silver lining in the cloud of despair because it gives you an opportunity to establish an EMC with a simple physiological exam. The bottom line is that in this very evidence-based world, objective data like dynamic sEMG can and should be used to bolster your patients’ claims and protect their rights to proper treat-ment—the type of effective, drug-free treatment you have to offer.

Every battle involves weapons, and dynamic sEMG may be the tool needed to win this war. With its legitimacy established in the

48 I The American Chiropractor I NOVEMBER 2013 www.theamericanchiropractor.com

courts, acceptance by those who can determine EMC is imminent. Not only do you benefit and dominate the arena you know best, but you also will garner the respect of patients who receive the benefits they need and deserve.

If you believe you’re immune to this issue just because you practice outside of Florida, think again. Personal injury (PI) attorneys across the country are confirming the trend that insurers are choosing litigation over settlement. Every chiropractor who treats personal injury patients needs to be prepared for court. You can no longer get by with sketchy documenta-tion, no objective necessity for care, and minimal progress evaluations, and rely on the case settling out of court.

Most chiropractors are ill prepared for the courtroom. The deck is stacked against you, as it is nearly impossible to prevail against an MD expert witness without objective data that substantiates injury and need for treatment. The converse is definitively true: those well prepared with objective, graphical data will usually win over the jury, making you sought after by attorneys and patients alike.

According to Darcy Fox, DC, DACO, CEDIR, “In the past, PI attorneys were more likely refer to a less qualified MD over me. Now that I’ve integrated objective tools for injury evaluation like dynamic sEMG, attorneys are acknowledging my skills as a chiropractor and are referring patients to my practice. Having seen this technology’s effect on the jury, I can’t imagine entering the courtroom without it.”

It is now time to take action and win back the courtroom. Integrate objective physiological data, and the courtroom is yours.

Technology can be your best friend or worst enemy. By finding the best product and support for your needs, you will have a great partner in building your practice. Follow some simple guidelines, and you will enjoy all the advantages of technology without the stress.

References:

1. A Meta-Analytic Review of Surface Electromyography Among Persons With Low Back Pain and Normal, Healthy Controls. Geisser, Ranavaya, Haig, Roth, Zucker, Ambroz and Caruso published in the Journal of Pain, November 2005 p. 711-726.

Dr. Nancy Miggins has over 25 year’s clinical experience as a chiropractor. She excelled in the areas of procedures, ethical business practices and manage-ment. After spearheading the development of a integrative health and fitness center, she spent 6 years as director of this clinic. Although her main focus

was in family practice, she also has aided Olympic Athletes and professional cyclists with optimizing sports performance through chiropractic. She is currently the Director of Clinical Applications & Product Development for Precision Biometrics, Inc. Contact at : Info@myovision.com or visit www.myovision.com or call 800-969-6961

David Marcarian, MA, founder of Precision Biometrics, and inventor of the revolutionary MyoVision 3G Wirefree PhysioMonitoring™ System. A former NASA researcher, Marcarian was awarded a $450,000.00 NIH grant to develop the MyoVision. As an expert witness, Marcarian was credited one of the largest PI awards in US history, and established the validity of sEMG in a major State

Superior Court Decision. Recently the AMA selected his 3G Wirefree System as the “tool of choice” as presented in the medical text “The Practical Guide to Range of Motion Assess-ment”. Contact at : Info@myovision.com or visit www.myovision.com or call 800-969-6961

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By definition, an EMC can be established if one can prove that soft tissue injury is “real” and the patient is not a symptom magnifier.

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