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Massage Today
December, 2013, Vol. 13, Issue 12

2013 Heroes of the Profession

Defending Massage Therapy In a Florida Court of Law

By Kathryn Feather, Senior Associate Editor

For more than a year now, attorneys Luke Lirot and Adam Levine, massage therapist Vivian Madison-Mahoney and CEO of Advanced Diagnostic Group, Kevin Johnson, have been waging a legal battle against the state of Florida on behalf of the massage profession.

The fight to stop the harmful affects of HB119, which prohibits the state's massage therapists and acupuncturists from billing personal injury insurance, continues today as the appeals process winds its way through the Florida court system. With no end yet in sight, these four have vowed to continue the fight until justice is served. And that's why they are the 2013 Massage Today Heroes of the Profession.

Background

The Florida PIP Defense Fund, a group assembled specifically to fight this bill, learned in the waning days of 2012 that the federal court canceled its hearing scheduled for December 27, 2012, and issued an order denying its motion for a preliminary injunction.

Attorney's Luke Lirot and Adam Levine then filed a motion to reconsider and they are also filed a response to defendant Kevin McCarty's request for dismissal on the day the case was due to be heard in Federal Court.

lady justice - Copyright – Stock Photo / Register Mark Lirot and Levine explained that, "we believed that these health care provider's rights, which are protected to due process and equal protection, were violated when Florida determined that in order to prevent fraud, all licensed massage therapists and acupuncturists should no longer be permitted to provide care to those injured as a result of a motor vehicle collision."

In April, Circuit Judge Terry P. Lewis issued a partial injunction against the Florida Personal Injury Protection law, putting a halt - at least temporarily - to the portion of the law that requires a finding of an emergency medical condition as a prerequisite for payment of PIP benefits and that prohibits payment for services provided by massage therapists, acupuncturists and chiropractors.

The state's Office of Insurance Regulation quickly filed an appeal, which meant claims could not be filed and payments could not be received on PIP cases until the next ruling was rendered.

Fast forward to September 17th, where Adam Levine, appearing with Luke Lirot, argued before a three judge panel to uphold the ruling by Judge Terry Lewis vacating the automatic stay in his previous ruling. Levine presented the argument that "the Act is unfair because it singles out licensed massage therapists and acupuncture physicians to deny compensation for providing care and because they limit the care a chiropractor may provide. The Act is unjust, because it requires all citizens to purchase $10,000 in coverage, but only requires the insurer to provide $2,500 in benefits. Finally, the Act is unreasonable because the limitations and restrictions imposed by the Act have nothing to do with fraud prevention or good medical care."

Fighting the Good Fight

So, why did these four individuals come forward to challenge this law? "I am a first hand witness as to the phenomenal benefits of our valued hands on work to improve or correct soft tissue damage. I've been accepting a variety of insurance cases since my first week of being licensed in 1984, treating hundreds of injured patients referred by physicians," said Madison-Mahoney. "When it became very obvious that our leaders were not standing up for us, who could not see the potential damage and did not hear the cries of those who needed our help, I searched for a Constitutional, First Amendment Rights Attorney."

"I have always viewed myself as a staunch defender of 'the little guy' and I have fought governmental abuse in every aspect of my practice for over 25 years," said attorney Luke Lirot. "The 2012 PIP Act looked like a complete deprivation of the rights of medical professionals and consumers for the benefit of insurance companies, driven by political expediency. This was a constitutional case right down my alley."

"In this case, getting involved was an easy decision because this case is one excellent example of how the government has lost track of its most basic mission - to protect the health, safety, and wellbeing of its citizens," said attorney Adam Levine. "Here, the government appears only interested in supporting private business interests to the detriment of its citizens."

Where the Case Stands

According to Lirot, "on October 23rd, we received the decision from the First District Court of Appeals reversing the lower courts order for Temporary Injunction. This is something that we expected because, when the lawsuit was filed, it was predicated primarily on the healthcare providers 'right to work' theories. The 'access to the courts' argument was based on a facial constitutional challenge, which, at the point in time when the case was filed, since the legislation was not yet in effect, we had no one that had been denied coverage. The trial court based its injunction order on this important issue, but did not remark on any of the other primary arguments, thus the appeal went up on this sole issue."

"For the last year we have had our share of wins and losses, but the overriding fact is that our legal challenge is based on constitutional issues that affect providers and consumers alike. In its decision, the 1st DCA reversed the temporary injunction because they concluded that the Plaintiff healthcare providers lacked sufficient standing for an injunction on the sole issue of access to the courts. They said nothing about the merits of the other important issues raised, and, from an ideological standpoint, they actually recognized that the arguments raised were entirely correct, it was just the fact that the healthcare providers had not themselves been the victims of not having had their own 'access to the courts' rights limited. The decision essentially held that an injured person adversely affected by the 2012 PIP Act could bring their own constitutional challenge based on a violation of the constitutional right of access to the courts. We intend to file a Motion for Rehearing with the First District Court of Appeals."

A Team of Heroes

"We were/are simply doing what we think is right. The real heroes are those that stood up, like Vivian Mahoney and Kevin Johnson, and said - wait - this makes no sense. Those heroes are the ones that work tirelessly trying to raise support for our work. Unfortunately, we are facing both the government and the largest, most heavily funded lobby in Tallahassee that the government prefers to support over its citizens," said Levine.

"I don't feel I am any kind of a hero, I could just see the big picture, the handwriting on the wall if you will. I want to add a very special thank you to each and every donor, those who shared our information and who believed in us and our fight. It doesn't cease to amaze me how many massage therapists and chiropractors from out of the state of Florida (from 42 states) donated as well," said Madison-Mahoney.

 

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