UNITED AUTOMOBILE INSURANCE COMPANY v. LAUDERHILL MEDICAL CENTER, LLC a/a/o ROBERT WHITE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

UNITED AUTOMOBILE INSURANCE COMPANY,
Appellant,

v.

LAUDERHILL MEDICAL CENTER LLC,
a/a/o ROBERT WHITE,
Appellee.

No. 4D21-2308

[November 9, 2022]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Olga Gonzalez Levine, Judge; L.T. Case No. COWE-20-
22728.

Michael J. Neimand, Miami, for appellant.

John C. Daly, Christina M. Kalin, and Matthew C. Barber of Daly &
Barber, P.A., Plantation, for appellee.

LEVINE, J.

Lauderhill Medical Center, the medical provider, provided “vibe
therapy” to an insured party involved in a motor vehicle accident. The
medical provider billed the therapy under the non-specific CPT code of
97039, which does not have a set reimbursement price attached to it. The
insurer, United Auto Insurance Company, paid the claim to the medical
provider as an assignee of the insured, in accord with the workers’
compensation fee schedule. The medical provider filed a complaint against
the insurer for underpayment of PIP benefits, claiming that reimbursement
should have been made pursuant to the higher-paid Medicare fee
schedule.

Ultimately, the trial court entered final summary judgment for the
medical provider. On appeal, the insurer argues that the trial court erred
in determining that reimbursement under the workers’ compensation fee
schedule was improper. Based on the plain language of the applicable
statute, we agree with the trial court and find that the medical service
provided by the provider was reimbursable under Medicare Part B. As
such, we affirm.

In December 2019, the insured was involved in a motor vehicle
accident. The insured’s injuries were treated, in part, with “vibe therapy.” 1
The insurer paid the medical provider 80% of the maximum charges
permitted under the workers’ compensation schedule pursuant to section
627.736(5)(a)(1)(f), Florida Statutes (2019). The insurer claimed that the
service was not reimbursable under Medicare Part B, and therefore, the
allowable reimbursement was limited to 80% of the maximum
reimbursable allowance under workers’ compensation.

The medical provider argued that CPT code 97039 is an allowable code
under Medicare Part B, but since that code has no set price, the claim
should be paid at a reasonable amount up to 80% of 200% of the allowable
amount under the Medicare fee schedule. 2 The trial court entered final
summary judgment in favor of the medical provider, relying on Allstate Fire
& Casualty Insurance Co. v. Perez ex rel. Jeffrey Tedder, M.D., P.A., 111 So.
3d 960 (Fla. 2d DCA 2013). The trial court ordered that the insurer
reimburse the medical provider pursuant to the Medicare Part B fee
schedule for the claim. This appeal follows.

We interpret the text and provisions of the PIP statute de novo. MRI
Assocs. of Tampa, Inc. v. State Farm Mut. Auto. Ins. Co., 334 So. 3d 577,
583 (Fla. 2021). Summary judgment is also subject to the de novo
standard of review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760
So. 2d 126, 130 (Fla. 2000).

Section 627.736, the pertinent statute for determining the parameters
of reimbursement of medical services under PIP, provides as follows:

(5) Charges for treatment of injured persons.—

(a) A physician, hospital, clinic, or other person or institution
lawfully rendering treatment to an injured person for a bodily

1 The expert witness affidavit defined vibe therapy as providing a massage using
a “power vibe machine.” He described the machine as “a patented sonic vibration
technology whole body vibration which uses vibration for maximum muscle
toning and lymph drainage.”
2 In support that CPT code 97039 does not have a set price under Medicare Part

B, the medical provider relied on multiple authorities, including CMS.gov
physician fee schedule search results, First Coast Service Options Local Coverage
Determination, AAPC Coder excerpts, 70 Fed. Reg. 70116-01 (Nov. 21, 2005), the
National Correct Coding Initiative Policy Manual, and Florida Administrative
Code Rule 69B-220.201.

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 injury covered by personal injury protection insurance may
charge the insurer and injured party only a reasonable
amount pursuant to this section for the services and supplies
rendered . . . .

1. The insurer may limit reimbursement to 80 percent of the
following schedule of maximum charges:

....

f. For all other medical services, supplies, and care, 200
percent of the allowable amount under:

(I) The participating physicians fee schedule of Medicare Part
B, except as provided in sub-sub-subparagraphs (II) and (III).

(II) Medicare Part B, in the case of services, supplies, and care
provided by ambulatory surgical centers and clinical
laboratories.

(III) The Durable Medical Equipment Prosthetics/Orthotics
and Supplies fee schedule of Medicare Part B, in the case of
durable medical equipment.

However, if such services, supplies, or care is not reimbursable
under Medicare Part B, as provided in this sub-subparagraph,
the insurer may limit reimbursement to 80 percent of the
maximum reimbursable allowance under workers’
compensation, as determined under s. 440.13 and rules
adopted thereunder which are in effect at the time such
services, supplies, or care is provided. Services, supplies, or
care that is not reimbursable under Medicare or workers’
compensation is not required to be reimbursed by the insurer.

§ 627.736(5), Fla. Stat. (2019) (emphasis added).

When interpreting the PIP statute, like all other statutory provisions, a
court is bound by the plain language meaning of the text and its
provisions. MRI Assoc., 334 So. 3d at 583. A court is to “presume that a
legislature says in a statute what it means and means in a statute what it
says there.” Id. (citation omitted). We are required to give effect “to every
word, phrase, sentence, and part of the statute if possible, and words in a
statute should not be construed as mere surplusage.” Am. Home Assur.
Co. v. Plaza Materials Corp., 908 So. 2d 360, 366 (Fla. 2005) (citation

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omitted).

Finally, “a basic rule of statutory construction provides that the
Legislature does not intend to enact useless provisions, and courts should
avoid readings that would render part of a statute meaningless.” Id.
(citation omitted). “[R]elated statutory provisions must be read together to
achieve a consistent whole, and that ‘[w]here possible, courts must give
full effect to all statutory provisions and construe related statutory
provisions in harmony with one another.’” Woodham v. Blue Cross & Blue
Shield of Fla., Inc., 829 So. 2d 891, 898 (Fla. 2002) (citations omitted).

A key provision of section 627.736(5) is that “if such services, supplies,
or care is not reimbursable under Medicare Part B, as provided in this sub-
subparagraph, the insurer may limit reimbursement to 80 percent of the
maximum reimbursable allowance under workers’ compensation, as
determined under s. 440.13. . . . ” (emphasis added).

Thus, the workers’ compensation schedule applies only if the services
provided are not reimbursable under Medicare Part B. If a CPT code, such
as 97039, has no set price but is still reimbursable under the Medicare fee
schedule, then the PIP statute would allow a reasonable amount up to 80%
of 200% of the allowable amount, instead of the workers’ compensation
schedule. 3

The trial court, in granting final summary judgment, relied on Perez.
We also find that case to be persuasive. In Perez, a doctor provided
medical services billed under a previously recognized CPT billing code,
which was no longer a recognized code on the date of the provision of
services. 111 So. 3d at 961. However, the medical services provided were
still covered under Medicare Part B. Id. at 962-63. In Perez, like the
present case, the insurer paid the medical provider under the workers’

3 Medicare specifically addresses situations where the service is covered, but
there is no delineated amount in a fee schedule: “We recognize that there may be
services or procedures performed that have no specific CPT codes assigned. In
these situations, it is appropriate to use one of the CPT codes designated for
reporting unlisted procedures.” Medicare Program; Revisions to Payment Policies
Under the Physician Fee Schedule for Calendar Year 2006 and Certain Provisions
Related to the Competitive Acquisition Program of Outpatient Drugs and Biologicals
Under Part B, 70 FR 70116-01 (Nov. 21, 2005). See also § 627.736(5)(a)(3), Fla.
Stat. (2019) (providing that an insurer is not prohibited “from using the Medicare
coding policies and payment methodologies of the federal Centers for Medicare
and Medicaid Services, including applicable modifiers, to determine the
appropriate amount of reimbursement for medical services, supplies, or care if
the coding policy or payment methodology does not constitute a utilization limit”).

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compensation fee schedule instead of under the fee schedule for Medicare
Part B. Id. at 961.

The court in Perez determined that the insurer erred in using the
workers’ compensation schedule, and not the Medicare Part B schedule.
Id. at 963. The court recognized that although the specific CPT code was
not recognized for payment, the services represented in the code were still
covered under Medicare Part B, if medically reasonable and necessary. Id.
at 662-63. The Second District reasoned:

The language of section 627.736(5)(a)(2)(f) [now
627.736(5)(a)(1)(f)] is clear. The statute focuses on whether
services, supplies, or care is “reimbursable under Medicare Part
B”; it does not require that CPT codes be recognized by
Medicare for reimbursement purposes. While CPT codes help
to clearly identify services that may be reimbursable under the
PIP statute, a CPT code alone does not dictate whether a service
is reimbursable under the statute. As the county court ruled, it
is the nature of the medical service that controls. This plain
reading of the statute is consistent with the well-established
rule in Florida that the PIP statute should be construed
liberally in favor of the insured.

Id. at 963 (citations omitted) (emphasis added). The Second District
further stated:

[W]e understand the confusion that is likely caused when a
provider uses a CPT code that, while still valid in the medical
community, is no longer recognized by the current Medicare
Part B schedule but the services are considered covered and
therefore reimbursable under Medicare Part B. As in this
case, the insurer would have to look beyond the CPT code to
determine whether the services represented in the code are
reimbursable under Medicare Part B. We understand that
this complicates the reimbursement process under the PIP
statute. Nonetheless, we are bound by the plain language of
section 627.736(5)(a)(2)(f), which does not require a CPT code to
be recognized by Medicare Part B if the services are otherwise
covered and reimbursable under Medicare Part B.

Id. at 964 (emphasis added).

The insurer attempts to distinguish Perez from the present case,
inasmuch as the statutory version applicable in the present case differs

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from the version utilized in the Perez case.

In the version of the statute applicable in the present case, the
additional language amounted to the following: “as provided in this sub-
subparagraph.” The additional verbiage does not change our reliance on
Perez. The amended version of the statute does not change the focus on
whether the service is reimbursable under Medicare Part B. Nothing in
the statutory version, effective at the time of the Perez case or the present
case, added a requirement that CPT codes have a set value under a fee
schedule under Medicare to be reimbursed. Had the legislature intended
that those services have a corresponding and specific set reimbursement
rate under Medicare or default to the workers’ compensation billing, it
would have said so. This court is not empowered to impose an additional
statutory requirement for reimbursement not written by the legislature.
Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999) (“We are not at liberty to add
words to statutes that were not placed there by the Legislature.”).

Finally, if we were to accept the insurer’s argument and require a
specific CPT code and reimbursement rate and default to the workers’
compensation schedule in its absence under Medicare Part B, that
interpretation would render the “80% of the 200%” of the allowable amount
under Medicare mere surplusage. See Am. Home Assur. Co., 908 So. 2d
at 366 (recognizing that a court is required to give effect “to every word,
phrase, sentence, and part of the statute if possible, and words in a statute
should not be construed as mere surplusage”) (citation omitted).

In summary, we find that the trial court correctly determined that the
proper payment under section 627.736(5) was pursuant to Medicare Part
B. We affirm.

Affirmed.

CONNER and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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