UNITED AUTOMOBILE INSURANCE COMPANY v. CHIRONEX ENTERPRISES, INC. a/a/o EMILY ECHEGARAY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
UNITED AUTOMOBILE INSURANCE COMPANY,
Appellant,
v.
CHIRONEX ENTERPRISES, INC., a/a/o EMILY ECHEGARAY,
Appellee.
No. 4D21-2307
[November 30, 2022]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; John Hurley, Judge; L.T. Case No. CONO20-015892.
Sean M. Sweeney, Miami, for appellant.
Chad A. Barr of Chad Barr Law, Altamonte Springs, for appellee.
LEVINE, J.
United Automobile Insurance Company appeals a final order requiring
it to reimburse Chironex Enterprises, Inc., for low-level laser therapy
which Chironex provided to an insured party following an automobile
accident. United Auto originally declined reimbursement because the CPT
code billed by Chironex for the therapy, S8948, is not specifically
recognized by either the Medicare Part B or workers’ compensation fee
schedules. Because we have previously held that it is the nature of the
service that controls and not the billed CPT code, we affirm the trial court’s
order and find that Chironex was entitled to reimbursement for the
therapy provided.
Chironex sued as an assignee for unpaid PIP benefits, claiming that
United Auto had wrongfully denied its claim for reimbursement for low-
level laser therapy provided to the insured. 1 Chironex billed United Auto
using the specific CPT code for low-level laser therapy, S8948. CPT code
S8948 is recognized by private payers for low-level laser therapy, but not
1 According to Chironex, the therapy involved applying a laser to the insured’s
lumbar region for 15 minutes during each session.
under the Medicare Part B or workers’ compensation fee schedules.
United Auto responded that no further payment was due to Chironex.
Chironex moved for summary disposition, arguing that the low-level
laser therapy it provided was compensable instead under the more general
CPT code, 97039, which is recognized under both the Medicare and
workers’ compensation fee schedules. Chironex argued that pursuant to
Allstate Fire & Casualty Insurance Co. v. Perez ex rel. Jeffrey Tedder, M.D.,
P.A., 111 So. 3d 960 (Fla. 2d DCA 2013), whether a medical provider is
entitled to reimbursement under section 627.736 focuses on whether the
service itself is reimbursable, not the CPT code utilized. Chironex argued
that United Auto was required to reimburse according to the less specific
code of 97039, even though Chironex initially billed under S8948, because
the service itself was reimbursable.
Chironex filed multiple documents in support of its motion, including
the definition of both CPT codes S8948 and 97039. The CPT code initially
utilized by Chironex, S8948, is defined by the Healthcare Common
Procedure Coding System as “[a]pplication of a modality (requiring
constant provider attendance) to one or more areas; low-level laser; each
15 minutes.” The CPT code under which Chironex subsequently argued it
was due reimbursement, 97039, is treatment with an “[u]nlisted modality”
as defined by the American Academy of Professional Coders. 2 CPT code
97039 includes “constant attendance” modalities, such as the laser
therapy provided by Chironex. Other documents filed by Chironex also
recognized low-level laser therapy as reimbursable under CPT code 97039.
United Auto did not file a response to Chironex’s motion for summary
disposition. It filed only the affidavit of a claims supervisor, stating that
neither S8948 nor laser therapy was “a medical service” reimbursable
under Medicare Part B or workers’ compensation. The affidavit summarily
concluded that Chironex had been properly reimbursed.
The trial court granted Chironex’s motion for summary disposition,
finding that pursuant to section 627.736(5) and Perez, the focus is on
whether the services are reimbursable under the Medicare Part B or
workers’ compensation fee schedules, not on whether the particular CPT
code is reimbursable. The trial court further determined that Chironex
was entitled to reimbursement under the workers’ compensation fee
2 The AAPC defines a modality as “[a]ny physical agent applied to produce
therapeutic changes to biologic tissues; includes but not limited to thermal,
acoustic, light, mechanical, or electric energy.”
2
schedule 3 and that the services were reasonable, related, and medically
necessary. The trial court ordered United Auto to pay Chironex $120 in
PIP benefits, plus statutory interest of $6.54. This appeal follows.
United Auto argues that “S8948 low level laser therapy” is not
reimbursable under the Medicare Part B or workers’ compensation fee
schedules, and as such, Chironex is not entitled to reimbursement under
section 627.736(5)(a)(1)(f).
We review the entry of summary judgment de novo. Orlando v. FEI
Hollywood, Inc., 898 So. 2d 167, 168 (Fla. 4th DCA 2005). We also review
issues of statutory interpretation de novo. B.Y. v. Dep’t of Children &
Families, 887 So. 2d 1253, 1255 (Fla. 2004).
Section 627.736 governs reimbursement of PIP benefits and 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
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.
3 Chironex does not contest the rate of reimbursement on appeal or whether the
reimbursement rate should be under workers’ compensation or Medicare Part B
fee schedule.
3
(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. (2020) (emphasis added).
“As with the interpretation of any statute, the starting point of analysis
is the actual language of the statute.” Brown v. City of Vero Beach, 64 So.
3d 172, 174 (Fla. 4th DCA 2011). When a statute is unambiguous, this
court generally need not resort to other rules of statutory construction.
City of Miami Beach v. Galbut, 626 So. 2d 192, 193 (Fla. 1993) . However,
the law of statutory interpretation does not “require[] interpreters to make
a threshold determination of whether a term has a ‘plain’ or ‘clear’ meaning
in isolation, without considering the statutory context and without the aid
of whatever canons might shed light on the interpretive issues in dispute.”
Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022).
Under the plain language of the statute, as previously interpreted by
this court, it is the nature of the medical service that controls, not the
billed CPT code. United Auto. Ins. Co. v. Lauderhill Med. Ctr. LLC, No.
4D21-2308 (Fla. 4th DCA Nov. 9, 2022); United Auto. Ins. Co. v. Lauderhill
Med. Ctr. LLC, No. 4D21-3336 (Fla. 4th DCA Nov. 9, 2022); see also Perez,
111 So. 3d 960. Thus, contrary to United Auto’s contention, it is
ultimately irrelevant whether S8948 is recognized under the fee schedules.
In Lauderhill Medical, No. 4D21-2308, the insurer reimbursed the
medical provider according to the workers’ compensation fee schedule as
opposed to the higher paying Medicare Part B fee schedule. Id., slip op. at
1. We affirmed the trial court’s determination that the insurer was
required to reimburse according to the Medicare Part B fee schedule
because the service itself was reimbursable even though the billed CPT
code was not. Id., slip op. at 1-2. We explained:
4
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., slip op. at 5 (quoting Perez, 111 So. 3d at 963) (emphasis omitted).
In this case, the plain language of the relevant statutory provision, that
“[s]ervices, supplies, or care that is not reimbursable under Medicare or
workers’ compensation is not required to be reimbursed by the insurer,”
places the emphasis for reimbursement on the service provided. Focusing
solely on the CPT code would be contrary to the dictates of the statute,
where the relevant subsection does not even reference CPT codes. Just
like Lauderhill Medical, “we are bound by the plain language of section
627.736(5)(a)([1])(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. (quoting Perez, 111 So. 3d at 964) (emphasis
omitted). We find that the focus of the last portion of subsection (5)(a)(1)(f),
allowing an insurer to avoid reimbursement if the service is not covered
under Medicare Part B and workers’ compensation, is also on the service
provided.
The service provided by Chironex, low-level laser therapy, is a covered
service under the appropriate fee schedules. Chironex provided evidence
that treatment with unlisted modalities is a covered service under the fee
schedules. Laser therapy would be an unlisted modality, which is “[a]ny
physical agent applied to produce therapeutic changes to biologic tissues;
includes but not limited to thermal, acoustic, light, mechanical, or electric
energy.” Thus, because this therapy is a covered service, it is required to
be reimbursed by the insurer.
Even though it is the service that controls reimbursement, and not the
billed CPT code, the fact that the service provided is reimbursable under a
more general code is further evidence that United Auto is required to
reimburse Chironex for the low-level laser therapy. While S8948 is
recognized only by commercial payors, 97039 is a more general CPT code
5
which also encompasses the therapy provided by Chironex. Documents
filed by Chironex recommended that providers bill for low-level laser
therapy under the covered CPT code 97039. The doctor who treated the
insured also stated in a sworn affidavit that the therapy provided under
“CPT Code S8948 for the low level laser therapy rendered . . . is a service
that is also reimbursable under CPT Code 97039 which is the
corresponding code for low level therapy treatment.” The only evidence
provided by United Auto in opposition of Chironex’s motion for summary
disposition was an affidavit of one of United Auto’s claim adjusters. The
affidavit stated that CPT code S8948 was not recognized or reimbursable
under Medicare Part B or the workers’ compensation fee schedule. Again,
as the service itself is the controlling factor and not the CPT code, the
sworn affidavit did not sufficiently oppose Chironex’s motion. Low-level
laser therapy is a covered service for which payment by the insurer was
required.
Notedly, United Auto does not dispute that 97039 is reimbursable
pursuant to either the Medicare Part B or the workers’ compensation fee
schedules, or that low-level laser therapy is reimbursable under 97039.
In support of its motion for summary disposition, Chironex provided
evidence that medical providers will bill insurers for low-level laser therapy
under the more general, reimbursable CPT code 97039. United Auto
argues that section 627.736 does not require it to convert a specific, non-
billable CPT code to a general, reimbursable CPT code, but Perez
contemplated that exact situation. Perez held that insurers “would have
to look beyond the CPT code to determine whether the services represented
in the code are reimbursable.” 111 So. 3d at 964. Thus, contrary to United
Auto’s position, the inquiry of it and similarly situated insurers does not
end at the billed CPT code. Rather, the insurers must contemplate
whether the service is covered when determining if there is coverage.
In summary, we find that the trial court correctly determined that the
nature of the service controls and United Auto is required to reimburse
Chironex for the low-level laser therapy, a covered service. 4
Affirmed.
CIKLIN and KUNTZ, JJ., concur.
4 United Auto also attempts to distinguish Perez based on a statutory
amendment. Because this argument was disposed of and discussed in Lauderhill
Medical Center LLC, No. 21-2308, we affirm without further comment.
6
* * *
Not final until disposition of timely filed motion for rehearing.
7