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Court Denied Plaintiff's Motion for Summary Judgment Based on CPT 97039 Due to Change in Law

Michael S. Walsh | May 22, 2020

Michael S. Walsh, of our Ft. Lauderdale office, successfully convinced Judge Lee to deny Plaintiff’s motion for summary judgment based on CPT 97039. This case involved the following issue (for which there was no controlling precedent): whether CPT 97039 was reimbursable under the Medicare Part B fee schedule and whether the insurer was allowed to default to the workers’ compensation fee schedule pursuant to Florida Statute 627.736 (5)(a)1.f. Relying heavily on the Second DCA decision in Allstate v. Jorge Perez, Plaintiff argued that CPT 97039 was reimbursable under Medicare Part B and that the insurer was not allowed to pay at the workers compensation fee schedule. Michael argued that Plaintiff was not reading the statute as a whole and urged the Court to concentrate on the relevant wording of Florida Statute 627.736 (5)(a) 1.f. (2015), which states: “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, Florida Statutes.” Michael argued that Plaintiff’s reliance on the Perez case was misplaced because that case involved the 2009 version of the pertinent statute. Michael successfully argued that the addition of the language in the 2015 statute stating “as provided in this sub-subparagraph” was limiting language, and that under the new statute, it was no longer enough for a Plaintiff to prove a code was payable under the general sphere of “Medicare Part B.” Michael argued that the legislature was now referring only to those parts of Medicare Part B referred to in the “sub-subparagraph.” The court agreed with Michael’s interpretation of the statutory change as well as his distinguishing of the Perez case, which relied on the old version of the statute. It is anticipated that many judges in Broward County and Miami-Dade County will follow this significant ruling.

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