11 Fla. L. Weekly Supp. 6b
Insurance — Personal injury protection — Lost wages — Where insured’s treating physician and insurer’s medical expert gave diametrically opposed medical opinions as to whether insured’s injuries prevented her from working, error to enter summary judgment on issue of liability for lost wages — Statute does not mandate that insurer’s medical expert be same speciality as insured’s treating physician where issue is lost wages rather than payment for medical treatment — Appeals — Presumption of correctness can be disturbed in absence of transcript where record paints complete picture of error below
UNITED AUTOMOBILE INSURANCE CO., Appellant, v. ALEXANDRIA CLAYTON, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-097 AP. L.T. Case No. 02-4051 CC 25. October 28, 2003. On appeal from the County Court for Miami-Dade County, Teretha L. Thomas, Judge. Counsel: Mark A. Gatica, Office of the General Counsel, United Automobile Insurance Company, Miami, for Appellant. Lawrence S. Allen, Miami, for Appellee.
(Before CINDY S. LEDERMAN, IVAN F. FERNANDEZ, and DIANE WARD, JJ.)
(WARD, J.) This case is on appeal from an order of the trial court granting summary judgment in favor of Appellee. Appellee, the insured, filed suit against Appellant, the insurer, for personal injury protection (PIP) benefits after Appellee suffered injuries from an automobile accident. The trial court granted summary judgment in favor of Appellee on the issues of liability and amount of lost wages. For the reasons discussed below, we reverse the trial court’s grant of summary judgment and remand this matter to be dealt with according to this opinion.
We review this grant of summary judgment de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In order to prevail on a motion for summary judgment under Fla. R. Civ. P.1.510(c), the moving party must “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” It follows then that contradictory medical opinions in a case that hinges upon the reasonableness, relatedness, and necessity of certain medical treatment is crucial, if not dispositive, and should be reviewed by a trier of fact.
In reviewing the record of this matter, we must reverse the trial court’s grant of summary judgment because of the conflicting medical opinions of Dr. Calvo and Dr. Fleischer. Dr. Calvo, Appellee’s treating physician, opined that Appellee’s injuries prevented her from working. Diametrically opposed to Dr. Calvo’s medical opinion is the opinion of Appellant’s medical expert, Dr. Fleischer. Dr. Fleischer reported his conclusions in the “independent medical examination” (IME) report to the erect that Appellee’s injuries were not serious enough to prevent her from working. There can be no doubt that these two conflicting opinions speak to the heart of the issues of liability for lost wages and amount of lost wages — precluding summary judgment.
We so find, despite the fact that Appellant’s first utterance of the argument that there was a genuine issue of material fact came in its motion for rehearing. See McGowan v. Miami-Dade County, 724 So. 2d 683, 684 (Fla. 3d DCA 1999) (summary judgment reversed where appellant filed a motion for rehearing with affidavits which created a genuine issue of material fact); Fatherly v. California Fed. Bank, FSB, 703 So. 2d 1101, 1102 (Fla. 2d DCA 1997) (almost any additional evidence, whether newly discovered or not, is sufficient for relief on a timely motion for rehearing of a summary judgment if it presents triable issues of material fact) (citation omitted). Because both medical opinions were on the record before the trial court, this created a genuine issue ofmaterial fact which precludes summary judgment. To hold otherwise was in error.
Appellee asserts two other arguments that will be disposed of. First, it asserts that § 627.736(7), Fla. Stat. (2002) should have nullified the IME report because Dr. Fleischer is a chiropractor, while Dr. Calvo is an orthopaedic surgeon. Upon closer examination of the statute, however, it is clear that it only mandates that the doctors be of the same specialty when an “insurer seeks to withdraw payment of a treating physician.” The issue here is lost wages, not payment for medical treatment, and thus the statute is inapplicable. Second, Appellee argues that the trial court’s ruling comes to this court clothed in a presumption of correctness that cannot be disturbed absent a transcript of the lower court proceeding. While we acknowledge that the trial court’s ruling has a presumption of correctness, we are also of the belief that this presumption is not impervious to a showing of clear error. We are satisfied that the record paints a complete picture of the error committed below, and find as such.
Accordingly, we reverse the trial court’s grant of summary judgment and remand this matter for further proceedings consistent with this opinion. (LEDERMAN and FERNANDEZ, JJ., concur.)
* * *
