16 Fla. L. Weekly Supp. 590b
Online Reference: FLWSUPP 166BUENO
Insurance — Personal injury protection — Withdrawal of benefits — Medical report — Valid report for purposes of withdrawal of PIP benefits may be supported by independent medical examination conducted at request of insurer, but not by physical examination by treating physician
NDNC NEUROLOGICAL TREATMENT CENTER, a/a/o Juana Bueno, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-6542 COCE (55). March 11, 2009. Sharon L. Zeller, Judge. Counsel: Emilio Stillo, South Florida Trial Lawyers LLC, Sunrise. Terri Kim, Office of the General Counsel, United Automobile Insurance Company, Miami Gardens.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO REASONABLE,RELATED AND NECESSARY EXPENSES
THIS CAUSE came before the Court October 21, 2008, on Plaintiff’s Motion for Partial Summary Judgment as to Reasonable, Related and Necessary, and the Court’s having reviewed the entire Court file; heard argument; reviewed relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:
The Plaintiff treated Juana Bueno from October 14, 2002 to January 7, 2003 for injuries suffered in automobile accident on or about October 13, 2002. Medical treatment rendered by the Plaintiff totaled $7,964.00. The Defendant did not pay any of the patient’s medical bills within 30 days of receipt of the bills. The Defendant did not schedule Juana Bueno for a compulsory physical examination nor furnish an itemized specification of benefits to the Plaintiff.
On March 26, 2004, the Defendant obtained a records review from Dr. Peter J. Millheiser, MD. The Defendant has filed the affidavit of Dr. Peter J. Millheiser, MD in opposition to Plaintiff’s motion.
The Court has considered the affidavit of Dr. Peter J. Millheiser, MD but finds it insufficient based on United Automobile v. Metro Injury, 16 Fla. L. Weekly Supp. 22 (11th Cir App. Nov 13, 2008) and State Farm Fire & Casualty Co. v. Perdomo, 16 Fla. L. Weekly Supp. 137a (11th Cir App. Feb 3, 2009).
Looking at the analysis in these cases this Court would like to reiterate some of the more salient points. After the Fourth District’s decision in Nationwide Mutual v. SE Diagnostics, 766 So.2d 229 (Fla. 4th DCA 2000), where the court found no language that required a medical report to be based upon a physical examination, the Legislature added the last sentence in Section 627.736(7)(a), F.S. which states in part:
“An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn stating that treatment was not reasonable, related, or necessary. A valid report is one that is prepared and signed by the physician examining the injured person or reviewing the treatment records of the injured person and is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician (emphasis added).
Does the term “examination” include an examination performed by the insured’s own treating physician? What did the Legislature intend by this amendment? The Senate Staff Analysis and Impact Statement prepared for the bill addressed the problem with the existing law and stated:
The [proposed] legislation requires that such a report be a “valid” one and specifies what a valid report means. It provides that such a report is one prepared and signed by the physician examining the injured person or, in the alternative, reviewing the treatment records of the injured person and such report is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician. The effect of this provision is to help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurer’s physician merely reviews the medical treatment documents of the injured person and writes a report stating that such treatment was not reasonable, related or necessary. [Emphasis added]
Senate Staff Analysis at 11-12.
A valid report could not be a “paper IME” and would be a report either prepared by the IME doctor or by a reviewing physician whose report must be factually supported by the IME doctor’s examination and a review of the insured’s treatment records and must be factually supported by those records. A report based upon only a review of the records of the insured’s treating physician flies in the face of legislative intent.
The title of §627.736(7)(a) is “Mental and Physical Examination of Injured Person; Reports”. In its use of the word examination(s) a total of twelve times, each time it is referring to an examination made upon the request of an insurer. Even the insurance company in United v. Metro, supra, conceded that in 11 out of the 12 times in which the term “examination” appears, it refers to an independent medical examination conducted at the request of the insurer and performed by a physician other than the treating physician. Why should the court carve out an exception for the last sentence? Doing so would take it totally out of context and is not in line with normal statutory construction.
For the reasons set forth, I find that a valid report may be performed either by the reviewing physician whose report is factually supported by the IME’s physical examination, or an IME physician, and not a physical examination by the treating physician which does not factually support the conclusion of the “reviewing” physician. A “valid report” cannot simply be a “paper IME.” Therefore it is hereupon
ORDERED AND ADJUDGED that said Motion be, and the same is hereby GRANTED.
