16 Fla. L. Weekly Supp. 594a
Online Reference: FLWSUPP 166LAURI
Insurance — Personal injury protection — Withdrawal of benefits — Medical report — Valid report for withdrawal of PIP benefits must be based on physical examination performed by reporting physician or physician who conducted independent medical examination, not physical examination by treating physician
SOUTH FLORIDA PAIN & REHABILITATION, P.A., (a/a/o FRANK LAURISTON) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-15429 COCE 55. April 13, 2009. Sharon L. Zeller, Judge. Counsel: Nathan J. Avrunin, South Florida Trial Lawyers, for Plaintiff. David Bender, Matt Hellman, P.A., for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO REASONABLE RELATEDNESS AND MEDICAL NECESSITY
THIS CAUSE came before the Court on Plaintiff’s Motion for Summary Judgment on the issues of whether the bills in question are reasonable, related and medically necessary and the Court having heard argument of counsel, and being otherwise advised in the premises the Court finds as follows:
Findings of Fact:
The Plaintiff, South Florida Pain and Rehabilitation, P.A. treated Frank Lauriston from June 14, 2006 to July 31, 2006 for injuries suffered in an automobile accident on or about June 8, 2006. The total bills amounted to $7,110.00. The Defendant, United Automobile Insurance Company, failed to pay any of the medical bills. The Defendant did not schedule Frank Lauriston for a compulsory physical examination.
On February 20, 2009, the Defendant obtained a records review Affidavit from Dr. Joseph Costello, D.C.
Based on United Automobile v. Metro Injury, 16 Fla. L. Weekly Supp. 22 (11th Judicial Circuit Court November 13, 2008) and State Farm Fire & Casualty Co. v. Perdomo, 16 Fla. L. Weekly Supp. 137a (11th Judicial Circuit Court February 3, 2009) this Court finds that the affidavit of Dr. Costello is legally insufficient to defeat Plaintiff’s motion.
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 (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 Florida Statute Section 627.736(7)(a), 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 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 insured’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 Pages 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 the factually supported by the IME doctor’s examination and a review of the insured’s treatment records and must he 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 the legislative intent.
The title of Florida Statute § 627.7236(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, this Court finds 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 is 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.
