16 Fla. L. Weekly Supp. 1129a

Online Reference: FLWSUPP 1612HYMA

Insurance — Personal injury protection — Denial of benefits — Valid report — No merit to argument that valid report is not required where insurer denies PIP benefits rather than reducing or withdrawing benefits — Peer review report need not be based on physical examination performed by reporting physician to be valid report

STATE FARM MUTUAL AUTO. INS. CO., Appellant, v. HYMA MEDICAL CENTER, INC., a/a/o Jorge Pino, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-005 AP. L.C. Case No. 06-4918 CC 05 (03). October 29, 2009. An Appeal from the County Court of the Eleventh Judicial Circuit of Florida in and for Miami-Dade County, Teretha Lundy Thomas, Judge. Counsel: Douglas H. Stein and Stephanie Martinez, Anania, Bandklayder, Blackwell, Baumgarten, Torricella & & Stein, PA., for Appellant. Annabel C. Majewski, Wasson & Associates, Chartered and Jabari Prempeh, II, Barakat, Prempeh & Jacobs, P.L., for Appellee.

(Before Bailey, Freeman and Leban, JJ.)

(LEBAN, Judge.) Appellant State Farm Insurance Company (“State Farm”) appeals a final summary judgment entered in favor of Hyma Medical Center, Inc. a/a/o Jorge Pino (“Hyma Medical”) on a denial of payments for PIP benefits. The sole issue on appeal is whether the trial court erred in striking Dr. Gentile’s peer review report and affidavit as “not timely and/or valid pursuant to Fla. Stat. § 627.736(7)(a)(2003).” After the trial court struck the peer review report, State Farm, had no admissible evidence to support the defense that a genuine issue of material fact exists as to the reasonableness, relatedness and medical necessity of the services provided. State Farm argues that the trial court erred because it struck the doctor’s peer review report and affidavit based on § 7(a) of the statute, instead of § 4(b). State Farm takes the position that this is a case involving the denial of benefits. Thus, only § 4(b) applies, which does not require a “valid [peer review] report”.

We note that a Second District Court of Appeal case, State Farm. Mut. Auto. Ins. Co. v. Rhodes and Anderson, D.C., P.A., d/b/a Venice Chiropractic Ctr., 2008 WL 786856 (Fla. 2nd DCA 2008) [33 Fla. L. Weekly D839a] holds that there is a statutory distinction between the denial of benefits and the withdrawal of benefits. The Eleventh Circuit follows the Third District Court of Appeal decision in United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213, 1215-16 (Fla. 3d DCA 2008). Bermudez explicitly disagrees with Rhodes and Anderson and suggests that there is no distinction between withdrawal, reduction or denial of benefits. Id. Bermudez explicitly reaffirms the earlier Third District decision in United Auto. Ins. Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998). Id.

[W]e reaffirmour holding in Viles that a valid report is required where an insurer attempts to reduce, withdraw, or deny PIP benefits on the grounds of reasonableness, necessity or relationship.

Bermudez, 980 So.2d at 1216, citing Viles, 726 So.2d at 321.

We find that State Farm’s distinction among withdrawal, denial and reduction of benefits is outdated. However, we find merit in State Farm’s defense of its peer review report despite its lack of independent medical examination.

A recent Third District decision is determinative in the instant case. In United Automobile Insurance Company v. Metro Injury & Rehab Center, a/a/o Magda Davis, 2009 WL 2243804 (Fla. App. 3 Dist.), 34 Fla. L. Weekly D1516, the insurer denied benefits under § 7(a) based on a doctor’s report. The insurer’s doctor, having reviewed the accident report, medical records and statements of the treating physician, concluded that further treatment was not reasonable, necessary or related to the accident. The parties filed cross motions for summary judgment. The insurer filed its motion for summary judgment based on an affidavit of its reviewing doctor. The medical provider assignee moved for summary judgment on its breach of contract action for PIP benefits and prevailed. The circuit court affirmed the summary judgment, holding that a report based only on a review of the records of the insured’s treating physician is not a valid report within the meaning of section 627.736(7)(a). On writ of certiorari, the Third District quashed the decision of the circuit court on grounds that the circuit court had departed from clearly established law.

The Third District in Metro Injury reinforced Bermudez, stating:

[T]he physician preparing the report does not have to personally examine the insured. He or she may base the report on another physician’s examination whether an IME or an examination conducted by the treating physician.

***

We follow our prior holding in Bermudez, and hold that, in order to constitute a “valid report” under section 627.736(7)(a)¹, the physician who issues the report must be a physician who examines the insured or, excluding the treating physician, a physician who reviews the examination and treatment records of the insured. The reporting physician does not have to have personally conducted a physical examination of the insured. We would like to stress, in the hope of avoiding any future confusion, that, although, in Bermudez, an. IME had been performed, Bermudez does not stand for the proposition that an IME is required in order for a report to be a “valid report.”

Metro Injury, 2009 WL 2243804 (Fla. App. 3 Dist.)(emphasis added)

We interpret the Third District’s Metro Injury decision as a clarification and reinforcement of its previous decision in Bermudez. See also, United Auto v. Millenium Diagnostic Imaging Center, Inc., a/a/o Sandra Perez, 12 So. 3d 242, 246 (Fla. 3d DCA 2009) (holding, in part, based on Bermudez, that a medical report issued by the insurer’s doctor constitutes a “valid report” under § 627.736(7)(a), even though the report was not based on his physical examination of the insured).

In the instant case, Appellant State Farm produced a peer review report 8 months after treatment had been rendered, but had not conducted an independent medical examination. We find that pursuant to Metro Injury the trial court erred in striking State Farm’s peer review report because this report need not be based on a physical examination by the reviewing doctor himself.

Upon a de novo review, we find that State Farm’s peer review report created a genuine issue of material fact and raised a viable defense against Hyma’s summary judgment motion. Thus, we find the trial court erred in granting summary judgment in favor of Hyma given the outstanding issues of dispute involved. Accordingly, the trial court’s decision is REVERSED and REMANDED with instructions to apply Metro Injury.

Appellee’s motion for appellate attorney’s fees is DENIED. (BAILEY and FREEMAN, JJ., concur.)

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¹Footnote 2 of Metro Injury states: “At oral argument, this Court raised the question of whether, in fact, instead of being a question of the interpretation of the “valid report” provision of section 627.736(7)(a), the proper analysis should have been pursuant to section 627.736(4)(b). Neither party raised this issue below or in their briefs and the opinion of the Appellate Division of the Circuit Court addressed the issue as a 627.736(7)(a) question. Thus, we will issue this opinion based on an analysis of the 627.736(7)(a) issue presented.”