16 Fla. L. Weekly Supp. 1036a
Online Reference: FLWSUPP 1611MALP
Insurance — Personal injury protection — Withdrawal of benefits — Valid report — No error in finding that peer review report was not valid report supporting withdrawal of benefits where report was based on incomplete medical records, did not attach the records reviewed, and conflicted with report of prior independent medical examination
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. COMPLETE MEDICAL REHAB & FAMILY CARE CENTERS, INC., a/a/o MARIA MALPARTIDA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-123 AP. L.T. Case No. 07-6555 SP 05. October 13, 2009. An appeal from a decision of the Miami-Dade County Court. Counsel: Thomas L. Hunker, for Appellant. Kevin W. Whitehead, for Appellee.
(Before MIGNA SANCHEZ-LLORENS, STACY D. GLICK and YVONNE COLODNY, JJ.)
(GLICK, J.) Appellant United Automobile Insurance Company (“United Auto” or the insurer) contends that the trial court erred in granting summary judgment for the Appellee/Defendant below, Complete Medical Rehab & Family Care Centers, Inc. (“Complete Medical” or the provider). The trial court judge granted summary judgment for the provider after it had determined that the insurer’s peer review report was insufficient, because the trial court concluded that: (1) it was not a valid report since the peer review was insufficient on its face; and, (2) because the peer review was not consistent with the IME report. This appeal followed, and the issue before this panel is whether the trial court’s grant of summary judgment for the provider should be affirmed. We conclude that it should. As for the Court’s May 15, 2009 opinion, by issuing this revised opinion, this Court grants the Appellee’s motion for Clarification of that opinion, and denies the Appellant’s motion for rehearing of same.
Under Fla. R. Civ. P. 1.510(c), the trial court can only grant summary judgment “if the pleadings,- depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, 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.” And, when reviewing the entry of a summary judgment, the appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000). The standard of review for a lower court’s order granting summary judgment is de novo. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000).
United Auto contends that the trial court improperly failed to consider the peer review affidavit and report it filed in opposition to the provider’s motion for summary judgment because the trial court found it insufficient on its face and inconsistent with Dr. Goldberg’s prior report. Section 627.736(7)(a), Fla. Stat. (2005), requires a valid report to support the termination of PIP benefits. Complete Medical had successfully argued to the trial court that the report was invalid and insufficient because Dr. Goldberg did not have the opportunity to review the insured’s initial examination report, as he indicated in his affidavit. His opinion therefore lacked the necessary foundation as it was based on incomplete medical records. Additionally, United Auto failed to attach to the affidavit all of the “reviewed” records outlined in the affidavit and the peer review.
Another valid basis for the trial court to have rejected Dr. Goldberg’s affidavit is that it failed to create a genuine issue of material fact so as to defeat summary judgment for the provider. Dr. Goldberg had opined on April 19, 2004 that the further treatment for the insured would be unnecessary, unreasonable, and unrelated. However, over a year later, on June 30, 2005, Dr. Goldberg offered the opinion that several treatment modalities and services which pre-dated the date of his physical examination of the insured were unnecessary, unreasonable, and unrelated. The trial court considered this second opinion of his to have been in direct contradiction to his previous opinion that further treatment was not medically necessary.
For an insurer to withdraw payment of a treating physician without the consent of the injured claimant, the insurer must first obtain a valid report by a Florida physician licensed under the same chapter as a treating physician whose treatment authorization is sought to be withdrawn, stating that the treatment was not reasonable, related, or necessary. See Section 627.736(7a), Fla. Stat. (2005). The trial court could have considered that United Auto failed to obtain a valid report, sufficient to cut off benefits to the insured, as the peer review report by Dr. Goldberg was not completed until June 30, 2005, over a year after the May 6, 2004 letter suspending benefits.
Because the trial court was correct in not giving credence to the affidavit of Dr. Goldberg as it was not a valid report for a multitude of reasons, it is not entirely necessary to address the other arguments made by United Auto. The trial court was correct that Dr. Goldberg’s peer review was not a valid report and that it conflicted with his IME report.
Therefore, we affirm the decision of the trial court. The affidavit of Dr. Goldberg was not a valid report under §627.736(7)(a), Fla. Stat. (2005) and therefore the trial court was correct in granting summary judgment to the provider. Additionally, Appellee Complete Medical should be awarded appellate attorney’s fees pursuant to §627.428, Fla. Stat., as the prevailing party on this appeal. We remand to the trial court for proceedings consistent with this opinion. (SANCHEZ-LLORENS, and COLODNY, JJ., concur.)
