16 Fla. L. Weekly Supp. 633b

Online Reference: FLWSUPP 167LAFRA

Insurance — Personal injury protection — Withdrawal of benefits — Peer review report which states that reporting physician examined records from insured’s treating physician as well as those of two physicians who performed independent medical examinations was valid report to support withdrawal of benefits

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. BROWARD REHAB CENTER, INC., ORTHOPEDIC CENTER OF SOUTH FLORIDA, P.A., A-1 OPEN MRI, INC., a/a/o GENITA LA FRANCE, Appellees. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 08-15836 CACE 08, 08-28912. L.C. Case No. 06-1114 COCE (53). May 8, 2009. Counsel: Thomas Hunker, Office of the General Counsel, United Automobile Insurance Company, Miami. Brian H. Malamud, Fort Lauderdale.ORDER AND OPINION

(RONALD J. ROTHSCHILD, J.) THIS CAUSE comes before the Court upon Appellant, United Automobile Insurance Company’s appeal of the Order Granting Summary Judgment entered on March 26, 2008, and the Final Judgment, entered on March 26, 2008, in favor of the Appellee, Broward Rehab Center, Inc. Having reviewed the appellate file, applicable law, and being otherwise fully advised in the premises, the Court hereby decides as follows:

Appellee, Broward Rehab Center, Inc. (hereinafter “Broward”), as assignee of Genita LaFrance, filed suit against United Automobile Insurance Company (hereinafter UAI) seeking damages for overdue no-fault benefits, interest on overdue no-fault benefits, and interest on late payment of no-fault benefits, arising from a motor vehicle accident which occurred on April 8, 2005. On August 4, 2006, Broward filed a Motion for Summary Judgment on the grounds that the treatment provided by Broward was reasonable, related and necessary. The lower court granted Appellee’s Motion for Summary Judgment finding that Dr. Glatzer’s peer review report, supported by affidavit, was inadmissible in that it was based on a review of claimant’s medical records rather than a physical examination of the claimant. UAI timely filed the instant appeal.

The applicable standard of review for orders granting summary judgment is de novo. 5th Avenue Real Estate Dev., Inc. v. Aeacus Real Estate Ltd., 876 So.2d 1220 (Fla. 4th DCA 2004). Summary judgment is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000).

In the instant appeal, UAI argues that the trial court erred in refusing to consider Dr. Glatzer’s peer review report and affidavit. In his peer review report and affidavit with attached documents, Dr. Glatzer stated that he performed a review of the medical records for services/treatment rendered to Genita La France. The trial court refused to consider Dr. Glatzer’s peer review report because it was not supported by a physical examination of the insured and thus was not a valid report pursuant to § 627.736(7)(a) Florida Statute, which provides in pertinent part:

(7) MENTAL AND PHYSICAL EXAMINATION OF INJURED PERSON:

REPORTS. —

(a) Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. . .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 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. . .

§ 627.736(7)(a), Florida Statutes (2003) (emphasis added).

In this case, Dr. Glatzer filed a report with UAI which stated he was a licensed physician and that he had examined the file on Ms. Genita LaFrance which included a report and HCFA forms from Broward, reports from Dr. Wallace Williamson and Dr. Sheryl Lavender, and MRIs taken by Al Mobile MRI. Dr. Glatzer’s affidavit stated that he had reviewed the police report, an IME performed by Dr. Glen Siegel on May 19, 2005, and an IME performed by Dr. Khosrow Maleki, on June 10, 2005.

In United Automobile Insurance Company v. Bermudez, 980 So.2d 1213 (Fla. 3rd DCA 2008), the trial court granted summary judgment for the insured on the basis that the insurer did not satisfy the requirements of § 627.736(7)(a) because the report of the doctor stating that the treatments were not related, reasonable or necessary was not a valid report because it was based solely on his review of the medical records and was not supported by his own physical examination. The trial court certified the questions of whether an insurer was required by § 627.736(7)(a), Florida Statutes to obtain a medical report based upon a physical examination of an insured before it may withdraw personal injury protection benefits. The Third District Court of Appeal rephrased the question to read “[w]hether a medical report issued for the withdrawal of personal injury protections benefits pursuant to section 627.736(7)(a), Florida Statutes must be based upon a physical examination of the insured that is personally conducted by the physician issuing the report.” Id. at 1214. The Third District Court of Appeal looked at the language of the statute and the Senate Staff Analysis and Economic Impact Statement, Senate Bill 1092, at 12 (Fla. 2001) and disagreed with the trial court’s interpretation of the Senate Staff Analysis and found that a “valid report” for the withdrawal of PIP benefits does not have to be based on a physical examination by the actual physician preparing the report. Id. at 1215. The Court stated that “[i]nstead, we hold that under section 627.736(7)(a) a medical report issued for the withdrawal of PIP benefits may be based on a physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination.”

This case is substantially similar to the Bermudez case, and therefore, requires the same result. In the instant case, Dr. Glatzer’s report stated he examined the records from both, the claimant’s treating physicians, and the records from the two physicians who performed IMEs on the claimant. Accordingly, the peer review report at issue in Bermudez, was also based, in part, on an independent medical examination conducted at the request of the Insurer. Therefore, Dr. Glatzer’s report constitutes a “valid report” within the meaning of section 627.736(7)(a) (2006). The trial court erred in refusing to consider the report and finding that Dr. Glatzer’s affidavit and report failed to create an issue of fact.¹

ORDERED AND ADJUDGED that the trial court’s order granting summary judgment in favor of Appellee, Broward Rehab Center, Inc., is REVERSED. This matter is remanded to the trial court for further proceedings consistent with this Opinion.

It is further ORDERED AND ADJUDGED that because the Order Granting the Motion for Summary Judgment is being reversed, the Final Judgment Awarding Plaintiff’s Fees and Costs is also REVERSED.

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¹This case is dissimilar from other cases in this Circuit where our sister courts have held that a report that is not based on a physical examination does not constitute a valid report under § 627.736(7)(a), because in those cases, the only records examined by the doctor issuing the peer review report were those of the claimant’s treating physicians.