16 Fla. L. Weekly Supp. 513c
Online Reference: FLWSUPP 166PRINC
Insurance — Personal injury protection — Withdrawal of benefits — Valid report for purposes of withdrawal of benefits must be based on physical examination of insured performed by person preparing report or review of physical examination of insured performed at request of insurer — No error in refusing to consider peer review report based on review of physical examination performed by treating physician or in entering summary judgment for medical provider
Quashed at 35 Fla. L. Weekly D334a (United Auto Ins. Co. v. Hollywood Injury Rehab Center, Fla. 4DCA, 2-10-10)
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. HOLLYWOOD INJURY REHAB CENTER, a/a/o DAVID PRINCE, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 07-4412 CACE (07) & 07-12752 CACE (14) (Consolidated). L. T. Case No. 05-1472 COCE (53). March 11, 2009. Counsel: Michael Neimand, Office of General Counsel, United Automobile Insurance Company, Coral Gables. Marlene Reiss, Miami.OPINION
(ROBERT A. ROSENBERG, J.) THIS CAUSE is before the court on appellant, United Automobile Insurance Company’s appeal of the lower court’s entry of summary judgment in favor of the appellee, Hollywood Injury Rehab Center. The court having reviewed the parties’ briefs, having reviewed the record, and otherwise being duly advised in premises, decides as follows:
Appellee, Hollywood Injury Rehab Center (hereinafter “Hollywood”), as assignee of David Prince, filed suit against United Automobile Insurance Company (hereinafter “UAI”) for breach of contract of Personal Injury Protection benefits for injuries resulting from an automobile accident. On September 1, 2006, Hollywood filed a motion for summary judgment on the grounds that all treatment provided by Hollywood was reasonable, related, and necessary. On December 15, 2006, UAI filed a peer review report and affidavit by Dr. Millheiser in opposition to the motion for summary judgment. On December 26, 2006, the trial court granted the motion for summary judgment finding that Dr. Millheiser’s peer review report, supported by affidavit, was insufficient to demonstrate a disputed issue of material fact and that treatment provided by Hollywood was related and medically necessary. 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. Millheiser’s peer review report and affidavit. In his peer review report and affidavit with attached documents, Dr. Millheiser stated that he performed a review of the medical records for services/treatment rendered to David Prince. The trial court refused to consider Dr. Millheiser’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 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)
UAI asserts the definition of a valid report does not require the report to be based upon a physical examination of the insured person by the doctor writing the report. UAI contends that Dr. Millheiser’s peer review report was a valid report because it was based upon a review of a physical examination performed by the treating physician. Hollywood contends that the language of § 627.736(7)(a) is ambiguous in that the language following “or” requires both that the physician review the treatment records of the injured person “and” the report must be factually supported by “the examination” which can only refer back to the examination that the language preceding “or” requires.
When faced with a statute, courts must look to its plain language in reaching its interpretation, and should not resort to rules of statutory construction or legislative intent unless the actual language of the statute is unclear or ambiguous. Koile v. State, 934 So. 2d 1226, 1230-31 (Fla. 2006). The ambiguity as to whether a valid report pursuant to § 627.736(7)(a) must be based upon an independent medical examination or merely a review of the treating physician’s examination requires this court to look to legislative intent. See Polite v. State, 973 So. 2d 1107 (Fla. 2007). The underlined portions of the preceding statute were added in 2001. UAI concedes the Legislature intended the amendment to § 627.736(7)(a) to help remedy the use of “paper IME’s” to deny claims. The Senate Staff Analysis, which UAI appends to its Initial Brief, states in pertinent part:
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 reasonable, related, or necessary.
See Senate Staff Analysis and Economic Impact Statement to Senate Bill 1092.
UAI’s interpretation that a valid report pursuant to § 627.736(7)(a) may be based solely on the medical records and examination of the treating physician, which is essentially a “paper IME” would lead to a result contrary to the legislative intent of the amendment to § 627.736(7)(a). This court finds that a valid report, pursuant to § 627.736(7)(a), must be based upon physical examination of the injured person performed by the physician preparing the report or based upon a review of the physical examination of the injured person performed at the request of the insurer.
The recent decision from the Third District Court of Appeal cited by UAI in support of their assertion that a valid report may be based solely on the treating physician’s examination and records is not supportive. In United Automobile Insurance Company v. Bermudez, 980 So. 2d 1213 (Fla. 3d 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 reasonable, related 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 section 627.736(7)(a) 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 Court held that 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 report. However, the peer review report at issue in Bermudez, was based, in part, on an independent medical examination conducted at the request of the Insurer. In the instant case, neither Dr. Millheiser’s affidavit nor his peer review report state that either he physically examined the insured or that his opinion was based on an independent medical examination. Therefore, the trial court correctly determined that Dr. Millheiser’s peer review report was not supported by a physical examination of the insured and was not a valid report pursuant to §627.736(7)(a).
Since the trial court correctly determined that Dr. Millheiser’s peer review report and affidavit was not a valid report pursuant Fla. Stat. § 627.736(7)(a), this court need not address the argument regarding the lateness of the peer review report. Accordingly, it is hereby,
ORDERED AND ADJUDGED that the trial court’s order granting summary judgment in favor of appellee, Hollywood Injury Rehab Center, is AFFIRMED.
It is further ORDERED AND ADJUDGED that the grant of attorneys’ fees and costs by the lower court in favor of the appellee is AFFIRMED.
It is further ORDERED AND ADJUDGED that appellee’s motion for appellate fees and costs is also GRANTED. The trial court shall determine the amount upon remand.
