16 Fla. L. Weekly Supp. 22a
Insurance — Personal injury protection — Withdrawal of benefits — Reasonable proof — Physician’s report is not valid report for purposes of denying or withdrawing PIP benefits where report is based solely on review of records of treating physician and is not supported by independent medical examination — Order granting summary judgment in favor of medical provider is affirmed
Reversed at 34 Fla. L. Weekly D1516a (United Auto Ins. Co. v. Metro Injury & Rehab Center)
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. METRO INJURY & REHAB CENTER, a/a/o Magda Davis, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 07-437 AP, 08-168 AP. L.C. Case No. 06-17484-CC 05. November 13, 2008. An Appeal from Final Judgment of the County Court for Miami-Dade County, Judge Bronwyn Miller. Counsel: Michael J. Neimand, Office of General Counsel, United Automobile Insurance Company, for Appellant. Marlene Reiss, for Appellee.
(Before KREEGER, GROSS and EMAS, JJ.)
(EMAS, J.) This appeal, from a summary judgment entered in favor of Appellee Metro Injury & Rehab Center on a personal injury protection (PIP) claim, presents the following issue:
Is a reviewing physician’s report, issued for purpose of denying PIP benefits, a “valid report” under section 627.736(7)(a), Florida Statutes (2005), where the reviewing physician bases that report only upon a review of the records of the insured’s treating physician, and is not based upon, or factually supported by, any independent medical examination of the insured?
We answer the question in the negative, hold that a valid report under section 627.736(7)(a) must be based upon, or factually supported by, an independent medical examination, and affirm the trial court’s granting of summary judgment in favor of Appellee.
The material facts are not in dispute: Magda Davis was involved in an automobile accident on April 2, 2005, while insured under a PIP policy issued by United Automobile Insurance Company (“United Auto”). Davis sought treatment for her injuries at Metro Injury & Rehab Center (“Metro”), and assigned to Metro her right to benefits under the policy. On September 15, 2005, United Auto notified Metro that it was denying payment of Metro’s bills based upon a peer review report prepared by a reviewing physician, Dr. Michael Goldberg.
Metro thereafter sued United Auto for breach of contract, seeking the PIP benefits under the policy. United Auto answered and denied that the treatment was reasonable, related or necessary, based upon the report of Dr. Goldberg.
Metro filed its motion for summary judgment and United Auto, in opposition to the motion, filed an affidavit of Dr. Goldberg, together with his peer review report. In that report, Dr. Goldberg concluded that any further treatment was not medically reasonable, necessary, or related to the accident. Both partiesagree that Magda Davis did not submit to an independent medical examination conducted by Dr. Goldberg or by any other physician; instead Dr. Goldberg’s report was based solely upon a review of Metro’s treatment records of Davis.
The trial court granted Metro’s motion for summary judgment, concluding that Dr. Goldberg’s peer review report was not a “valid report” under section 627.736(7)(a), because it was neither based upon, nor factually supported by, an independent medical examination.
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000). Therefore, our review of the trial court’s final summary judgment is de novo. Sheikh v. Coregis Ins. Co., 943 So.2d 242 (Fla. 3d DCA 2006).
A. The Statute and its History
We first review the statutory history of section 627.736(7)(a). Prior to 1987, this subsection provided:
(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 benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians. The costs of any examinations requested by an insurer shall be borne entirely by the insurer. . . . Personal protection insurers are authorized to include reasonable provisions in personal injury protection insurance policies for mental and physical examination of those claiming personal injury protection insurance benefits.
As can be seen, the pre-1987 version of the statute, while providing for an independent medical examination of the insured at the request of the insurer, did not by its terms require such an examination before an insurer could withdraw PIP benefits. In 1987, the Florida Legislature amended the statute, adding the following language to the end of subsection (7)(a):
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 report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that the treatment was not reasonable, related, or necessary.
Ch. 87-282, §1, Laws of Fla.
This amendment required the insurer to obtain a report (often referred to as a “peer review report”) before it could withdraw PIP benefits, but did not define the nature of the records or examination upon which the reviewing physician was to base such a report. In 2000,1 the Fourth District Court of Appeal in Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc.,766 So.2d 229 (Fla. 4th DCA 2000) had occasion to interpret the 1987 amendment in answering the following certified question:
Is an insurer required by section 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 Fourth District answered the question in the negative:
Prior to July 4, 1987, the effective date of the amendment to section 627.736(7)(a), there was neither a statutory nor contractual limitation regarding the withdrawal of PIP payments under a contract of insurance. We can find no language in the amendment that requires the medical report to be based upon a physical examination of the insured. Without express language from the legislature, there is no reason to conclude that a physical examination is required.
Id. at 230 (emphasis added).
In 2001, following the Fourth District’s decision in Nationwide, the Florida Legislature amended Florida Statutes, section 627.736(7)(a), creating a “valid report” requirement and defining what constitutes a valid report. That amendment provided in pertinent part (amendatory language underlined):
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 the 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.
Ch. 2001-271, § 6, Laws of Fla.
Therefore, the question before this Court is whether this provision, added in 2001, requires an independent medical examination of the insured before a valid report may be issued for the purpose of denying personal injury protection benefits. Stated another way, does the term “examination” as used in section 627.736(7)(a) include an examination performed by the insured’s own treating physician during the course of treatment?
Preliminarily, Metro argues that this issue was recently decided by the Third District Court of Appeal in United Auto Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008). In Bermudez, the Third District addressed the following question certified as one of great public importance:
Whether a medical report issued for the withdrawal of personal injury protection 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 answered the question in the negative, holding that an independent medical examination does not have to be conducted personally by the reviewing physician; rather, the statute permits the reviewing physician to rely upon an independent medical examination conducted by another physician. In Bermudez, the insured had undergone an independent medical examination performed by another physician at the request of the insurer, and was relied upon by the reviewing physician in preparing the peer review report. The issue left open in Bermudez — and presented in the instant case — is whether such a report can be considered a “valid report” under section 627.736(7)(a) in the absence of any independent medical examination.2
B. Is the Statutory Provision Ambiguous?
Under section 627.736(7)(a), Fla. Stat. (2005), a “valid report” is one 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.” United Auto contends that the “examination” referred to above should be interpreted to include an examination performed by the insured’s own treating physician during the course of the insured’s treatment.
We must first determine whether the plain language of the statute is ambiguous, because “[i]f the statutory wording is unambiguous, then judicial inquiry is complete.” Klonis v. State Dep’t of Revenue, 766 So.2d 1186, 1189 (Fla. 1st DCA 2000).
Several appellate panels of the 11th Judicial Circuit have interpreted the statutory language at issue, reaching different conclusions. See, e.g., United Auto. Ins. Co. v. Stand-Up MRI of Miami, P.A., 15 Fla. L. Weekly Supp. 319 (11th Cir. App. 2008) (a valid report under §627.736(7)(a) need not be based upon an independent medical examination); United Auto. Ins. Co. v. ISOT Medical Center Corp., 15 Fla. L. Weekly Supp. 322 (11th Cir. App. 2008) (same).3 But see United Auto. Ins. Co. v. Santa Fe Medical, Inc., 15 Fla. L. Weekly Supp. 429 (Fla. 11th Cir. App. 2008) (holding that a valid report under §627.736(7)(a) must be based upon an independent medical examination).
Although the existence of conflicting caselaw interpreting a statutory provision does not necessarily compel a finding of ambiguity, Nettles v. State, 850 So.3d 487 (Fla. 2003), we conclude that a fair reading of the statute leaves the judiciary in genuine doubt about the correct application of the provision, Fajardo v. State, 805 So.2d 961 (Fla. 2d DCA 2001), and thus we apply relevant rules of statutory construction to determine and effectuate the intent of the Legislature.
C. Applying Rules of Statutory Construction
It is axiomatic that “legislative intent, as always, is the polestar that guides a court’s inquiry under the No-Fault Law.” United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla. 2002). “The primary source for determining legislative intent when construing a statute is the language chosen by the legislature to express its intent.” Donato v. American Tel. and Tel. Co., 767 So.2d 1146, 1150 (Fla. 2000).
To properly determine the scope or application of a statutory term, it is necessary to consider the act as a whole, including its title, the language used, its history, and the state of the law already in existence on the subject. State v. Webb, 398 So.2d 820 (Fla. 1981). All parts must be read in pari materia to achieve a consistent whole. GTC, Inc. v. Edgar, 967 So.2d 781 (Fla. 2007).
1. Title and Language Used
Section 627.736(7)(a), Florida Statutes (2005), is entitled: “Mental and Physical Examination of Injured Person; Reports”. This subsection provides a statutory procedure by which the insurer can request the insured to submit to an independent medical examination “whenever the insured’s mental or physical condition. . . is material to any claim. . .for personal injury protection benefits. . . .” Id. The general purpose of section 627.736(7) is “to give insurers an opportunity to determine the legitimacy of a claim so that an appropriate decision can be made as to whether benefits should be paid.” U.S. Security Ins. Co. v. Silva, 693 So.2d 593, 596 (Fla. 3d DCA 1997).
This subsection also defines the manner and means by which this independent medical examination will be conducted. As can be gleaned from even a cursory reading of the provision, subsection (7)(a) creates a mechanism for the insurer to request a physical or mental examination independent of any treatment or examination by the insured’s treating physician.
Subsection (7)(a) utilizes the words “examination”, “examinations” and “examining” a total of 12 times.4 They are summarized as follows:
1. Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim. . . such person shall, upon the request of an insurer, submit to mental or physical examination.
2. The costs of any examinations requested by an insurer shall be borne entirely by the insurer.
3. Such examination shall be conducted within the municipality where the insured is receiving treatment, or in a location reasonably accessible to the insured.
4-6. If the examination is to be conducted in a location reasonably accessible to the insured, and if there is no qualified physician to conduct the examination in a location reasonably accessible to the insured, then such examination shall be conducted in an area of the closest proximity to the insured’s residence.
7. Personal protection insurers are authorized to include reasonable provisions in personal injury protection insurance policies for mental and physical examination of those claiming personal injury protection insurance benefits.
8-9. An insurer may not withdraw payment of a treating physician 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 the 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.
10. The physician preparing the report must be in active practice, [which] means that during the 3 years immediately preceding the date of the physical examination or review of the treatment records the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions.
11-12. The physician preparing a report at the request of an insurer and physicians rendering expert opinions on behalf of persons claiming medical benefits for personal injury protection. . . shall maintain, for at least 3 years, copies of all examination reports as medical records and shall maintain, for at least 3 years, records of all payments for the examinations and reports.
United Auto candidly conceded at oral argument that, in 11 of the 12 instances in which these terms appear, they plainly refer to an independent medical examination; that is, a physical or mental examination conducted at the request of the insurer and performed by a physician other than the treating physician. When reading the subsection in context, such a conclusion is clearly correct. United Auto argues, however, that in one instance (within the phrase “factually supported by the examination and treatment records, if reviewed”) the word “examination” should not be limited to an independent medical examination, but should be interpreted to include an examination performed by the insured’s own treating physician during the course of treatment. In essence, United Auto urges us to find that a reviewing physician can issue a report opining that treatment is not reasonable, related or necessary based solely upon a review of the insured’s treatment records, rather than upon an independent medical examination.
This proposed interpretation, however, flies in the face of several rules of statutory construction. Under the doctrine of noscitur a sociis (translated to mean “a word is known by the company it keeps”), the meaning of statutory terms and the legislative intent behind them may be discovered by referring to words associated with them in the statute. Turnberry Isle Resort and Club v. Fernandez, 666 So.2d 254 (Fla. 3d DCA 1996).
Further, in construing the terms of a statute, the court must consider the context of the statute and the use of the same words elsewhere in the same statute or provision. Carraway v. Armour & Co., 156 So.2d 494 (Fla. 1963); Hankey v. Yarian, 755 So.2d 93 (Fla. 2000). It is clear that the term “examination”, as used in the pre-2001 version of the statute, meant an independent medical examination; of this, there can be no reasonable doubt, in light of the title, language and context of the remainder of subsection (7)(a).5
Applying these rules of statutory construction, and given the existing understanding of the meaning of “examination”, the fact that the Florida Legislature used the exact same term in amending section 627.736(7)(a) compels us to conclude that the Legislature intended “examination” to have the same meaning.
2. Legislative History and Judicial Decisions
United Auto cites no legislative history to support its argument that the definition of “examination” should differ in this one instance from the 11 other instances in which the same term appears within the subsection. To the contrary, the history and timing of the amendment demonstrates that the Legislature enacted the 2001 amendment precisely to eliminate an insurer’s authority to deny PIP benefits without an independent medical examination.
The Fourth District’s 2000 decision in Nationwide, as discussed earlier, held that the then-existing statute did not require that a peer review report be based upon a physical examination of the insured. In the next legislative session following the Nationwide decision, the Florida Legislature amended section 627.736(7)(a) to require a “valid report” before denying PIP benefits, and defined a valid report as “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.” Ch. 2001-271, §6, Laws of Fla., at 9-10. This is significant in light of the rule of statutory construction that a legislature is presumed to know the existing law when a statute is enacted, including “judicial decisions on the subject concerning which it subsequently enacts a statute.” Collins Inv. Co. v. Metropolitan Dade County, 164 So.2d 806, 809 (Fla. 1964). The Florida Legislature is thus presumed to have been aware of the Nationwide decision when it amended the statute to require a “valid” report and defined such a report as one which must be “factually supported by the examination.” If the 2001 amendment is to have any meaning, it must be read in light of Nationwide‘spronouncement that no physical examination was required under the prior version of subsection (7)(a). Reading the 2001 amendment within this historical context leads us to conclude that the Legislature intended to require that a peer review report be based upon, or factually supported by, an independent medical examination, and did not intend to expand the definition of “examination” to include examinations performed by the insured’s own treating physician.
Further support for this conclusion can be found in the Senate Staff Analysis and Impact Statement (“Staff Analysis”) prepared for this legislative bill (CS/SB 1092). The Staff Analysis addressed the perceived problem with the existing law and the effect of the proposed legislation:
Independent Medical Examinations (IMEs)
***
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 insurer’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.
Senate Staff Analysis at 11-12.
Although there may not be judicial unanimity on the value of relying upon legislative staff analysis in discerning legislative intent, see, e.g., Massey v. David, 979 So.2d 931 (Fla. 2008); GTC, Inc. v. Edgar, 967 So.2d 781, 789 n.4 (Fla. 2007), such analyses can at least provide “one touchstone of the collective legislative will.” White v. State, 714 So.2d 440, 443 n.5 (Fla. 1998) (quoting Sun Bank/South Fla., N.A. v. Baker, 632 So.2d 669, 671 (Fla. 4th DCA 1994)). The Staff Analysis helps to buttress our conclusion that the Florida Legislature, by its 2001 amendment, intended that a “valid report” must be based upon, or factually supported by, an independent medical examination. A “valid report” under section 627.736(7)(a), Florida Statutes (2005), means a report that can be prepared in one of two ways:
Prepared by the IME Physician:
This report is prepared by the same physician who examines the insured pursuant to an insurer’s request for an independent medical examination.
a. Such a report must be factually supported by the IME physician’s examination;
b. In preparing the report, the IME physician need not review the insured’s treatment records; however if the treatment records are reviewed, those records must also factually support the report.
Prepared by a Reviewing Physician:
This report is prepared by a physician other than the physician who performed the independent medical examination.
a. Such a report must be factually supported by the IME physician’s examination;
b. Such a report must also be based upon a review of the insured’s treatment records and must be factually supported by those records.
A report based upon only 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).
For these reasons, the judgment of the trial court is AFFIRMED.
We affirm the trial court’s award of attorney’s fees in favor of Appellee, grant Appellee’s motion for entitlement to appellate attorney’s fees and costs, and remand this cause to the trial court for a determination of the appropriate amounts. (KREEGER and GROSS, JJ., concur.)
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1Section 627.736(7)(a), Fla. Stat. underwent additional revisions between 1987 and 2000, none of which are relevant to the issues raised by this appeal.
2Although the Bermudez Court did not answer the precise question raised by this appeal, it did observe: “The 2001 amendment required that an insurer’s withdrawal of payment be preceded by the procurement of a ‘valid report.’ §627.736(7)(a), Fla. Stat. (2001). As clearly set forth in the amendment, a ‘valid report’ must be ‘factually supported by the examination and treatment records if reviewed.’ Id. As such, a ‘valid report’ requires reliance on a physical examination of the insured prior to an insurer’s withdrawal of payment.” Bermudez, 980 So.2d at 1216 n.2 (emphasis added).
3The opinion in ISOT cited Nationwide, supra, in support of its holding that no independent medical examination is required under the statute. In the case at bar, of course, Nationwide is not dispositive of the issue, because it was decided before the Florida Legislature added the relevant amendatory language in 2001.
4Additionally, subsection (7)(b) of §627.736, which addresses the disclosure of the examining physician’s report, utilizes the terms “examination”, “examine”, “examines”, “examined” or “examining” a total of 14 times.
5An additional rule of statutory construction provides that, in the absence of any contrary intent, where a legislature uses the identical word or phrase in different statutory provisions, courts may properly assume they were intended to mean the same thing. Goldstein v. Acme Concrete Corp., 103 So.2d 202 (Fla. 1958). Certainly this rule would apply with even greater force to the Legislature’s use of the identical word in adding language to the very same subsection of an existing statutory provision.
