17 Fla. L. Weekly Supp. 81b
Online Reference: FLWSUPP 1702RABA
Insurance — Personal injury protection — Withdrawal of benefits — Valid report for withdrawal of PIP benefits does not have to be based upon physical examination conducted by physician preparing report; it may be based on physical examination performed by treating physician or independent medical examination
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. EDUARDO J. GARRIDO, P.A., a/a/o YEANS RABAGO Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-529 AP. L.T. Case No. 06-12836 SP 25 (4). December 21, 2009. On Appeal from the County Court for Miami-Dade County. Nuria Saenz, Judge. Counsel: Michael J. Neimand, United Automobile Insurance Company Office of the General Counsel, for Appellant. Christian Carrazana, Law Offices of Panter, Panter, Sampedro, P.A., for Appellee.
(Before DIAZ, CUETO, and ARZOLA, JJ.)
CONFESSION OF ERROR
(PER CURIAM.) Appellee has filed a Confession of Error in this matter.
The Defendant/Appellant, United Automobile Insurance Company (“Insurer”) appeals a final judgment in favor of Plaintiff/Appellee, Eduardo J. Garrido, DC, PA (“Provider”) as assignee of Yeans Rabago (“Insured”). The trial was based on Provider’s Complaint against Insurer for breach of contract for failure to pay any Personal Injury Protection (“PIP”) benefits. In dispute at trial was whether the treatment was reasonable, related, and medically necessary.
At trial, Provider filed its motion in limine to exclude Dr. Merrit from testifying about his peer review on the grounds that it was not a valid report because Dr. Merrit did not conduct a physical examination of the Insured, nor did he base the Peer Review on an Independent Medical Examination (IME). Dr. Merrit’s Peer Review was prepared based on the medical record established by the treating physician’s examination of the Insured.
The issue on appeal was whether the trial court erred in granting summary judgment in favor of the Provider where the Insurer’s Peer Review was not considered, since it was not based on an IME. The Peer Review ostensibly created a genuine issue of disputed fact as to reasonableness, relatedness, and medical necessity.
The trial court granted the motion based on an interpretation of statutes and case law. However, recent opinions of the Third District Court of Appeal have clarified the law in this matter.
In United Automobile Insurance Co. v. Santa Fe Medical Center, 2009 WL 3188957, at *6-*7 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b], the Third District Court stated, in pertinent part:
[a]lthough Bermudez, in dicta, suggests that Viles [United Automobile Insurance Co. v. Viles, 726 So. 2d 320 (Fla. 3d DCA 1998)] also applies the section 627.736(7)(a) valid medical report requirement to the denial of PIP benefits, a careful reading of the case demonstrates that it does not. Viles only applies section 627.736(7)(a) to the withdrawal or termination of authorization for further treatment, not to an initial outright denial of benefits. “The statute plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment.” Viles, 726 So. 2d at 321 (emphasis added). . . .
In United Automobile Insurance Co. v. Metropolitan Injury & Rehabilitation Center, 16 So. 3d 897, 900 (Fla. 3d DCA 2009), the Third District Court of Appeal stated in pertinent part:
[i]n construing whether this was a “valid report” under the statute, we found that a “valid report” for the withdrawal of PIP benefits does not have to be based upon a physical examination conducted by the actual physician preparing the report. Instead, we held that, under section 627.736(7)(a), a “valid report” 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.” Bermudez, at 1215 (emphasis added).3 In other words, the 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.
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We would like to stress, in the hope of avoiding any future confusion, that, although, in Bermudez, anIME 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.”
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3The holding in Bermudez was, in part, based on the legislative history of the statute. See Senate Staff Analysis and Economic Impact Statement, Senate Bill 1092 (Fla. 2001), which supports our determination here.
As such, this matter is reversed and remanded to the trial court for proceedings consistent with this ruling.
