At stake in Gillan v. Government Employees Insurance Co., No. 28075 (Haw. Ct. App. April 17, 2008), was whether the insurer could deny Personal Injury Protection (PIP) benefits based upon a review of medical records by a doctor chosen by the insurer but without the insured’s approval.
Gillian was injured in an accident while a passenger in a car insured by GEICO. It was undisputed Gillian was entitled to treatment under PIP coverage of GEICO’s policy. The problem arose when Gillian received additional treatment many months later. GEICO then hired its own doctor to review the insured’s medical records. GEICO’s doctor determined Gillian’s subsequent complaints were not a result of the accident and GEICO denied the additional claims.
The insured sued, alleging GEICO had improperly hired a doctor to do a record review in violation of Haw. Rev. Stat. §431:10C-103.5 (b). The purpose of Haw. Rev. Stat. §431:10C-103.5 (b) was to require an insurer to obtain mutual agreement from the claimant regarding the identity of the examiner to perform an independent medical exam (“IME”) if the insurer questioned whether past or future treatment was appropriate and reasonable. Further, the statute required the insurer to pay PIP benefits for appropriate and reasonable treatment. The circuit court granted the insured’s motion for summary judgment, holding that GEICO was prohibited from relying on its doctor’s report as a basis for denying PIP benefits.
On appeal, the ICA crystallized the issue as follows: in the context of Haw. Rev. Stat. §431:10C-103.5 (b), is a “record reviewer” an independent medical examiner? If the answer was “yes,” then GEICO violated the statute by selecting its doctor to review the insured’s medical records without approval of the insured. GEICO argued a record review was an ancillary procedure incident to conducting an IME and not by itself an IME. In Engle v. Liberty Mutual Fire Ins. Co., 402 F. Supp. 2d 1157 (D. Haw. 2005), the federal district court held that a record review performed in isolation was not an IME under Hawaii’s statute. Further, Haw. Rev. Stat. §431:10C-103.5 (b) did not equate a record review with an IME. The ICA found Engle’s reasoning persuasive and concluded GEICO did not violate Haw. Rev. Stat. §431:10C-103.5 (b) by hiring the record reviewer.
