Boone v. Commerce Ins. Co.

• Citation: 884 N.E.2d 483,451 Mass. 192
• Decision Date: 17 April 2008
• Docket Number: SJC-09991.
• Parties: Daniel BOONE v. COMMERCE INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts

884 N.E.2d 483

451 Mass. 192

Daniel BOONE v. COMMERCE INSURANCE COMPANY.

SJC-09991.

Supreme Judicial Court of Massachusetts, Worcester.

Argued January 7, 2008.

Decided April 17, 2008.

Nelson G. Apjohn, Boston (John P. Donohue, Worcester, & Daniel P. Olohan with him) for the defendant.

Brian W. Murray, Milford, for the plaintiff.

The following submitted briefs for amici curiae:

E. Michael Sloman for Automobile Insurers Bureau.

Richard Hodyl, Jr., Chicago, IL, & Myles W. McDonough, Boston, for Property Casualty Insurers Association of America.

David O. Brink, Bruce Medoff, Erica M.D. Barrie, & Shahan J. Kapitanyan, Quincy, for Amica Mutual Insurance Company & others.

Andre A. Sansoucy, Boston, for Massachusetts Insurance Federation, Inc.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

IRELAND, J.

This case presents the issue whether G.L. c. 90, § 34M, fourth par., prevents an automobile insurer from terminating personal injury protection (PIP) benefits based on an independent medical examination (IME) of a claimant by a practitioner licensed under a medical specialty different from the specialty of the treating or billing practitioner. A Superior Court judge granted the plaintiff's motion for summary judgment concluding that the statute required the determination to cease paying PIP benefits be made by a medical practitioner licensed in the same medical specialty as the treating or billing practitioner. The Appeals Court affirmed the judgment of the Superior Court. Boone v. Commerce Ins. Co., 68 Mass.App. Ct. 354, 354-355, 862 N.E.2d 49 (2007). We granted the defendant's application for further appellate review. Because we conclude that the language, purpose, and legislative history of G.L. c. 90, § 34M, fourth par., support the conclusion that a PIP insurer may refuse to pay for medical bills, based on a physical examination of the claimant by a medical practitioner licensed under a medical specialty different from the treating or billing practitioner, we reverse the order of the Superior Court granting the plaintiff's motion for partial summary judgment, and grant partial summary judgment for Commerce.

Facts and procedural background. The facts underlying this appeal are not in dispute. In December, 1996, the plaintiff, Daniel Boone, was struck by a motor vehicle that was operated by Stephen M. Bonina and insured by Commerce Insurance Company (Commerce). The plaintiff suffered injuries to his head, neck, shoulder, and back.

In January, 1997, the plaintiff commenced treatment with a chiropractor for his injuries. The plaintiff also filed a claim for PIP benefits to cover his chiropractic bills.¹ Commerce paid the bills for the treatment until September 17, 1997.

On September 15, 1997, at the request of Commerce, the plaintiff submitted to an IME conducted by an orthopedic surgeon who determined that, although the plaintiff's injuries were causally related to the motor vehicle accident, continued medical treatment was unnecessary. Based on this opinion, Commerce terminated PIP benefits on September 17, 1997. Nevertheless, the plaintiff continued his treatment until June 22, 1998, incurring additional bills for chiropractic services that totaled $4,300.

In September, 1998, the plaintiff filed a three-count complaint in the District Court claiming, respectively, that he was injured as a result of Bonina's negligence for which he sought reimbursement for his medical expenses in excess of $2,000; that Commerce breached the terms of its policy by failing to provide PIP benefits; and that Commerce violated G.L. c. 93A and G.L. c. 176D.

On cross motions for partial summary judgment on the two counts against Commerce, the plaintiff argued that, pursuant to G.L. c. 90, § 34M, fourth par., an insurer cannot refuse to pay a bill for medical services submitted by a medical provider licensed under one section of G.L. c. 112 based solely on an examination of the claimant by a medical provider licensed under a different section of G.L. c. 112.² The judge allowed Commerce's motion for partial summary judgment and denied the plaintiff's motion for partial summary judgment. The plaintiff appealed.

The Appellate Division of the District Court reversed and ordered judgment in favor of the plaintiff in the amount of $4,300 plus interest and costs. Commerce transferred the case to the Superior Court for a jury trial. The plaintiff and Commerce filed cross motions for partial summary judgment on the two counts against Commerce. A Superior Court judge allowed the plaintiff's motion, denied Commerce's motion, and ordered Commerce to pay the plaintiff $10,755.97, which included attorney's fees and costs. Commerce appealed.

Discussion. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), citing Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). Here, we owe no deference to the Superior Court judge's decision because it is a ruling of law and involves no credibility or evidentiary determinations. Doe v. Superintendent of Schs. of Stoughton, 437 Mass. 1, 5 n. 6, 767 N.E.2d 1054 (2002).

General Laws c. 90, § 34A, requires an insurer to pay PIP benefits for "reasonable expenses incurred ... for necessary medical ... services." Moreover, injured claimants are required to cooperate with the insurers by submitting to IMEs, which assist insurers in determining the amounts due. G.L. c. 90, § 34M, third par.³

General Laws c. 90, § 34M, fourth par., states, in relevant part:

"Personal injury protection benefits and benefits due from an insurer assigned shall be due and payable as loss accrues, upon receipt of reasonable proof of the fact and amount of expenses and loss incurred provided that upon notification of disability from a licensed physician, the insurer shall commence medical payments within ten days or give written notice of its intent not to make such payments, specifying reasons for said nonpayment, but an insurer may agree to a lump sum discharging all future liability for such benefits on its own behalf and on behalf of the insured. With respect to such benefits, and to medical coverage contained in [G.L. c. 175, § 113C], no insurer shall refuse to pay a bill for medical services submitted by a practitioner registered or licensed under the provisions of chapter one hundred and twelve, if such refusal is based solely on a medical review of the bill or of the medical services underlying the bill, which review was requested or conducted by the insurer, unless the insurer has submitted for medical review, such bill or claim to at least one practitioner registered or licensed under the same section of [G.L. c. 112] as the practitioner who submitted the bill for medical services . . ." (emphasis added).⁴

Relying on the language of § 34M, fourth. par., Commerce contends that the same profession requirement only applies "when a refusal to pay a bill for medical service `is based solely on a medical review of the bill or of the medical services underlying the bill.'" We agree.

A general principle of statutory interpretation is that "every word in a statute should be given meaning," Matter of a Civil Investigative Demand Addressed to Yankee Milk, Inc., 372 Mass. 353, 358, 362 N.E.2d 207 (1977), and no word is considered superfluous. See Casa Loma, Inc. v. Alcoholic Beverages Control Comm'n, 377 Mass. 231, 234, 385 N.E.2d 976 (1979), and cases cited. Here, the word "solely" limits the application of the same profession requirement to circumstances where insurers challenge bills solely on the basis of a "medical review of the bill or the medical services underlying the bill." G.L. c. 90, § 34M. A medical review is a "submission of bills and medical records to a practitioner without a physical examination of the PIP claimant" (emphasis added), Galena Chiropractic Office, Inc. v. Amica Mut. Ins. Co., 2001 Mass. App.Div. 200, No. 9731, 2001 WL 1169851 (Sept. 24, 2001), to determine if the charges are reasonable and the treatment is necessary. See G.L. c. 90, § 34A (supra at 195). In contrast, a "physical examination" involves a claimant undergoing a medical examination by a physician selected by the insurer. G.L. c. 90, § 34M, third par. Because Commerce's refusal to pay is based on an IME rather than a medical review of the bill or the medical services underlying the bill, we conclude that the plain language of the statute makes the same profession requirement inapplicable.

The plaintiff argues that when the third and fourth paragraphs of G.L. c. 90, § 34M, are construed together, the "third paragraph simply grants the authority to an insurer to have a claimant examined by a physician of [its] choice," while the "fourth paragraph expounds upon and explains the authority granted." We disagree. "[W]hen the Legislature has employed specific language in one part of a statute, but not in another part which deals with the same topic, the earlier language should not be implied where it is not present." Leary v. Contributory Retirement Appeal Bd., 421 Mass. 344, 348, 657 N.E.2d 224 (1995), quoting Fontaine v. Ebtec Corp., 415 Mass. 309, 321, 613 N.E.2d 881 (1993). Here, where the Legislature used the term "physical examinations" in G.L. c. 90, § 34M, third par., and the term "medical review" in G.L. c. 90, § 34M, fourth par., we should not extend the meaning of medical review to include a physical examination. Moreover, the plaintiff's reliance on Miller v. AMICA Mut. Ins. Co., 1998 Mass.App.Div. 245, No. 9521, 1998 WL 799150 (Nov. 11, 1998), to support his argument that a "medical review" encompasses an IME or physical examination of a PIP claimant is misplaced. Although the court stated that "an IME constitutes a medical...