Ortiz v. Examworks, Inc.

• Decision Date: 03 March 2015
• Docket Number: SJC–11584.
• Citation: 470 Mass. 784,26 N.E.3d 165
• Parties: Flor ORTIZ v. EXAMWORKS, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 784

26 N.E.3d 165

Flor ORTIZ¹

v.EXAMWORKS, INC.²

SJC–11584.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Nov. 3, 2014.

Decided March 3, 2015.

Matthew T. LaMothe (Robert E. Mazow with him), Salem, for the plaintiff.

Mark J. Ventola, Boston, for the defendant.

Matthew Iverson & Justin A. Brown, Boston, for Premier Insurance Company of Massachusetts, amicus curiae, submitted a brief.

David O. Brink, Braintree, Douglas R. Tillberg, Boston, & Melissa C. Buynell, for Government Employees Insurance Company, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

BOTSFORD

, J.

The third paragraph of G.L. c. 90, § 34M

(§ 34M ), the “personal injury protection” (PIP) statute, provides in part that an injured person claiming PIP benefits “shall submit to physical examinations by physicians selected by the insurer as often as may be reasonably required” in order “to assist in determining the amounts due” (emphasis added). The threshold question in this case is the meaning of the word “physicians” in this provision. More particularly, the question is whether the word “physicians” refers solely to medical doctors licensed under G.L. c. 112, § 2, or whether the term also includes additional types of licensed health care practitioners. We interpret the statute to intend the broader definition of the word because it is the one most consonant with the statutory purpose. Adopting this interpretation, we affirm the order of a Superior Court judge dismissing the plaintiff's complaint pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), but for somewhat different reasons from those that the judge provided.

Facts.³ In June of 2011, the plaintiff, Flor Ortiz, was injured in an automobile accident in Massachusetts while riding in a car that Progressive Insurance Company (Progressive) insured. Following the accident, Ortiz notified Progressive that he sought PIP benefits available under the insurance policy to pay for medical expenses that resulted from the accident.⁴ Progressive then engaged the defendant, Examworks, Inc. (Examworks), to arrange an independent medical examination (IME) of Ortiz. To this end, Examworks separately notified Ortiz and his lawyer in writing that Ortiz was scheduled to undergo a “Physical Therapy Medical Evaluation” on August 25, 2011, to be conducted by “Eugene R. Boeglin, Jr., DPT, OCS,” whom the notification characterized as the “Examining Physician.”⁵ Ortiz did not attend the August 25 appointment; Examworks then sent Ortiz and his lawyer a second

notice regarding the medical examination, which was rescheduled for September 13, 2011. Like the first notice letter, the second notice letter indicated that the scheduled examination was a “Physical Therapy Medical Evaluation,” to be conducted by “Examining Physician” Eugene R. Boeglin, Jr., DPT, OCS.

Boeglin was a licensed physical therapist, but not a licensed medical doctor under the Commonwealth's physician licensing statute, G.L. c. 112, § 2

. Ortiz attended the September 13 examination conducted by Boeglin, who thereafter prepared a report of the IME that indicated that he took Ortiz's history, physically examined Ortiz, and reviewed Ortiz's medical records. Boeglin's report included his opinion of the extent of Ortiz's injuries.⁶

Procedural background. On June 13, 2012, Ortiz sent a demand letter to Examworks alleging multiple violations of G.L. c. 93A, § 2

.⁷ Examworks timely responded in a letter dated July 10, 2012. Soon thereafter, Ortiz filed this action in the Superior Court on behalf of himself and similarly situated persons. The putative class consists of those injured in an automobile accident who sought PIP benefits, received a notice from Examworks of a scheduled IME to be conducted by a “physician” who was not actually a licensed medical doctor, and then attended an IME conducted by that person. The complaint alleges violations of G.L. c. 112, § 8A, G.L. c. 93A; §§ 2 and 9 ; and G.L. c. 214, § 1B.

It seeks declaratory relief, equitable relief, and damages.

Examworks moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12(b)(6)

, for failure to state a claim on which relief could be granted. After a hearing, a judge in the Superior Court allowed Examworks's motion. The judge agreed with Ortiz that

the term “physicians,” as used in the third sentence of § 34M

, third par., is limited to licensed medical doctors. The judge allowed the motion to dismiss, however, on the ground that Ortiz did not sufficiently allege a claim of invasion of privacy, and also failed to allege an injury resulting from Examworks's alleged unfair or deceptive practice as needed to sustain his claim under G.L. c. 93A. We transferred Ortiz's appeal to this court on our own motion.

Statutory framework. Section 34M

is a “critical part” of the Commonwealth's no-fault automobile insurance law, enacted to “reduce the amount of motor vehicle tort litigation, control the costs of automobile insurance, and ensure prompt payment of claimants' medical and out-of-pocket expenses.” Fascione v. CNA Ins. Cos., 435 Mass. 88, 94, 754 N.E.2d 662 (2001). See Flanagan v. Liberty Mut. Ins. Co., 383 Mass. 195, 198, 417 N.E.2d 1216 (1981). Section 34M, first par., requires that all motor vehicle liability policies in Massachusetts provide PIP benefits. The term “personal injury protection” is defined as “provisions of a motor vehicle liability policy ... which provide for payment to the named insured,” or to any passenger of the insured's car, “of all reasonable expenses incurred within two years from the date of accident for necessary medical, surgical, x-ray, and dental services ... as a result of bodily injury” caused by the accident, limited to $8,000 “on account of injury to ... any one person.” G.L. c. 90, § 34A.⁸

When an injured person files a claim for PIP benefits, § 34M

, third par., directs that the person “submit to physical examinations by physicians selected by the insurer as often as may be reasonably required and shall do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due” (emphasis added). The physical examinations referred to are IMEs. See Boone v. Commerce Ins. Co., 451 Mass. 192, 195 n. 3, 884 N.E.2d 483 (2008). PIP benefits are due “upon receipt of reasonable proof of the fact and amount of expenses and loss incurred.” § 34M, fourth par. If benefits are due and payable and not paid within thirty days, any “unpaid party” is entitled to bring an action for payment in the District Court, the action is to be heard on an expedited basis, and if the unpaid party prevails, the party is entitled to recover costs and attorney's fees. Id.

Discussion. 1. Meaning of “physicians.” The judge, as indicated, ruled that the term “physicians” in § 34M

, third par., refers

only to medical doctors licensed under G.L. c. 112, § 2

,⁹ an interpretation that Ortiz also advances. We consider this question of statutory interpretation de novo. Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481, 852 N.E.2d 1061 (2006).

The term “physicians” is not defined in § 34M

. Accordingly, we give the term its “usual and accepted” meaning, so long as it is “consistent with the statutory purpose.” Seideman v. Newton, 452 Mass. 472, 477–478, 895 N.E.2d 439 (2008)

. We determine a word's “usual and accepted meanings from sources presumably known to the statute's enactors,” such as dictionary definitions. Id. at 478, 895 N.E.2d 439, quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977). The term “physicians” appeared in § 34M as originally enacted in 1970. See St. 1970, c. 670, § 4. The term “physician” was defined at that time as a “person licensed to practice medicine; medical doctor”, and as “[a]ny person who heals or exerts a healing influence.” The American Heritage Dictionary of the English Language 989 (1969). This meaning has remained largely the same in the years since the enactment of § 34M.¹⁰ The term, therefore, includes medical doctors and, more generally, those who engage in the healing arts. We consider which of these common meanings of the term “physician” most appropriately suits the intent and purpose of § 34M. See Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115, 706 N.E.2d 647 (1999), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333 N.E.2d 450 (1975).

A primary objective of the no-fault automobile insurance statutory scheme was, and is, to “provide an inexpensive and uncomplicated procedure for obtaining compensation for injuries sustained in automobile accidents.” Dominguez, 429 Mass. at 115, 706 N.E.2d 647

. In addition, as the provisions of § 34M, fourth par., make obvious, speed in securing the payment of PIP benefits associated with treating such injuries is of great importance: the benefits are due as expenses are incurred, and if not paid within thirty days after they become due and payable, the claimant who remains unpaid

is entitled to bring suit to recover them; the litigation is to be put on a fast track. At the same time, PIP benefits are payable for necessary medical and dental services related to a motor vehicle accident generally—the statute does not limit the benefits to certain types of medical assistance, services, or procedures¹¹ —and in this regard, an insurer is specifically entitled under § 34M

, third par., to require that a claimant undergo IMEs in order for the insurer to determine what benefits are properly due. See Boone, 451 Mass. at 195, 884 N.E.2d 483 (IMEs “assist insurers in determining the amounts due”); Brito v. Liberty Mut. Ins. Co., 44 Mass.App.Ct. 34, 37, 687 N.E.2d 1270 (1997) (insurer that “has reason to doubt its liability” may require injured claimant to undergo IME). If every IME were required to be performed by a licensed medical doctor, it is obvious that achievement of the no-fault statutory goals of...