SJC Ruling on PIP Statute Provides Needed Clarity

This article originally appeared in the March 19, 2015 issue of Massachusetts Lawyers Weekly. To see the online version of the article, click here.


The Supreme Judicial Court has once again weighed in on the state’s personal injury protection statute, this time addressing independent medical examinations, or IMEs, required of parties injured in auto accidents.

In the recent case of Ortiz v. ExamWorks, the SJC held that IMEs may be conducted by health care professionals other than medical doctors. While the ruling may seem to simply endorse the longstanding insurance industry practice of using health care professionals other than MDs, the practice has recently been subject to a number of challenges, many brought as class action claims.

In the ExamWorks case, plaintiff Flor Ortiz alleged that defendant ExamWorks had violated the PIP statute by using a physical therapist, rather than a medical doctor, to conduct an IME when Ortiz had been receiving physical therapy after a car accident. The case was filed as a class action, in which Ortiz was attempting to represent others who had sustained injuries in motor vehicle accidents and undergone IMEs by physical therapists.

The court rejected Ortiz’s claim and handed down a decision that used a common-sense approach to interpreting an imperfectly drafted statute.

There has been a significant uptick in litigation based on the PIP statute, with plaintiffs’ counsel looking for new ways to find fault with the manner in which insurers have traditionally handled these claims. ExamWorks should provide insurers with much needed clarity in this area, and will certainly help in the defense of a number of pending class actions brought against insurers.

Provision in controversy

The PIP statute — G.L.c. 90, §34M — was enacted in an effort to reduce costs resulting from unnecessary or even fraudulent medical treatments. One tool the statute provides to insurers is the ability to require an injured person to submit to an IME that is intended to confirm the necessity of treatment.

The statutory provision in question in the ExamWorks case states that the “injured person shall 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.” G.L.c. 90, §34M, par. 3 (emphasis added).

That section also provides insurers a defense to paying benefits in the event that a claimant refuses to cooperate with an IME.

At issue in the ExamWorks case was the meaning of the term “physicians” in the IME context, and whether the term should be interpreted in a manner that is broad enough to include allied health professionals other than medical doctors.

Just two sentences after the IME language, the statute also requires insurers to provide PIP benefits and mandates that such benefits are due “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 … .” §34M, par 4.

Thus, the term “physician” appears twice in the statute, but in different contexts. Any party who has not received PIP benefits that are due and payable is entitled to file an action in District Court and to be heard on an expedited basis. If the unpaid party prevails, he or she is entitled to recover costs and attorneys’ fees.

The attorneys’ fees and costs provision results in there being a high volume of low-dollar cases filed, in which the counsel fees at stake often far exceed the amount in dispute.

Later in the PIP statute, the topic of medical bill reviews is addressed. An insurer is prohibited from refusing 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 … unless the insurer has submitted … such bill or claim to at least one practitioner registered or licensed under the same section of chapter one hundred and twelve as the practitioner who submitted the bill for medical services.”

Thus, in addressing the topic of bill reviews in the PIP statute, the Legislature introduced the term “practitioner” when speaking about medical treatment and bills.

The underlying action

After sustaining injuries in a motor vehicle accident in June 2011, Ortiz applied for and received PIP benefits through his insurer, in part to pay for the physical therapy treatment that he was receiving.

The insurer then engaged ExamWorks to arrange for an IME to determine the necessity of Ortiz’s continuing physical therapy. Ortiz was notified by letter that he was scheduled for a “Physical Therapy Medical Evaluation” by a doctor of physical therapy, or DPT.

Eventually, Ortiz appeared for the IME, which was conducted by the DPT. At no time did Ortiz object to the IME, and the DPT’s credentials were disclosed to him and to his counsel in advance and in writing on multiple occasions.

Sometime after undergoing the IME, Ortiz claimed that ExamWorks did not comply with the PIP statute because the term “physician” means medical doctor only, and he was examined by a DPT, rather than a medical doctor.

Specifically, he claimed that the term “physician” must be limited to medical doctors licensed under G.L.c. 112, §2. He alleged that the defendant’s non-compliance violated his right to privacy pursuant to G.L.c. 214, §1B and was an unfair and deceptive practice that violated G.L.c. 93A.

ExamWorks moved to dismiss the complaint arguing, among other things, that it had complied with the PIP statute and that Ortiz’s claims failed because ExamWorks did not engage in any unfair or deceptive conduct and because Ortiz sustained no harm.

Regarding the PIP statute, ExamWorks argued that the term “physician” should include dentists, doctors of physical therapy, chiropractors and other allied health care providers, based on the statutory purpose of addressing PIP claims in an efficient and inexpensive manner.

The trial judge granted ExamWorks’ motion but agreed with the plaintiff’s interpretation of the term “physician” in the PIP statute, ruling that “physician” should be limited to medical doctors licensed under G.L.c. 112, §2.

Concluding, however, that there had been no invasion of privacy or Chapter 93A violation, the Superior Court judge dismissed the case.

In determining that the plaintiff suffered no compensable damages under 93A or any invasion of privacy under G.L.c. 214, §1B, the judge observed that “Mr. Ortiz’s only complaint is that the examiner did not have the right initials after his name.”

Ortiz appealed the dismissal, and the SJC took the case on its own initiative. The SJC then solicited amicus briefs, which were submitted by several insurers and an insurance trade association.

Welcome certainty in PIP claims

Defining “physician” within the PIP statute has significant consequences for both claimants and insurers. In paragraphs 3 and 4 of the statute, the Legislature used three different terms in referring to health care providers: physician, licensed physician and practitioner. Considering the intent of the statute and the three distinct processes to which the three terms apply, ExamWorks argued that an unreasonably narrow interpretation of the term “physician” in the IME context would be unjustified.

Only two sentences after the IME language, the statute also requires insurers to pay personal injury protection benefits “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.”

The irony in ExamWorks, as Judge Thomas P. Billings noted in his order granting the motion to dismiss, is that if Ortiz’s interpretation had been accepted, an insurer could refuse to pay, under the above-quoted language, any PIP benefits unless and until a medical doctor also provides a “notification of disability,” a result that counsel for claimants likely would not desire.

Adding the requirement of having a medical doctor provide such a certification prior to payment of bills from chiropractors, physical therapists, dentists, oral surgeons and other “non-MDs” who treat patients after automobile accidents would add time, expense and inconvenience to a system intended to promote efficiency and bring speed to the claims-handling process.

Applying that logic, regardless of the nature of the claimant’s injury or the type of treatment received, the insurer could refuse to pay PIP benefits if the notification of disability is submitted by any practitioner other than a medical doctor – which is not the current practice in the processing of PIP claims.

Thus, although dental work is explicitly included as a PIP benefit, a dentist or oral surgeon who provides services to a claimant for injuries sustained in an automobile accident would not be paid until a medical doctor submits a notice of disability.

The term “physician” is not defined in the statute and, until ExamWorks, neither the Appeals Court nor the SJC had addressed the issue. In the absence of a statutory definition, the court turned to the “usual and accepted” meaning of “physician,” observing that the term could mean either a licensed medical doctor or could fall under the much broader definition of “[a]ny person who heals or exerts a healing influence.”

The court then turned to the purpose of the no-fault automobile insurance statutory scheme, and concluded that, in light of the range of potential PIP benefits, “[i]f every IME were required to be performed by a licensed medical doctor, it is obvious that achievement of the no-fault statutory goals of inexpensive, uncomplicated, as well as timely payment of benefits to cover medical expenses would suffer.”

The court also recognized, from a common-sense perspective, that Ortiz’s interpretation of “physician” was far too narrow because, in the case of dental work, “[l]icensed medical doctors do not have the professional authority or competence to evaluate dental services, and would not be able to do so.”

Insurers commonly ask for IMEs to be conducted by a health care provider in the same specialty as the one providing treatment, such as dentists, oral surgeons and physical therapists, for example. The SJC ruling will allow that common-sense practice to continue.

ExamWorks addresses an issue that comes up in a significant amount of PIP cases, so it is significant to insurers’ day-to-day decision-making about the type of provider who will conduct an IME.

Mark Ventola is co-chairman of the labor and employment law practice group at Sheehan, Phinney, Bass & Green in Boston. He represented the defendant in Ortiz v. ExamWorks.