Article - April 25, 2008 - Massachusetts Lawyers Weekly

IMEs not subject to 'same profession requirement'
Chiropractic PIP benefits denied based on exam by orthopedic surgeon

By Eric T. Berkman

An insurance company could terminate a plaintiff's personal injury protection benefits for chiropractic treatment based on an independent medical examination by an orthopedic surgeon, the Supreme Judicial Court has ruled.

The plaintiff — who had been injured in a car crash caused by a policyholder of the defendant insurance company — argued that under the "same profession requirement" in G.L.c. 90, Sect. 34M, the insurer's determination to cease paying PIP benefits had to be made by a doctor licensed under the same specialty as the treating or billing physician.

But the SJC disagreed, reversing a Superior Court judgment for the plaintiff.

"Relying on the language of 34M ... the insurer 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,"'" wrote Justice Roderick L. Ireland for the court. "We agree."

Because the insurer's refusal to pay "was 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," Ireland continued.

The 11-page decision is Boone v. Commerce Insurance Co., Lawyers Weekly No. 10-079-08.

Cost relief for insurers

Defense counsel Nelson G. Apjohn, of Nutter, McClennen & Fish in Boston, said that, as a result of the SJC's decision, "an insurance company does not have to use multiple practitioners to assess an injury for the purpose of PIP claims."

Apjohn pointed out that although this case involved a single treating practitioner, PIP claimants frequently obtain treatment from multiple medical practitioners in various specialties. Had the decision gone the other way, he said, insurers in such scenarios would have had to enlist a practitioner from each specialty as part of the review process for determining the necessity of treatment.

The ultimate result of the ruling will be better cost containment for the insurance industry, said David O. Brink, a Quincy attorney who submitted an amicus brief on behalf of Massachusetts insurers Amica Mutual Insurance Co., Safety Insurance Co. and The Hanover Insurance Group.

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