2017 Mass. App. Div. 9

November 18, 2016 - January 5, 2017

Appellate Division Northern District

Court Below: District Court, Lowell Division

Present: Coven, PJ., Singh & Nestor, JJ.

Elizabeth H. Maims and Francis A. Gaimari for the plaintiff.

Daniel J. Wood for the defendant.

COVEN, P.J. In this appeal, we affirm the entry of summary judgment in favor of Enterprise Rent-A-Car Company of Boston, Inc. ("ERAC"), concluding that the patient of Merrimack Valley Physical Therapy, LLC ("Merrimack") failed to cooperate with ERAC by failing to appear for two scheduled independent medical examinations ("IME") requested by ERAC, pursuant to G.L.c. 90, §34M, [Note 1] and the failure provided a complete defense to PIP payments. [Note 2]

Merrimack's patient, Greg Caraballo ("Caraballo"), while an occupant in a rented motor vehicle self-insured by ERAC under a bond pursuant to G.L.c. 90, §34A, was in an accident. Caraballo began treatment at Merrimack on February 26, 2015. By letter dated April 22, 2015, ELCO Administrative Services ("ELCO"), ERAC's third-party administrator, received a notice of representation from the attorney representing Caraballo. A PIP application, signed by Caraballo, was submitted on May 4, 2015. On May 13, 2015, ELCO received records and bills from Merrimack for the service date of May 4, 2015, in which it was indicated that Caraballo should receive further treatment for the next four weeks at the interval of once per week. ELCO requested that Exam Works, Inc. schedule an IME. A request was made in writing with a scheduled IME for June 9, 2015. Caraballo's counsel informed ERAC that his client had completed treatment and requested the cancellation of the IME. Caraballo failed to appear, and ExamWorks, Inc., on June 11, 2015, again requested that Caraballo appear for an IME, scheduling the exam for June 30, 2015. It was again requested by counsel that

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the IME be canceled because treatment had concluded. Caraballo failed to appear, and ERAC denied Merrimack's claim for PIP benefits on the basis of Caraballo's noncooperation.

"Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). The PIP statute specifically provides that the injured person making the claim "shall submit to physical examinations by physicians selected by the insurer ... and ... [n]oncooperation of an injured party shall be a defense to the insurer in any suit for benefits authorized by this section." G.L.c. 90, §34M.

The Appeals Court has twice stated that where there is a "wilful and unexcused refusal" by an insured to undertake an examination under oath, there is an exception to the general rule that the insurer must show prejudice from the insured's failure to fulfill an obligation to the insurance company before it may decline to provide coverage under an automobile insurance policy. See Lorenzo-Martinez v. Safety Ins. Co., 58 Mass. App. Ct. 359, 363 (2003) (uninsured motorist coverage); Boffoli v. Premier Ins. Co., 71 Mass. App. Ct. 212, 216 (2008) (PIP coverage). The Court has not yet ruled on the application in the context of an IME. See Barron Chiropractic & Rehabilitation, P.C. v. Enterprise Rent-A-Car Co. of Boston, Inc., 2015 Mass. App. Div. 111, 113 (motorist's failure to submit to request for IME amounted to noncooperation that was complete defense for rental car company).

In any event, even if the wilful and unexcused exception is inapplicable (present in this case), we disagree with Merrimack's argument that it was unreasonable (or at least a jury question) to request an IME because of the termination of treatment. The argument is premised upon the assertion that, as in this case, "an IME ... can yield, at best, the conclusion that the treating practitioner himself had reached - that the patient was 'pain free with all mobility' and needed no further treatment" As acknowledged at oral argument, whether an injury at all occurred or the severity of the injury itself may be revealed through a timely requested IME. It is in the denial of this opportunity that prejudice manifests itself.

Summary judgment for ERAC is affirmed.

So ordered.


[Note 1] "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." Ortiz v. Examworks, Inc., 470 Mass. 784, 787 (2015), quoting Fascione v. CNA Ins. Cos., 435 Mass. 88, 94 (2001).

[Note 2] The term PIP or "personal injury protection" is defined as "provisions of a motor vehicle liability ... bond 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.