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SJC-11584
FLOR ORTIZ1 vs. EXAMWORKS, INC.2
Suffolk. November 3, 2014. - March 3, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Insurance, Motor vehicle personal injury protection benefits.
Motor Vehicle, Insurance. Doctor, License to practice
medicine. Statute, Construction. Privacy. Consumer
Protection Act, Unfair or deceptive act. Practice, Civil,
Complaint, Motion to dismiss. Words, "Physician."
Civil action commenced in the Superior Court Department on
September 7, 2012.
A motion to dismiss was heard by Thomas P. Billings, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Matthew T. LaMothe (Robert E. Mazow with him) for the
plaintiff.
Mark J. Ventola for the defendant.
Matthew Iverson & Justin A. Brown, for Premier Insurance
Company of Massachusetts, amicus curiae, submitted a brief.
1
On behalf of himself and all others similarly situated.
2
Doing business as Boston Medical Evaluation/Examination,
Inc.
2
David O. Brink, Douglas R. Tillberg, & Melissa C. Buynell,
for Government Employees Insurance Company, amicus curiae,
submitted a brief.
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.
3
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
3
The facts are drawn from the allegations of the complaint
and exhibits attached to the complaint, which we accept as true.
See Lipsitt v. Plaud, 466 Mass. 240, 241 (2013), and cases
cited.
4
Although the complaint does not specify the type of
medical expenses incurred, Examworks's response to Ortiz's G. L.
c. 93A demand letter, attached to the complaint, indicates that
Ortiz suffered injuries to his neck and back and underwent
physical therapy as a result.
5
In relevant part, the notice sent by Examworks, Inc.
(Examworks), stated:
"Examining Physician: Eugene R. Boeglin, Jr., DPT,
OCS
Exam Type: Physical Therapy Medical
Evaluation"
The notice did not define the initials following Boeglin's
name, but there is no disagreement by the parties that the
4
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
initials "DPT" signify "doctor of physical therapy," and the
initials "OCS" signify "orthopedic clinical specialist."
6
Boeglin's report is not in the record before us, and no
information has been provided concerning the substance of
Boeglin's opinion about the nature or extent of Ortiz's
injuries.
7
The demand letter asserted that Examworks's first notice
of examination violated G. L. c. 93A, § 2, in that it deceived
Ortiz by indicating that Boeglin was a "physician." The letter
further claimed that this "deception," coupled with the medical
5
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.
examination of Ortiz, interfered with Ortiz's privacy in
violation of G. L. c. 214, § 1B, and also constituted a
violation of c. 93A, § 2.
6
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 (2001). See Flanagan v. Liberty
Mut. Ins. Co., 383 Mass. 195, 198 (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
8
PIP benefits are to be paid "regardless of fault in the
causation of the accident." Pinnick v. Cleary, 360 Mass. 1, 6
(1971). See G. L. c. 90, § 34A.
7
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 (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
(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 (2008). We determine
a word's "usual and accepted meanings from sources presumably
known to the statute's enactors," such as dictionary
9
Physical therapists are licensed under G. L. c. 112,
§ 23B.
8
definitions. Id. at 478, quoting Commonwealth v. Zone Book,
Inc., 372 Mass. 366, 369 (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 (1999), quoting Board of Educ. v. Assessor of Worcester, 368
Mass. 511, 513 (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
10
See The Oxford English Dictionary, Vol. VII 807 (1978)
(defining "physician" as "[o]ne who practises the healing art,
including medicine and surgery"); Webster's Third New
International Dictionary 1707 (1993) ("physician" is "a person
skilled in the art of healing"; "one duly authorized to treat
disease"; "a doctor of medicine"); The American Heritage
Dictionary of the English Language 1325 (4th ed. 2006) (defining
"physician" as "person licensed to practice medicine; a medical
doctor," as one "who practices general medicine as distinct from
surgery," and as "person who heals or exerts a healing
influence").
9
sustained in automobile accidents." Dominguez, 429 Mass. at
115. 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 (IMEs "assist insurers in determining the amounts due");
Brito v. Liberty Mut. Ins. Co., 44 Mass. App. Ct. 34, 37 (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 inexpensive,
uncomplicated, as well as timely payment of benefits to cover
medical expenses would suffer.
11
See G. L. c. 90, § 34A (defining "Personal injury
protection").
10
Moreover, in at least one respect -- where PIP benefits to
pay for necessary dental services are involved -- requiring IMEs
to be performed solely by licensed medical doctors would render
the statute unworkable. Licensed medical doctors do not have
the professional authority or competence to evaluate dental
services, and would not be able to do so. See Boone, 451 Mass.
at 198. See also Hartunian v. Pilgrim Ins. Co., 86 Mass. App.
Ct. 670, 672 & n.3 (2014). In our view, an interpretation of
"physicians" in § 34M, third par., to mean solely licensed
medical doctors would create an unreasonable result that the
Legislature did not intend. See Attorney Gen. v. School Comm.
of Essex, 387 Mass. 326, 336 (1982) ("We assume the Legislature
intended to act reasonably").12,13
12
Although practice does not dictate the answer to
questions of statutory interpretation, it appears that insurers
often if not routinely have required injured claimants to
undergo an IME with a practitioner who is not a licensed
physician. See Barron Chiropractic & Rehabilitation, P.C. v.
Norfolk & Dedham Group, 469 Mass. 800, 801-802 (2014) (insurer
required claimant to undergo IME conducted by licensed
chiropractor); Hartunian v. Pilgrim Ins. Co., 86 Mass. App. Ct.
670, 673 n.5 (2014) (citing with approval IME conducted in
Barron). See also Miller v. Amica Mut. Ins. Co., 1998 Mass.
App. Div. 245 (1998) (IME conducted by chiropractor); Olympic
Physical Therapy v. ELCO Admin. Servs., 2010 Mass. App. Div. 171
(2010) (IME conducted by physical therapist).
13
The parties in this case focus on the meaning of
"physicians" in the third paragraph of G. L. c. 90, § 34M
(§ 34M), but we note that the word "physician" also is used in
the statute's fourth paragraph. The first sentence of § 34M,
fourth par., provides: "Personal injury protection benefits
. . . shall be due and payable as loss accrues, upon receipt of
reasonable proof of the fact and amount of expenses and loss
11
Ortiz argues that the language of § 34M and this court's
decision in Boone support his argument. He points to the fact
that in § 34M, fourth par., the Legislature provided
specifically that before an insurer could refuse to pay a bill
for which PIP benefits were sought based only on a medical
review of the bill or the medical services "underlying the
bill," the insurer was obligated to have the record review
conducted by a licensed practitioner holding the same type of
professional license as the practitioner whose bill was in
dispute; this obligation is referred to in Boone as "the same
profession requirement."14 Boone, 451 Mass. at 195-196 & n.4.
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 . . . ." We conclude the statutory purpose of
making available efficient, timely, and relatively inexpensive
medical, dental, and related services is best served if
"physician" in the fourth paragraph of § 34M is, like
"physicians" in the third paragraph, interpreted to include not
only medical doctors licensed under G. L. c. 112, § 2, but other
licensed health care practitioners as well, including physical
therapists. See Knight v. Trust Ins. Co., 1998 Mass. App. Div.
184 (1998) (adopting broad definition of "physician" in § 34M,
fourth par., to include range of licensed health care providers,
and rejecting insurer's claim that term refers only to medical
doctors licensed under G. L. c. 112, § 2: under narrow reading
of "physician," "a dentist, oral surgeon or other c. 112
practitioner who provided necessary medical treatment to an
insured injured in an automobile accident would never be
entitled to PIP payments unless the practitioner, or the
insured, took the additional step and incurred the extra expense
of obtaining and filing a disability certificate from a
physician licensed under c. 112, § 2[,] prior to submitting any
PIP bill or claim to the insurer").
14
Section 34M, fourth par., provides in relevant part:
12
The thrust of Ortiz's argument is that, by embracing the same
profession requirement in the record review of bills or services
and rejecting it in the context of IMEs, the Legislature
intended to restrict those who may conduct IMEs to medical
doctors, regardless of the specialty of the practitioner
treating the injured claimant, and that Boone supports this
reading of the statute.
We disagree with both components of the argument. We begin
with Boone. In that case, a chiropractor treated the plaintiff,
who had been injured in an automobile accident, for
approximately nine months, and the chiropractor's bills were
paid on behalf of the plaintiff by the defendant insurer as PIP
benefits. Id. at 193. Thereafter, at the insurer's behest, an
orthopedic surgeon performed an IME on the plaintiff and
determined that the plaintiff did not require continued medical
treatment. Id. at 193-194. The insurer terminated further PIP
benefits relating to chiropractic services as a result. Id. at
194. The question raised in the case concerned the meaning and
"With respect to [PIP] benefits, . . . no insurer shall
refuse to pay a bill for medical services submitted by a
practitioner registered or licensed under [G. L. c. 112],
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."
13
scope of the same profession requirement in § 34M, fourth par.
Id. at 193, 195-196. Based on the language of the statute as
well as pertinent legislative history, the court concluded that
the same profession requirement, which the fourth paragraph made
applicable when an insurer seeks to terminate the payment of PIP
benefits based "solely" on a medical record review, should not
be read into the IME provisions of the third paragraph of § 34M.
See id. at 196-199.15 But in reaching this result, the court's
focus was not on the fact that the practitioner who performed
the IME was a medical doctor. In other words, although it was
relevant that, as an orthopedic surgeon, the doctor performing
the IME was presumably qualified to assess the need for
continued chiropractic treatment, see id. at 198, the doctor's
status as a person licensed to practice medicine was not the
issue. Rather, the only question was whether an insurer
permissibly could refuse to pay a bill based on an IME performed
by a health care practitioner who was not licensed in the "same
profession" as the practitioner whose bill was in dispute. See
id. at 193, 196 & n.4. No question about the meaning of
15
Accordingly, the defendant insurer was entitled to refuse
to pay PIP benefits based on an IME conducted by a practitioner
licensed in a different specialty than the treating
practitioner. See Boone v. Commerce Ins. Co., 451 Mass. 192,
193 (2008).
14
"physicians" appearing in § 34M, third par., was raised, and the
court did not discuss the word.16
We turn to Ortiz's related point that if the Legislature
had intended IMEs to be conducted by licensed nonphysicians, it
could have required injured claimants to submit to IMEs
conducted by a "licensed" or "registered" "practitioner" in the
third paragraph of § 34M, just as it used the term
"practitioner" in delineating the same profession requirement in
the fourth paragraph of § 34M. Because such a reading would
interfere substantially with the purposes of the no-fault
automobile insurance program and the provision of PIP benefits
in particular, we decline to interpret those language
differences as meaning the Legislature intended "physicians" in
the third paragraph to restrict the performance of all IMEs to
licensed medical doctors. "In so large a legislative enterprise
[as the no-fault automobile insurance scheme], there are likely
to be casual overstatements and understatements, half-answers,
and gaps in the statutory provisions," and it is the role of the
courts to "interweave the statute with decisions answering the
difficulties and composing, as far as feasible and reasonable,
16
Ortiz suggests there is language in Boone indicating that
only a medical doctor may conduct an IME. See Boone, 451 Mass.
at 196, 197 n.6. We do not read these references as indicating
that the court was opining in any way on the question whether
the term "physicians" in § 34M, third par., refers only to
licensed medical doctors. This question simply was not raised
by the case.
15
an harmonious structure faithful to the basic designs and
purposes of the Legislature." Mailhot v. Travelers Ins. Co.,
375 Mass. 342, 345 (1978).17
In sum, we conclude that the word "physicians" as it
appears in § 34M, third par., encompasses not only medical
doctors licensed under G. L. c. 112, § 2, but also other
appropriate licensed or registered health care practitioners,
including physical therapists licensed under G. L. c. 112,
§ 23B.
2. Disposition of motion to dismiss. We review de novo
the judge's dismissal of Ortiz's complaint under Mass. R. Civ.
P. 12 (b) (6). Curtis v. Herb Chambers 1-95, Inc., 458 Mass.
674, 676 (2011). The question is whether the complaint's
factual allegations are "'enough to raise a right to relief
above the speculative level' . . . . What is required at the
17
Ortiz also contends, in accordance with the judge's
reasoning, that as other statutes demonstrate, if the
Legislature had intended the term "physicians" to include
certain nonphysician practitioners, it would have said so
explicitly. He points to a statute in which the Legislature
specifically has indicated that the term "physician" includes
other practitioners. See G. L. c. 233, § 79G (defining
"physician" to include "chiropodists, chiropractors,
optometrists, osteopaths, physical therapists, podiatrists,
[and] psychologists"). Certainly, we "may turn to similar
statutes to construe the meaning of words" (quotation and
citation omitted). Commonwealth v. Jean-Pierre, 65 Mass. App.
Ct. 162, 164 (2005). Regardless of the manner in which the word
"physicians" is defined elsewhere in the General Laws, however,
the task at hand is to construe the word in light of the intent
and purpose of the Legislature in enacting § 34M, see Baccanti
v. Morton, 434 Mass. 787, 794 (2001); the definition or scope of
the term in other statutes is not dispositive.
16
pleading stage are factual 'allegations plausibly suggesting
(not merely consistent with)' an entitlement to relief."
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008),
quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557
(2007).
a. Claim under G. L. c. 214, § 1B. The complaint alleges
that Examworks's IME notice letters, and the subsequent
examination of Ortiz, interfered with Ortiz's privacy interests
in violation of G. L. c. 214, § 1B. With regard to injury, the
complaint alleges that Ortiz was obliged to sacrifice his
personal time to attend the IME, that Boeglin touched Ortiz
during the IME without legal authorization to do so, and that
Ortiz divulged information to Boeglin regarding his car
accident, his injuries and his personal health information
during the IME.
"To sustain a claim for invasion of privacy [under G. L.
c. 214, § 1B], the invasion must be both unreasonable and
substantial or serious." Nelson v. Salem State College, 446
Mass. 525, 536 (2006). See Schlesinger v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 409 Mass. 514, 517-518 (1991).
The complaint fails to allege an actionable interference with
Ortiz's privacy because § 34M, as we have interpreted it,
authorized Examworks, on behalf of Progressive, to require Ortiz
to undergo an IME conducted by a physical therapist to "assist
17
in determining the amounts due." § 34M, third par. See
Schlesinger, supra at 519, 521 (action not "serious" or
"substantial" interference with privacy if, among other things,
it "had a legitimate business purpose"); Bratt v. International
Bus. Machs. Corp., 392 Mass. 508, 520 (1984) ("legitimate
countervailing business interests . . . may render the
disclosure of personal information reasonable and not actionable
under" § 1B). Because the examination was authorized under
§ 34M, the invasions of privacy associated with its taking place
were "justified." See Schlesinger, supra at 518.
b. Claim under G. L. c. 93A. The complaint alleges that
the IME notice letters that Examworks sent to Ortiz representing
that Boeglin was an "[e]xamining [p]hysician" violated G. L.
c. 93A, §§ 2 and 9, because they "intentionally deceived" Ortiz
and led him to attend an IME conducted by Boeglin who was not,
in fact, a licensed medical doctor, even though § 34M required
that he be such a person to conduct an IME. It further alleges
that Examworks violated G. L. c. 112, § 8A, resulting in an
additional violation of G. L. c. 93A, § 2.18 The complaint
incorporates into the c. 93A claim the injuries alleged in the
18
General Laws c. 112, § 8A, prohibits a person "who is not
registered by the board of registration in medicine as a
physician under" G. L. c. 112, § 2, from using "the title
'physician' . . . in any . . . communication with the public
. . . to indicate or imply in any way that such person offers to
engage or engages in the practice of medicine or in the
provision of health care services to patients within the
[C]ommonwealth."
18
interference with privacy claim -- that Ortiz took personal time
to submit to the IME, divulged personal information during the
examination, and was touched by Boeglin, who did not have the
statutory authority to do so.
Assuming for argument that a claim based on an alleged
violation of § 34M properly may be raised against a company,
like Examworks, that is not itself an insurance company, we
agree with the judge that the complaint does not sufficiently
allege actionable unfair or deceptive conduct on the part of
Examworks. Examworks's IME notice letters on which this claim
depends state that Ortiz had been scheduled to undergo a
"[p]hysical [t]herapy [m]edical [e]valuation," and that the
"[e]xamining [p]hysician" was "Eugene R. Boeglin, Jr., DPT, OCS"
(emphasis added). Ortiz does not claim that Boeglin was not a
licensed doctor of physical therapy or that he was not an
orthopedic clinical specialist. See note 5, supra. The notice
letters, therefore, accurately described Boeglin's
qualifications.19 Cf. Gossels v. Fleet Nat'l Bank, 453 Mass.
366, 373 (2009) (bank did not violate c. 93A by accurately
telling presenter of check that presenter was not required to
indorse check). That he was described as the "[e]xamining
[p]hysician" does not render the notice letters unfair or
19
The letters were sent to both Ortiz and his counsel.
Even if Ortiz did not know what "DPT, OCS" stood for, presumably
his counsel either knew or was in a position to determine.
19
deceptive, as opposed to somewhat confusing. In any event, if,
as appears to be the case, Ortiz's claim is that the notice
letter was actionably deceptive because it led him to believe
that Boeglin was a licensed medical doctor as (he claims) § 34M
required, the claim must fail because § 34M does not require the
IME to be performed by a medical doctor licensed under G. L.
c. 112, § 2.
3. Conclusion. Examworks's motion to dismiss the
complaint for failure to state a claim was properly allowed.
Judgment affirmed.