(dissenting). The portion of G. L. c. 152, § 11A (2), as appearing in St. 1991, c. 398, § 30, with which the court dealt in Murphy v. Commissioner of the Dep’t of Indus. Accidents, 415 Mass. 218 (1993) (Murphy I), provided: “When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to section ten A, the parties shall agree upon an impartial medical examiner from the roster to examine the employee and submit such choice to the administrative judge assigned to the case within ten calendar days of filing the appeal, or said administrative judge shall appoint such examiner from the roster. The insurer or any claimant represented by counsel who files such appeal shall also submit a fee equal to the average weekly wage in the commonwealth at the time of the appeal to defray the cost of the medical examination under this section . . . .” As the court recognizes, ante at 166, the holding of Murphy I, supra at *172233, was that “the fee provisions of § 11A violate the equal protection clause.”
Surely, if the fee provisions violate the equal protection clause, the second sentence of § 11A (2) in its entirety does so also because the second sentence contains no more nor less than the fee provisions. The fee provisions are the second sentence. Thus, the court’s holding in Murphy I made clear that no part of the second sentence was severable from other parts or salvageable. The court’s holding was that the entire second sentence (fee provisions), not just bits and pieces of it, violates the equal protection clause and must be struck, and the court remanded the case to the Superior Court for a declaration to that effect (“a declaratory judgment consistent with this opinion”). Id. at 234. Today, however, the court in effect endorses a new statute, crafted in the Superior Court, which provides for the first time that “[t]he insurer or any claimant [whether represented by counsel or not] who files [an appeal of a conference order] shall also submit a fee to defray the cost of the medical examination under [§ 11A (2)].” I believe that, in doing so, the court has not only failed to be true to its holding and order in Murphy I but also has exceeded its constitutional authority by effectively legislating.
The second sentence of G. L. c. 152, § 11A (2), as enacted by the Legislature (“The insurer or any claimant represented by counsel. . . shall also submit a fee . . . .”), provided by clear implication that a claimant who is not represented by counsel is not required to submit a fee to defray the cost of an impartial medical examination. The second sentence as reworked by the Superior Court judge and approved by this court, however, provides that a claimant who is not represented by counsel must submit such a fee. The Legislature did not say that. The Legislature said exactly the opposite. Neither Commonwealth v. Baird, 355 Mass. 746 (1969), cert, denied, 396 U.S. 1029 (1970), nor any other case of which I am aware, stands for the proposition that a court may lawfully strike words from a statute and salvage others where the result, as here, is to convert a *173negative provision (fee not required of claimants unrepresented by counsel) into a positive one (fee required of claimants unrepresented by counsel).
The court states that “[t]he Superior Court judge considered the two options put before her by the parties: the defendants’ option, that is, striking particular words from the fee provision, so that it now applies to all claimants and specifies no amount for the fee; and the plaintiff’s option, that is, declaring the entire impartial physician section invalid. She chose the former, reasoning that the Legislature’s strong commitment to the impartial physician section of § 11A indicated that the Legislature would not have intended the entire section to fail.” Ante at 168. The court is correct in stating that the judge in the Superior Court considered two options put before her by the parties and that she chose the defendants’ option. However, the court ignores, as did the judge, a third option, also put before her by the plaintiff, which was to sever and strike from § 11A (2) the entire sec- and sentence containing the fee provisions and leave the rest of § 11A (2) intact. That option was precisely in accord with the holding and remand order in Murphy I.
I would reverse the order in the Superior Court deleting the words “represented by counsel” and “equal to the average weekly wage in the commonwealth at the time of the appeal” for the sole reason that it is inconsistent with the order of remand in Murphy I. In addition, I would reverse the Superior Court order because the second sentence of § 11A (2) cannot lawfully be rewritten by the courts to read, “The insurer or any claimant who files such appeal shall also submit a fee to defray the cost of the medical examination under this section . . . .” Ante at 167.
I agree with the court that it is sometimes appropriate for a court to declare one or more parts of a statute unconstitu- • tional and declare the remainder constitutional and valid. However, it is never permissible for a court to do so when, as here, the meaning of the remainder is thereby changed. Therefore, it would be permissible and appropriate in this case to declare the first sentence of § 11A (2) (the impartial *174physician provisions) valid despite the striking of the fee provisions. The meaning of the first sentence is not altered by deletion of the second sentence, and the inference is surely justified that the Legislature would have enacted the impartial physician examination provisions without the unconstitutional fee provisions. See Mayor of Boston v. Treasurer & Receiver Gen., 384 Mass. 718, 725 (1981), citing Pedlosky v. Massachusetts Inst. of Technology, 352 Mass. 127, 129 (1967). The court’s deletion of only part of the second sentence, however, which converts a provision that effectively says that an unrepresented workers’ compensation claimant may appeal a conference order without payment of a fee into a provision that requires such a payment, constitutes impermissible legislation on the court’s part. The court’s order changes the meaning of the fee provisions which the court permits to remain. In addition, we cannot know whether, if the Legislature had been able to predict our decision in Murphy I, it would have omitted fee provisions from § 11A (2) entirely, or would have provided that fees must be paid by insurers only, or would have chosen the route taken by the judge in the Superior Court. In my view, the action taken by the court today not only is inconsistent with its earlier order in Murphy I, but it also amounts to an improper usurpation of the legislative function. Accordingly I dissent.