Ortiz v. Examworks, Inc.

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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.