Opinion
16-P-1239
05-26-2017
DUPILKA FAMILY CHIROPRACTIC v. MET LIFE AUTO & HOME.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this case we address whether certain chiropractic treatments provided by the plaintiff were or would be "compensated, paid or indemnified" by a health insurance policy, such that they would not qualify for payment by the defendant automobile insurer as personal injury protection (PIP) benefits pursuant to G. L. c. 90, § 34A. Following a trial in the District Court, the judge concluded that the relevant treatments were not and would not be compensated, paid, or indemnified by the insured's health insurance policy. We discern no error in this conclusion and affirm the decision and order of the Appellate Division upholding the judge's award of PIP benefits and attorney's fees and costs to the plaintiff.
The relevant provision of G. L. c. 90, § 34A, as amended through St. 1988, c. 273, § 16, provides:
"Notwithstanding the foregoing, personal injury protection provisions shall not provide for payment of more than two thousand dollars of expenses incurred within two years from the date of accident for medical, surgical, X-ray and dental services, including prosthetic devices and necessary ambulance, hospital, professional nursing and funeral services if, and to the extent that, such expenses have been or will be compensated, paid or indemnified pursuant to any policy of health, sickness or disability insurance or any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental or other health care services" (emphasis supplied).
Background. On October 8, 2010, the insured was injured in an automobile accident. At the time of the accident, the insured owned a standard Massachusetts automobile insurance policy written by defendant Met Life Auto & Home (MetLife) and a health insurance policy written by Harvard Pilgrim Healthcare (HPHC). Between October 13, 2010, and January 24, 2011, the insured was treated by practitioners of the plaintiff DuPilka Family Chiropractic (DuPilka) thirty-six times. For each visit, DuPilka billed for multiple treatments, including $30 for each hot and cold pack treatment. There is no dispute that the treatments were medically necessary.
Pursuant to G. L. c. 90A, § 34A, MetLife paid the first $2,000 of the insured's medical expenses. Thereafter, MetLife directed DuPilka to submit all treatment bills to HPHC for payment. HPHC made partial payment to DuPilka, but denied reimbursement for all thirty-six hot and cold pack treatments. HPHC's payment policy expressly excluded hot and cold pack treatments from reimbursement. DuPilka did not contest HPHC's decision.
Under the Commonwealth's no-fault automobile insurance law, G. L. c. 90, §§ 34A -34R, the automobile insurer, or PIP carrier, is responsible for the first $2,000 in medical expenses related to an accident. See Creswell v. Medical West Community Health Plan, Inc., 419 Mass. 327, 330 (1995). Medical costs in excess of $2,000 must be submitted to the injured parties' health insurer for reimbursement. See ibid. If a medical expense is not "compensated, paid or indemnified" by the health insurer, the expense may be submitted to the PIP carrier and up to $6,000 in additional PIP benefits may be paid. See Shah v. Liberty Mut. Ins. Co., 56 Mass. App. Ct. 903, 904 (2002).
DuPilka then submitted an invoice to MetLife for $2,550 in unpaid claims, including all thirty-six hot and cold pack treatments, along with copies of HPHC's explanation of benefits forms. MetLife paid DuPilka $1,770, which included payment for ten of the hot and cold pack treatments, but denied payment of $780, representing twenty-six other hot and cold pack treatments. MetLife stated that the twenty-six treatments had "already been considered by the health carrier and included in the allowance of another service."
After MetLife denied payment, DuPilka brought this small claims action against MetLife to recover $780 in PIP benefits, the cost of the disputed claims for hot and cold pack treatments. The case was transferred to the District Court and tried without a jury. In a comprehensive written decision, the judge concluded that MetLife was liable to DuPilka for $780 in PIP benefits. The judge also awarded DuPilka $24,131.71 in attorney's fees and costs pursuant to G. L. c. 90, § 34M. The judgment was affirmed by the Appellate Division, which also awarded $9,352.65 in appellate attorney's fees and costs. This appeal followed.
Discussion. We review the judge's factual findings for clear error. Robert & Ardis James Foundation v. Meyers, 474 Mass. 181, 186 (2016). Questions of law we examine de novo. See Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 634 (2013) (interpretation of insurance contracts reviewed de novo); Ortiz v. Examworks, Inc., 470 Mass. 784, 788 (2015) (statutory interpretation reviewed de novo).
1. PIP benefits. It is well established that services not paid for by a health insurer are not entitled to reimbursement from PIP benefits if the "health insurer would have covered the medical services had the claimant sought treatment in accordance with his health insurer's plan." Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 112-113 (1999). We turn then to the question whether the hot and cold pack treatments were services covered by the insured's health insurance policy. Here, the insured's health insurance policy with HPHC provided coverage for "[c]are within the scope of standard chiropractic practice." Similarly, HPHC's payment policy in its provider manual stated that HPHC reimburses "[s]upportive treatment modalities within the scope of standard chiropractic practice."
MetLife argues that the insured's hot and cold pack treatments were covered services because they were within the scope of standard chiropractic practice. However, the record is silent regarding what constitutes standard chiropractic care. The only evidence related to coverage of hot and cold pack treatments was the text of HPHC's payment policies, which specifically excluded hot and cold pack treatments from reimbursable chiropractic services.
For the first time on appeal, MetLife relies on the Code of Massachusetts Regulations in support of its argument that hot and cold pack treatments are within the scope of standard chiropractic care. See 233 Code Mass. Regs. §§ 4.01(1)(c)(2), 4.02(1) (2005). These regulations provide that "thermal modalities" are among the "supportive procedures and therapies" that licensed chiropractors may perform. We interpret these regulations to define permitted chiropractic care, not necessarily standard chiropractic care.
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After considering the language of HPHC's health insurance policy and its payment policy, the judge concluded that "the unpaid charges for hot and cold packs are not reimbursable under the contract and the policies adopted thereunder.... HP[HC] did not violate any of the terms of its coverage of [the insured] in denying payment for the hot and cold pack treatments." Thus, the judge made an implicit factual finding that hot and cold pack treatments were not within the scope of standard chiropractic care and therefore not covered services within the insured's health insurance policy with HPHC. Based on the record before us, we cannot conclude that this finding was clearly erroneous. Nor do we discern error in the judge's resulting legal conclusion that hot and cold pack treatments were not and would not be compensated, paid or indemnified by the insured's health insurance policy within the meaning of G. L. c. 90, § 34A.
MetLife also argues that the use of a particular payment code on HPHC's explanation of benefits form is dispositive regarding the reason payment was denied and DuPilka's eligibility for PIP payments. We disagree. On its explanation of benefits forms sent to DuPilka, HPHC referenced payment code "48" in denying payment for the hot and cold pack treatments. The explanation associated with this payment code was "deny—payment included in the allowance of another service." However, as the fact finder, the judge was entitled to consider all of the evidence in determining the reason HPHC denied payment to DuPilka. Although there was evidence that the insured received other chiropractic treatments such as electronic stimulation and chiropractic manipulation on the same dates as the hot and cold pack treatments, those other treatments were billed separately. Thus, there was evidentiary support for the judge's finding that there was "no evidence that the hot and cold packs were included in any of the other services rendered." Based on the totality of the evidence, the judge was warranted in finding that the reason HPHC denied payment for the hot and cold pack treatments was not because payment had already been included in the allowance of another service, but because the hot and cold packs were not reimbursable services.
To the extent that we do not address the defendant's other arguments, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
2. Attorney's fees. Pursuant to G. L. c. 90, § 34M, as amended by St. 1972, c. 319, "[i]f the unpaid party recovers a judgment for any amount due and payable by the insurer, the court shall assess against the insurer ... costs and reasonable attorney's fees." At MetLife's request, the judge allowed additional discovery on DuPilka's request for attorney's fees and then held an evidentiary hearing. Following the hearing, the judge issued a second written decision in which he carefully considered the hourly rate and time spent by DuPilka's attorney. The judge reduced the time reasonably spent litigating the case by approximately thirty hours. In the end, the judge awarded attorney's fees and costs of $24,131.71, significantly less than the $38,561.71 requested. On appeal, MetLife argues that the award is excessive in light of DuPilka's recovery of $780 in PIP benefits. In rejecting that argument, the judge observed that much of the time expended was the result of MetLife's own contentious litigation strategy in which it showed little sense of proportion. Based on the record before us, the judge acted well within his discretion in his award of attorney's fees. See McLaughlin v. American States Ins. Co., 90 Mass. App. Ct. 22, 33 (2016).
Conclusion. The decision and order of the Appellate Division is affirmed. DuPilka has requested reasonable attorney's fees and costs related to this appeal, on two bases. First, DuPilka argues the appeal was frivolous. We disagree and deny the request for additional fees on that basis. However, having prevailed, DuPilka is entitled to recover its fees and costs pursuant to G. L. c. 90, § 34M. DuPilka may submit an application for fees and costs, with supporting documentation, within fourteen days of the date of the rescript. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). MetLife will be afforded fourteen days thereafter to respond.
So ordered.
Affirmed.