Opinion
No. 15–P–1373.
06-30-2016
Robert MARSHALL, v. DEPARTMENT OF INDUSTRIAL ACCIDENTS & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2014, the plaintiff filed a claim for reimbursement for chiropractic services he received in 2012. He claimed that the need for those services was caused by a workplace injury he suffered in 2006. His employer's insurer, defendant Ace American Insurance Co. (Ace American) opposed the claim.
At a conference held pursuant to G.L. c. 152, § 10A, an administrative judge (AJ) of the Department of Industrial Accidents (DIA) denied the claim on the grounds that whether the need for the services was caused by the much earlier injury “will require sworn testimony and the expert opinion of an [i]mpartial [e]xaminer for resolution.” The plaintiff appealed the conference order and requested a hearing pursuant to G.L. c. 152, § 11, with an independent medical examiner (IME). However, the plaintiff did not pay the statutorily required IME fee, despite obtaining extended time to do so. See G.L. c. 152, § 11A(2). Nor did the plaintiff make any claim that payment of the IME fee should be waived on the ground that he was indigent. With the plaintiff not having fulfilled a statutory prerequisite to his appeal, the DIA administratively withdrew his appeal. The plaintiff then purported to appeal the withdrawal of his claim to Superior Court pursuant to G.L. c. 30A, § 14. A Superior Court judge allowed the DIA's motion to dismiss. We affirm.
This is not a case like Ellis v. Commissioner of the Dept. of Industrial Accs., 61 Mass.App.Ct. 902, 903 (2004), where the DIA—incorrectly—had required payment of an IME fee even though the only issue challenged was a nonmedical issue.
The essence of the plaintiff's underlying substantive argument appears to be that even though the AJ determined that an IME was needed to evaluate an issue of medical causation, that issue was not really in dispute, because the employer's insurer had not submitted its own materials countering his claims. Therefore, the reasoning goes, the plaintiff should have been allowed to proceed without paying an IME fee, and his appeal was improperly withdrawn for failure to pay such a fee. This argument is inconsistent with the statutory scheme under which nonindigent claimants are required to pay an IME fee when an AJ has determined that the services of an IME are necessary to address underlying medical issues. The plaintiff's remedy was to pay the fee and pursue adjudication of his claim before the AJ. In the event that the plaintiff did not prevail in such an adjudication, he could pursue a further administrative appeal to the DIA's reviewing board. See Neff v. Commissioner of the Dept. of Industrial Accs., 421 Mass. 70, 74 (1995). If the reviewing board's decision was adverse to him, he could appeal that decision to this court, which has exclusive jurisdiction. See G.L. c. 152, § 12(2). What the plaintiff cannot do is to refuse to follow the statutorily-mandated administrative process. There was no error in the DIA's refusal to entertain the plaintiff's appeal, and hence no error in the Superior Court's judgment in DIA's favor.
To the extent the plaintiff argues that an AJ is precluded as a matter of law from determining that the services of an IME are required anytime the insurer has not submitted its own medical materials, we discern no merit to that argument.
If the plaintiff had prevailed on his claim, he could have sought reimbursement of the IME fee. See G.L. c. 152, § 11A(2).
Judgment affirmed.