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According to a recent report released by the Transport Research & Innovation Portal (TRIP), Massachusetts’ highways are some of the busiest and most congested in the nation. The Commonwealth’s highways have the tenth highest rate of vehicle travel per lane per mile and are ranked the sixth most congested in the country. Massachusetts’ ranking will come as no surprise to anyone driving through Middlesex County or Essex County or anywhere in the North Shore during rush hour.

commerce-acts-books-477966-mWith the high number of vehicles on the roads and severe congestion also come a high number of auto-accidents. Fortunately for those injured in a car accident in Massachusetts, the Commonwealth is a no-fault insurance state. As discussed in a prior blog about the types of Damages and Compensation available to someone injured in an auto-accident, no-fault insurance benefits, also known as Personal Injury Protection (PIP), allow an injured party to seek payment for certain economic damages from their own insurance company. If the injured person was a passenger, they must seek PIP benefits from the insurance company for the driver of the car they were in at the time of the auto-accident.

Massachusetts’ no-fault insurance requirements are contained in M.G.L. c. 90, §34M. As the name suggests, no-fault insurance benefits are available to an injured party regardless of liability. In Massachusetts, PIP Benefits cover the first $8,000.00 for costs of medical expenses, a portion of lost wages, and certain replacement services necessary due to injury from the auto-accident. There are certain requirements that an injured person must comply with to receive PIP benefits. For example, the injured person must report whether or not they have private health insurance to their auto-insurance company. If an injured person claiming PIP Benefits has private health insurance, PIP only covers the first $2,000.00 of the injured person’s medical expenses. The remaining $6,000.00 of PIP Benefits may still cover a portion of lost wages, replacement services and out-of-pocket costs to the injured party for medical care.

Pursuant to the no-fault insurance statute, a PIP claimant also has a duty to cooperate with the auto-insurance company’s investigation. Most auto-insurance policies contain such a “cooperation clause”. The duty to cooperate includes “submit[ting] to physical examinations by physicians selected by the insurer as often as may be reasonably required…to assist in determining the amounts due.” Such an examination is known as an Independent Medical Examination (IME). However, don’t let the name fool you. IMEs are conducted by doctors chosen and paid by the auto-insurance company. Reports from IMEs are routinely used as the basis for an auto-insurance company’s decisions on coverage. But what are the injured claimant’s rights?

In  Amica Mutual Insurance Company v. Olmo, the Massachusetts Superior Court recognized a PIP claimant’s right to have her attorney present at an IME and also to record the IME. In Olmo, the defendant applied for PIP benefits for injuries she sustained in an auto-accident. The defendant’s auto-insurance policy provided that she “must cooperate…in investigation, settlement and defense of any claim…Failure to cooperate…may result in the denial of the claim.” Pursuant to the cooperation clause in the auto-policy and the PIP Statute, the plaintiff auto-insurance company scheduled an IME with a physician chosen by the plaintiff. The defendant’s attorney notified the plaintiff that he would be sending a representative from his office to record the IME. The plaintiff’s selected physician would not allow an attorney to be present for the IME or permit recording. Due to the physician’s restrictions, the defendant did not attend the scheduled IME or a subsequently scheduled IME.

The plaintiff found that the defendant’s failure to attend the IMEs was in violation of the cooperation clause and refused her claim for PIP benefits. The court in Olmo disagreed and found “that the defendant’s request to have an attorney present or to create an audio/visual record of the examination is reasonable.” The court held that the denial of the claim for PIP benefits based on the defendant’s refusal to attend the IMEs was improper.

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