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14-P-8                                              Appeals Court

 BYRON V. HARTUNIAN, M.D., P.C.    vs.   PILGRIM INSURANCE COMPANY.


                             No. 14-P-8.

     Middlesex.        September 9, 2014. - November 24, 2014.

          Present:    Kantrowitz, Grainger, & Hanlon, JJ.


Insurance, Motor vehicle personal injury protection benefits,
     Settlement of claim, Unfair act or practice. Consumer
     Protection Act, Insurance, Unfair or deceptive act. Motor
     Vehicle, Insurance.


     Civil action commenced in the Cambridge Division of the
District Court Department on November 7, 2008.

     The case was heard by Severlin B. Singleton, III, J.


     Joseph R. Ciollo for the defendant.
     Francis A. Gaimari for the plaintiff.


     GRAINGER J.     A $990 dispute, reduced shortly before a bench

trial in the District Court to a claim for $188.10, has resulted

in an award totaling $25,343.53 against Pilgrim Insurance

Company (Pilgrim).1    Pilgrim now appeals from the decision and


     1
       The $188.10, representing interest on the period during
which Hartunian claimed Pilgrim engaged in bad faith delay in
                                                                    2


order of the Appellate Division of the District Court affirming

the District Court judgment in favor of Byron Hartunian, M.D.,

P.C. (Hartunian), on his claim that Pilgrim unfairly delayed

payment for orthopedic treatment rendered by Hartunian to the

claimant under Pilgrim's policy.   We affirm.

     This case arises out of an April 4, 2007, automobile

accident in which a passenger was injured, resulting in her need

for medical treatment.   The automobile in which she was a

passenger was covered by a standard Massachusetts automobile

insurance policy (auto policy) issued by Pilgrim.   A personal

injury protection (PIP) benefits application was received by

Pilgrim approximately ninety days after the accident.     Some

ninety additional days thereafter Pilgrim received treatment

records and bills from Hartunian for five different dates of

treatment.2   Pilgrim initially paid $515 to Hartunian,

constituting payment for the first two treatment dates of May 15

and June 20, 2007.   Thereafter, Pilgrim paid Hartunian an

additional $495 for the remaining three treatment dates of July

19, August 14, and October 2, 2007.   Although these two payments



payment of a claim, was trebled by the trial judge. To this was
added prejudgment interest, attorney's fees and costs in the
District Court, and appellate attorney's fees after Pilgrim's
unsuccessful appeal to the Appellate Division of the District
Court.
     2
       Before the plaintiff's bills were received, an independent
medical exam (IME) was performed by a physical therapist.
                                                                      3


were intentionally $990 less than the total of Hartunian's

billings, Pilgrim did not notify Hartunian or his patient of its

intention not to pay the $990 within ten days of the submission

of the bills.   Pilgrim based its nonpayment on its determination

that the charges exceeded an amount that was reasonable in

comparison to other medical providers in the same geographic

area.

     After approximately twelve months of demanding payment to

no avail, Hartunian commenced suit in the District Court on

November 7, 2008, seeking the unpaid $990 portion of his

billings, as well as damages and costs pursuant to G. L. c. 93A

and G. L. c. 176D.     Faced with suit, Pilgrim then issued a

payment of $990 to Hartunian's counsel and filed a motion for

summary judgment on all counts of the complaint.     The motion was

allowed on those counts relating to breach of contract and

declaratory judgment and denied with respect to the remaining

counts.   After a bench trial, Pilgrim was found liable to

Hartunian for violation of G. L. c. 93A and G. L. c. 176D.

Pilgrim filed a timely notice of appeal to the Appellate

Division, which affirmed the judgment.

     Discussion.     We are unpersuaded by Pilgrim's assertion that

its refusal to make payment cannot be considered an unfair

business practice as a matter of law because it disputed the

obligation in good faith.     This argument ignores the trial
                                                                   4


judge's findings, supported by the record, detailing the breach

of Pilgrim's obligation under G. L. c. 90, § 34M, fourth par.,

to make payment of PIP benefits within ten days or,

alternatively, to notify the submitting physician or the

claimant of its intention not to pay.    Pilgrim also failed to

have the patient examined by a practitioner licensed in the same

medical specialty as Hartunian, an orthopedist, during an

independent medical examination (IME).    Instead, a physical

therapist examined the insured, and Pilgrim denied Hartunian

payment on the basis of that examination, among other reasons.

    Pilgrim asserts that its use of an IME performed on its

behalf by a physical therapist precludes the judge's finding of

bad faith as a matter of law.   Relying on the Supreme Judicial

Court's decision in Boone v. Commerce Ins. Co., 451 Mass. 192

(2008) (Boone), it points to the fact that both physical

therapists and orthopedists are licensed under G. L. c. 112,

arguing that, therefore, reliance on a physical therapist's

opinion regarding the need for continuing treatment by an

orthopedist has been legislatively defined as good faith

reliance.   In Boone, the Supreme Judicial Court held that under

G. L. c. 90, § 34M, third par., an insurer can refuse to pay a

medical bill based on an IME conducted by a physician who need

not necessarily be licensed under the same section of G. L.

c. 112 as the physician submitting the bill.    Boone, supra at
                                                                       5


196.       By contrast, when the insurance company's refusal to pay

is based "solely" on "a medical review of the bill or of the

medical services underlying the bill," the review must be

conducted by a practitioner licensed under the same section of

G. L. c. 112.      See G. L. c. 90, § 34M, fourth par., as inserted

by St. 1989, c. 271.

       While an IME performed by any physician selected by the

insurer may be sufficient to satisfy the requirements of § 34M,

third par., we reject Pilgrim's assertion that Boone, or any

other authority, stands for the proposition that compliance with

§ 34M automatically insulates an insurer from a claim of unfair

settlement practices under c. 93A.      The ability of the reviewing

practitioner to assess the need for further treatment is a

function of training, experience, and, in many cases, specific

area of medical expertise.      Indeed, Boone recognized that not

all practitioners licensed under § 112 could appropriately

render a medical opinion in all other specialties licensed under

§ 112; rather, the court acknowledged that licensees "cannot

lawfully practice outside the scope of their professional

registration." Boone, supra at 198.3      Reliance on a different

specialty raises a factual question of the insurer's good faith


       3
       As an example, Boone states that "[O]rthopedic surgeons
and chiropractors cannot . . . render medical decisions about
dentistry." Boone, supra at 198.
                                                                   6


especially where, as here, the reviewer's area of practice

requires less training and education than that of the submitting

physician, rather than the reverse.4

     The only witness at trial, a PIP claims representative from

Pilgrim who was not the individual who handled the Hartunian

claim, testified that Pilgrim's determination that Hartunian's

billings were unreasonable was also based on a review of those

billings by a computer program.   Neither the specific results of

that review nor any evidence about the program was introduced in

evidence.   In any event, use of a computer program does not

excuse failure to comply with the clear requirements of G. L.

c. 90, § 34M, fourth par.; on the contrary, its use as a

substitute for a practitioner's review of billing statements and

underlying services provides an additional basis for an

inference of Pilgrim's lack of good faith under c. 93A.5

     Accordingly the judge found, with support in the record,

that Pilgrim forced Hartunian to file suit, and that the delay

in payment did not comply with the requirements of § 34M and was


     4
       We note that in Boone, the insurance company relied on an
IME conducted by an orthopedic surgeon to refuse payment to a
chiropractor.
     5
       By contrast, in the case of Barron Chiropractic &
Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800,
801-802 (2014), the insurer appropriately had the IME performed
by a licensed chiropractor where the chiropractic services were
questioned.
                                                                    7


neither reasonable nor in good faith.6   There was no error in

tripling the award of lost interest resulting from the delay, or

in the award of attorney's fees.

     Hartunian may submit a petition for appellate attorney's

fees to this court in the manner prescribed in Fabre v. Walton,

441 Mass. 9, 10-11 (2004), within twenty days of the issuance of

this opinion.   Pilgrim may respond to the petition within twenty

days of said filing.

                                    Decision and order of the
                                      Appellate Division
                                      affirmed.




     6
       As the careful review of the Appellate Division panel
notes, the judge considered Pilgrim's behavior in the context of
G. L. c. 93A, § 11, noting that Pilgrim's actions mirrored those
prohibited by G. L. c. 176D. The judge did not rule, contrary
to Pilgrim's assertion, that a violation of G. L. c. 176D was
per se a violation of c. 93A, § 11.
