J-A18045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NATIONWIDE MUTUAL INSURANCE              :   IN THE SUPERIOR COURT OF
COMPANY                                  :        PENNSYLVANIA
                                         :
                                         :
             v.                          :
                                         :
                                         :
GENE MOORE                               :
                                         :   No. 329 WDA 2017
                   Appellant             :

                   Appeal from the Order February 3, 2017
              In the Court of Common Pleas of Jefferson County
                    Civil Division at No(s): 1118-2016 CD


BEFORE: BOWES, LAZARUS and OTT, JJ.

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 06, 2017

      Gene Moore appeals from the order entered on February 3, 2017, in

the Court of Common Pleas of Jefferson County, compelling him to submit to

an independent medical examination (IME) at the request of Nationwide

Mutual Insurance Company (Nationwide).           In this timely appeal, Moore

argues the trial court erred in compelling the IME pursuant to language in

Nationwide’s policy of insurance because he was not a party to that contract.

Additionally, Moore argues the policy provision relied upon to compel the

IME is void against public policy, as it does not comply with the statutory

requirement of “good cause shown” as required by 75 Pa.C.S. § 1796. After

a thorough review of the submissions by the parties, including an amicus

brief filed on behalf of Moore by the Pennsylvania Association for Justice, the

certified record, and relevant law, we affirm.
J-A18045-17



       The underlying facts of this matter are simply related. 1 On March 23,

2016, Amy Shiock was the owner and operator of a motor vehicle that was

involved in an accident with Gene Moore, who was riding a bicycle at the

time. Shiock was properly insured by a policy issued by Nationwide Mutual

Insurance Company. Moore was not otherwise covered by a policy of motor

vehicle insurance.        Moore submitted his subsequent medical bills to

Nationwide, which paid medical expenses in the total amount of $90,580.84.

Pursuant to Nationwide’s petition to compel IME, these bills were paid as

first party benefits, pursuant to 75 Pa.C.S. § 1713(4).   After two months’

treatment at Keystone Physical Therapy, Moore was discharged from medical

care as having reached a treatment plateau.       Approximately one month

later, Moore reported to the Pottstown Memorial Medical Center complaining

of back pain. Pursuant to the trial court opinion, Moore told the medical

providers his pain was precipitated by moving furniture.         Moore then

submitted his medical bills to Nationwide as being related to the motor

vehicle accident.

       Subsequently, Nationwide requested an IME, to which Moore declined

to submit. Nationwide filed its petition to compel IME, and based its demand

on the policy which requires injured persons seeking benefits to submit to


____________________________________________


1
  All facts are taken from Nationwide’s petition to compel IME and exhibits
attached thereto.




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medical examinations as often as “reasonably requested”2.              Nationwide

attached three exhibits to the petition: Exhibit 1 was the final progress note

from Moore’s rehabilitation treatment from the automobile accident, Exhibit

2 was documentation from the emergency room visit following Moore

reinjuring his back, and Exhibit 3 was the relevant page from the Nationwide

insurance policy.      The trial court reviewed the document and determined

that based upon the allegations in the petition and the attached exhibits,

Nationwide had demonstrated good cause and granted the petition.

Although the trial court refers to Fleming v. CNA Insurance Companies,

597 A.2d 1206 (Pa. Super. 1991)3 in the last sentence of its Pa.R.A.P.

1925(a) decision, it is clear from reading the decision that the trial court

based its ruling on the petition and exhibits appended thereto, and statutory

interpretation of 75 Pa.C.S. § 1796.

        Our standard of review for an order compelling or denying an

independent medical examination is as follows:

        A trial court is authorized to order an independent medical
        examination of a plaintiff upon a showing of good cause for such
        an exam. Whether good cause exists is a determination
        committed to the sound discretion of the trial court, whose
        decision may not be reversed in the absence of an error of law or
        abuse of discretion.

____________________________________________


2
 See Petition to Compel Independent Medical Examination, 12/19/2016 at
¶11.
3
    The relevance of this case will be discussed later in this decision.



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McGratton v. Burke, 674 A.2d 1095, 1097 (Pa. Super. 1996) (citations

omitted).

      Instantly, the trial court reviewed Nationwide’s petition and issued an

order compelling Moore to appear for an IME based upon statutory

interpretation of 75 Pa.C.S. § 1796, and upon good cause shown, as facially

demonstrated in Nationwide’s petition. Specifically, the trial court stated:

      The relevant statutory provision does not differentiate between
      contractual and statutory beneficiaries.       It says only that
      “[w]henever the mental or physical condition of a person is
      material to any claim for medial, income loss or catastrophic loss
      benefits, a court [,upon good cause shown,] may order the
      person to submit to a mental or physical examination by a
      physician.[”] 75 Pa.C.S.A. § 1796 (emphasis added). It thus
      speaks of all claimants as a single class, not of different classes
      of claimants that must be treated differently. [Moore], having
      made a demand that [Nationwide] compensate him for his June
      19, 2016 visit to the Pottstown Memorial Medical Center, is part
      of that single class. Accordingly, § 1796 applies to him.

      As for good cause, the same appears from the face of the
      petition itself. [Moore] was struck by Amy Shiock’s vehicle on
      March 23, 2016, and over the course of the next two months,
      [Nationwide] paid his medical expenses in the total amount of
      $90,580.84.       He was then discharged from Keystone
      rehabilitation on May 18, 2016 after reaching a plateau, and an
      entire month passed before he went to Pottstown after
      experiencing back pain. His pain, by his own report to the
      emergency room staff, was precipitated by him lifting furniture.
      Though it had been a month since his discharge from Keystone,
      and though back pain is not an uncommon side effect of lifting
      furniture, however, [Moore] apparently decided that his back
      pain was attributable to his prior accident. He thus submitted
      his bill to [Nationwide] for additional reimbursement, and
      [Nationwide], questioning the causal relationship between the
      March 2016 accident and [Moore’s] latest complaint, requested
      that he submit to an independent medical examination. Under
      the circumstances, it certainly had good cause to do so, not only


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J-A18045-17


      because of the discharge and subsequent delay, but also
      because the nature high injury rate [sic] associated with lifting
      furniture, particularly when done improperly, evidences that
      [Nationwide’s] request is both legitimate and reasonable.

Trial Court Opinion, 3/13/2017, at 1-2.

      We find no fault with this statutory interpretation, or in the

determination of good cause shown.

      Despite the fact that the trial court based its ruling on section 1796

and “good cause” found on the face of Nationwide’s petition, Moore’s appeal

claims the trial court appeared to rely on Fleming v. CNA Insurance

Companies, 597 A.2d 1206 (Pa. Super. 1991), and Nationwide’s policy,

both of which purportedly allow Nationwide to demand an IME without good

cause shown. Specifically, Moore takes issue with the last paragraph of the

trial court’s opinion, which states:

      Because § 1796 does not differentiate between contractual and
      statutory beneficiaries and thus [does] not exclude [Moore] from
      Fleming’s holding, and because [Nationwide] has established
      good cause for requesting an independent medical evaluation,
      therefore, the Court’s February 3, 2017 order should be
      affirmed.

Trial Court Opinion at 2.

      Moore claims:

      Nationwide and the trial court rely exclusively upon Fleming v.
      [CNA] Insurance Companies, 409 Pa. Super. 285, 597 A.2d
      1206, 1209 (Pa. Super. 1991) for the proposition that
      [Nationwide] does not have to establish “good cause” in order to
      obtain an order compelling Mr. Moore’s IME as their policy
      contains provisions requiring Mr. Moore to submit to an IME.

Moore’s Brief at 8.



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J-A18045-17



       Contrary to Moore’s assertion, the trial court did NOT rely exclusively

on Fleming or on the policy language found in the Nationwide policy.4

Rather, as discussed above, the trial court found good cause shown based

upon 75 Pa.C.S. § 1796.

       Because the trial court’s decision did not rest upon an interpretation of

the Nationwide policy, we need not examine Moore’s claim that the

Nationwide policy violates public policy.        However, contained within that

argument is Moore’s claim that Nationwide’s request for an IME has not

demonstrated how such an examination would substantially aid Nationwide’s

evaluation of the claim. We recognize that for a brief time case law added

the requirement that an IME must also “substantially aid the insurer in

evaluating the claim” in addition to the statutory requirement of “good cause

shown.”    State Farm         Mutual Automobile Insurance Company v.

Zachary, 569 A.2d 365 (Pa. Super. 1990). However, an en banc panel of

our Court, in State Farm Ins. Companies v. Swantner, 594 A.2d 316 (Pa.

____________________________________________


4
  Although the trial court noted that it believed its decision did not conflict
with Fleming, it did not base its decision on Fleming. Additionally, the
specific relevant language of the Nationwide policy is not to be found in the
trial court opinion. Despite claiming the language of the Nationwide policy
conflicts with the requirements of section 1796, Moore has not included the
specific policy language in his brief. For the benefit of this decision, the
relevant clause in the Nationwide policy reads: “Insured persons must
submit to examinations by company-selected physicians as often as the
company reasonably requires.”         See Nationwide Petition to Compel
Independent Medical Examination, Exhibit 3.




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Super. 1991) (en banc) determined that “our self-imposed restrictions”, id.

at 320, were contrary to statutory intent.       Swantner reiterated that the

basis to order an IME is good cause shown.5 We have already determined

the trial court did not err in its finding of good cause shown. Therefore, this

argument is unavailing.

        Accordingly, we affirm the order compelling Moore to appear for an

IME.6

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2017
____________________________________________


5
  In State Farm Insurance Companies v. Hunt, 569 A.2d 365 (Pa. Super.
1990), a panel of our court simply noted that it was “patently clear”, id. at
367, that an IME would substantially aid the insurer’s investigation where
the good cause shown was five months more chiropractic treatment than
had been originally predicted. Here, the good cause evidence is even more
compelling – a lapse in treatment combined with a self-admitted, intervening
incident. Accordingly, if we were required to rule on the issue, that an IME
would substantially aid Nationwide’s evaluation of the claim is implicit in the
trial court’s determination of good cause shown.
6
  The amicus curaie brief filed by the Pennsylvania Association for Justice is
also premised on the position that the trial court based its decision on the
Nationwide policy language and Fleming. The amicus curaie brief also fails
to include the specific policy language at issue. Accordingly, we have no
need to address that brief.



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