Lead
Opinion of the Court by
We accepted the application for a writ of certiorari filed by the plaintiffs-appellees-pe-titioners, a personal injury protection (PIP) claimant, Margret Gillan, and her treating
Although we depart from the ICA’s textual analysis of HRS § 431:10C-308(b), we ultimately arrive at the same conclusion that an actual examination, physical or otherwise, is an essential component of an “independent medical examination” within the meaning of the statute. Thus, the record review performed by the physician retained by GEICO did not constitute an independent medical examination, and, as such, GEICO did not violate the statute when it declined to seek Gillan’s consent before hiring the doctor. We affirm the May 7, 2008 judgment of the ICA accordingly.
I. BACKGROUND
A. Factual Background
On December 15, 2002, Gillan was riding in the passenger seat of a Nissan truck owned and operated by her boyfriend, Frank Rai-ney, when the truck was struck from behind by another vehicle, which caused her to suffer injuries that required medical attention. The truck was covered by an automobile insurance policy issued by GEICO that was in full force and effect at the time of the collision. GEICO does not dispute that, as a passenger of the insured motor vehicle at the time of the collision, Gillan was and is entitled to PIP insurance coverage and benefits under Rainey’s insurance policy and HRS
In deciding whether to deny a PIP claim, GEICO’s in-house staff, which is comprised of bill reviewers, adjusters, and nursing personnel, routinely perform record reviews, including evaluations of the claimant’s medical treatment records. Through these reviews, GEICO assesses whether the benefit claimed has actually been prescribed by a physician, whether the allowed number of visits has been exceeded, whether the statute of limitations has lapsed, whether workers’ compensation provides primary coverage, as well as whether the claimant has presented reasonable proof of the claim for benefits. In some cases, GEICO may request that a physician review records without examining the claimant to determine whether, from the physician’s perspective, the claim is for treatment that was appropriate, reasonable, and necessarily incurred as a result of accidental harm sustained in a motor vehicle accident.
GEICO followed that procedure in response to certain claims Gillan made for PIP benefits. GEICO retained Bruce Hector, M.D., who was a physician licensed by the State of Hawai'i, a fellow of the American Back Society, and a certified independent medical evaluator. The doctor never saw or examined Gillan or consulted with her health care providers, but merely reviewed her medical records to determine whether she required medical treatment and care as a result of the injuries she sustained in the December 15, 2002 collision. In his report dated December 8, 2003, Dr. Hector opined that Gillan did not require medical care and treatment as a result of the collision once she had completed her first six physical therapy sessions. Relying on Dr. Hector’s report, GEICO sent Gillan various denial of claim forms, the first of which was dated March 11, 2004. GEICO maintained that, pursuant to HRS § 431:10C-103.5(a), Gillan was not entitled to benefits for two of her visits with Dr. Keller and for magnetic resonance imaging services, because those services were not appropriate, reasonable, or necessary. GEICO also advised Gillan that, if she wished to contest its denial, she could bring an action in court.
B. Circuit Court Proceedings
The Plaintiffs filed a complaint against GEICO in circuit court on April 15, 2005, alleging that GEICO had hired an independent medical examiner, Dr. Hector, without first seeking Gillan’s consent, in violation of HRS § 431:100-308.5. On September 8, 2005, they moved for partial summary judgment on this claim, arguing, among other things, that, because GEICO had violated the statute, the circuit court should rule that GEICO’s denials of Gillan’s claims for benefits and Dr. Keller’s bills were improper, null, and void. The Plaintiffs observed that, under the statute, an insurer must seek to obtain a PIP claimant’s agreement in selecting an “independent medical examiner.” Relying on a circuit court ruling by the Honorable Bert I. Ayabe in Sadoka v. AIG Hawaii, Civ. No. 04-1-0436-03 (Haw.Cir.Ct. July 25, 2005), the Plaintiffs asserted that Dr. Hector was an independent medical examiner under the plain language of HRS § 431:10C-308.5(b), because he performed a record review and because a record review is part of an independent medical examination. The Plaintiffs also cited the legislative history of HRS § 431:10C-308.5 to support their interpretation of the statute. Finally, they made the preemptive charge that, although the United States District Court for the District of Hawaii and the Insurance Commissioner
The circuit court heard the motion on October 11, 2005. At the hearing, the circuit court expressed its hope “that both the consumer lawyers, as well as the insurance industry, [would] go[ ] back to the legislature because ... clarification would be helpful [with respect to the meaning of the term Independent medical examination’].”
On November 21, 2005, GEICO filed a Hawaii Rules of Civil Procedure (HRCP) Rule 54(b) motion for certification, seeking an order directing the entry of a final judgment in favor of the Plaintiffs and against GEICO based upon the circuit court’s order partially granting the Plaintiff’s motion for partial summary judgment. The Plaintiffs joined GEICO’s motion on November .22, 2005, and the circuit court granted the motion on January 19, 2006. GEICO filed a notice of appeal on February 21, 2006. The circuit court entered its partial judgment on February 27, 2006, and GEICO filed an amended notice of appeal the next day. This court dismissed GEICO’s appeal on May 25, 2006, because the circuit court’s judgment did not contain the requisite language for HRCP Rule 54(b) certification. The circuit court entered an amended order granting GEICO’s motion for certification on June 10, 2006 and an amended partial judgment .on July 17, 2006. On August 2, 2006, GEICO filed a second amended notice of appeal.
C. Appellate Proceedings
In its points of error on appeal, GEICO argued that the circuit court had stretched HRS § 431:10C-308.5(b) beyond its plain meaning by concluding that the statute applied whenever an insurer sought any expert medical opinion to. inform a decision as to whether to make a PIP payment. GEICO also asserted that the circuit court erred in ruling that GEICO had violated HRS § 431:10C-308.5(b) by obtaining and relying upon a record review as a part of its PIP claim review and payment decision without agreement from Gillan regarding the selection of the reviewing doctor. Finally, GEI-CO maintained that the circuit court erred in ruling that GEICO was prohibited at trial from relying on Dr. Hector’s report as a basis for its denial of PIP benefits to’ Gillan for treatment rendered by Dr. Keller. Ami-cus briefs were filed in support of GEICO’s position by the insurance commissioner and by Hawaii Insurers Council.
Adopting the federal district court’s reasoning in Engle, the ICA concluded that GEICO did not violate HRS § 431:10C-308.5(b), because the statute’s “clear” language
II. STANDARDS OF REVIEW
A. Motion For Summary Judgment
This court reviews the circuit court’s grant of summary judgment de novo. Price v. AIG Hawai'i Ins. Co.,
B. Statutory Interpretation
This court generally reviews questions of statutory interpretation de novo, 'Olelo v. Office of Info. Practices,
III. DISCUSSION
The Plaintiffs’ basic argument is that the ICA erred in concluding that GEICO did not violate HRS § 431:10C-308.5(b) in denying her claim for PIP benefits. PIP benefits, “with respect to any accidental harm,” are “all appropriate and reasonable treatment and expenses necessarily incurred as a result of the accidental harm and which are substantially comparable to the requirements for prepaid health care plans.” HRS § 431:10C-103.5(a). In deciding whether to deny a PIP claim, see HRS § 431:10C-304(3)(B) (Supp. 2002),
In this case, GEICO did not seek Gillan’s consent in hiring Dr. Hector to assess the appropriateness of her medical treatment. Dr. Hector looked only to her medical records; he did not actually examine her, physically or otherwise. By its terms, HRS § 431:10C-308.5(b) contemplates that certain activities may be associated with an independent medical examination, including “record reviews, physical examinations, history taking, and reports.” The Plaintiffs maintain that, in light of the statute’s plain language, Dr. Hector’s record review was itself an independent medical examination and that GEI-CO therefore breached its obligation under the statute to seek Gillan’s consent. On the other hand, GEICO, supported by the insurance commissioner and the Hawai'i Insurers Council, asserts that it had no statutory duty to seek Gillan’s agreement in selecting Dr. Hector, because, without an actual “examination,” the doctor’s review of her records did not rise to the level of an “independent medical examination.” The fundamental question
A. The Term “Independent Medical Examination,” As It Appears In HRS § ISl:10C-308.5(b), Is Ambiguous With Respect To Whether An Actual Examination Of The Claimant, Physically Or Otherwise, Is An Essential Aspect Of The “Examination.”
In interpreting the statute, this court’s “ ‘foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.’ ” Colony Surf, Ltd. v. Dir. of the Dep’t of Planning & Permitting,
Because the term is not statutorily defined, this court “ ‘may resort to legal or other well accepted dictionaries as one way to determine [its] ordinary meaning.’ ” Leslie v. Bd. of Appeals of the County of Hawai'i,
On the other hand, certain medical dictionaries suggest that an “examination” involves some form of actual in-person contact. Ta-ber’s Cyclopedic Medical Dictionary defines an “examination” as “[t]he act or process of inspecting the body and its systems to determine
In addition to dictionaries, this court may also consult legal treatises to ascertain the meaning of a term that is not defined by statute. See Allstate Ins. Co. v. Kaneshiro,
Another textual guide that this court has utilized in interpreting statutory terms is common usage. See Bishop Trust Co. v. Burns,
Courts across the country appear to have a similar understanding of the term. See Engle,
Yet, at the same time, other courts have characterized a doctor’s evaluation as an independent medical examination, even where the physician never physically examined the claimant. See Nickel v. Unum Life Ins. Co. of Am., No. 06-10476-BC,
In light of these conflicting interpretations of the term “independent medical examination,” we do not agree with the ICA, the circuit court, the parties, or the amici curiae that the meaning of the term, as it appears in HRS § 431:10C-308.5(b), is “plain” or “clear” with respect to the necessity of an actual examination. See Gillan,
B. Because The Term “Independent Medical Examination” In HRS § U31:10C-308.5(b) Is Ambiguous, This Co'wii Defers To The Insurance Commissioner’s Interpretation, Unless His Interpretation Is Palpably Erroneous.
“In the case of .. ambiguous statutory language, the applicable standard of review
He reviewed one such claim in Weigel, wherein a medical provider asserted that an insurer’s denials were improperly based upon medical records reviews performed by an independent medical examiner who only reviewed the claimants’ medical records and who was not selected by mutual agreement between the insurer and the claimants, in contravention of HRS § 431:10C-308.5(b). ATX-2002-134-P, hearings officer’s findings of fact, conclusions of law, and recommended order (RO) at 2, 4-7. In the hearings officer’s recommendation to the commissioner, he concluded that, although the statute did not define “independent medical examination,” the term necessarily “includes a physical examination, which requires doctor-patient interaction.” Id. at 9. According to the hearings officer, the statute requires that an insurer seek a claimant’s consent in light of the potentially invasive nature of that physical interaction. Id. The insurance commissioner adopted the hearings officer’s recommendation, id., commissioner’s final order (CFO) at 2, specifically ruling that “the conditions placed on the ... selection of a provider of an [independent [mjedical [examination do[] not apply to a medical records reviewer whose activities do not require a medical providers’ license,” id. at 2 n. 1. According to the commissioner, the insurer's “decision to employ a medical professional to provide consultation in support of, or to perform the duties typically undertaken by[,] adjusters and bill reviewers does not subject the [insurer] to compliance with the obligations associated with performing an [¿Independent [m]edical [e]xamination.” Id.
Because the insurance commissioner has been charged with reviewing PIP benefit denials, see HRS §§ 431:2-102(b) and 431:10C-212, and because, in the course of reviewing such denials in Weigel, he specifically ruled that a record review without a physical examination did not qualify as “an independent medical examination” within the meaning of HRS § 431:10C-308.5(b), see ATX-2002-134-P, RO at 9, CFO at 2 n. 1, we believe that his ruling is entitled to deference, unless it is palpably erroneous. See Vail,
The Plaintiffs essentially assert that, in light of the statute’s legislative history, the insurance commissioner’s understanding of the term “independent medical examination” in HRS § 431:10C-308.5(b) is palpably erroneous. An agency’s interpretation of a statute is palpably erroneous when it is inconsistent with the legislative intent underlying the statute. Cf. Treloar,
The Plaintiffs begin their analysis with the legislative history underlying the 1998 amendments to the statute. Prior to those amendments, HRS § 431:10C-308.5(b) provided in relevant part that “[c]harges for independent medical examinations to be conducted by a licensed Hawaii provider, unless the insured consents to an out-of-state provider, shall not exceed the charges permissible under the workers’ compensation schedules for consultation for a complex medical problem.” HRS § 431:10C-308.5(b) (Supp. 1997). The legislature amended this provision by adding the following underscored language: “Charges for independent medical examinations, including record reviews, physical examinations, history taking, and reports, to be conducted by a licensed Hawaii provider unless the insured consents to an out-of-state provider, shall not exceed the charges permissible under the workers’ compensation schedules for consultation for a complex medical problem.” 1998 Haw. Sess. L. Act 275, § 26 at 935 (emphasis in original) (footnote omitted). The legislative history reflects that the amendment was specifically “designed to eliminate abuses and excessive charges associated with independent medical examinations (IMEs)” by “clarif[ying] that the workers’ compensation fee schedule charge allowable for IMEs may not be exceeded by submitting a separate charge for the report or other ancillary procedures incident to the conducting of an IME.” Hse. Conf. Comm. Rep. No. 117, in 1998 House Journal, at 1000; Sen. Conf. Comm. Rep. No. 117, in 1998 Senate Journal, at 794. The amendment also served, more generally, to decrease “automobile insurance rates for [the] driving public.” Hse. Conf. Comm. Rep. No. 117, in 1998 House Journal, at 999; Sen. Conf. Comm. Rep. No. 117, in 1998 Senate Journal, at 793.
In effect, the Plaintiffs argue that interpreting “independent medical examination” to include record reviews without a physical examination would advance the legislature’s goal of limiting insurance costs because, so construed, a record review would be subject to the workers’ compensation fee schedule. See HRS § 431:10C-308.5(b). While it is true that the legislative history reflects that the amendment was aimed at containing the costs of activities associated with independent medical examinations, the committee reports do not suggest that the particular activity of reviewing medical records is, without more, an independent medical examination. See Engle,
Aside from the 1998 amendment to the cost containment provision, the Plaintiffs draw attention to one of the sentences added in 2000, which directed that “[t]he independent medical examiner shall be selected by mutual agreement between insurer and claimant; provided that if no agreement is reached, the selection may be submitted to the commissioner, arbitration or circuit court.” 2000 Haw. Sess. L. Act, 138 § 2 at 270 (emphasis omitted). The committee reports indicate that this provision was intended “to establish a fair selection process that favors selection by agreement.” Sen. Conf. Com. Rep. No. 37, in 2000 Senate Journal, at 742; Hse. Conf. Com. Rep. No. 37, in 2000 House Journal, at 865. The legislature emphasized that “the selection should not be a perfunctory matter” and that “every effort should be made to select a neutral examiner with a balanced approach that favors neither insurer [n]or claimant.” Sen. Conf. Com. Rep. No. 37, in 2000 Senate Journal, at 742; Hse. Conf. Com. Rep. No. 37, in 2000 House Journal, at 865. The legislature further indicated that “[t]hose examiners who have acquired reputations for favoring one side or the other should not be selected” and that “[e]xaminers who are primarily treating doctors who are familiar with community treatment protocols, injury patterns and cultural factors, that do not rely heavily on IME income that may affect bias, are to be favored.” Sen. Conf. Com. Rep. No. 37, in 2000 Senate Journal, at 742; Hse. Conf. Com. Rep. No. 37, in 2000 House Journal, at 865.
The Plaintiffs contend that the term “independent medical examination” should be read to encompass record reviews, in the absence of a patient-contact examination, such that all medical experts who review records must be selected pursuant to the “mutual agreement” provision. See HRS § 431:10C-308.5(b). The Plaintiffs urge that their interpretation would effectuate the legislature’s goal of ensuring that an independent medical examination is indeed “independent.” While the committee reports relating to the 2000 amendments no doubt address what it means to be “independent,” they simply do not speak to the contours of the “examination,” particularly whether an actual examination of the claimant is required or whether a review of the claimant’s records would suffice. See Sen. Conf. Com. Rep. No. 37, in 2000 Senate Journal, at 742; Hse. Conf. Com. Rep. No. 37, in 2000 House Journal, at 865. Simply put, the reports consider who performs the examination, but not how the examination is to be performed. See Sen. Conf. Com. Rep. No. 37, in 2000 Senate Journal, at 742; Hse. Conf. Com. Rep. No. 37, in 2000 House Journal, at 865.
Apart from the “mutual agreement” provision, the Plaintiffs highlight that, in the 2000 amendments, the legislature inserted the condition that “[t]he independent medical examiner shall be of the same specialty as the provider whose treatment is being reviewed, unless otherwise agreed by the insurer and claimant.” 2000 Haw. Sess. L. Act, 138 § 2 at 270 (emphasis omitted). During the floor debates, Representative Ron Menor had this to say about the provision:
Doctors representing the Hawai'i Medical Association who requested [the specialty provision] were concerned about the use of unqualified persons performing IME reviews of their work. I agreed to do so because I felt that the inclusion of this requirement made common sense. For example, it makes sense to require a neurosurgeon IME to review spinal surgery. Moreover, it would not make sense to allow an IME psychiatrist to review the treatment of a broken leg by an orthopedist. In addition, a person performing an IME review of a knee reconstruction by an orthopedic surgeon should have training in orthopedic surgery.
Comment by Representative Menor, in 2000 House Journal, at 710 (emphases added) (quotation marks omitted). Representative
Given as an example, is a case wherein a claimant with foot and spinal injuries, whose treatment records are to be reviewed, has undergone treatment by a podiatrist, physical therapist, chiropractor and orthopedic surgeon. In this example, the question to ask is, does the specialty provision ... mean that you have to require four IMEs with the same specialty to review treatment conducted by the podiatrist, physical therapist, chiropractor and orthopedic surgeon? I believe that if the provision of this bill is narrowly interpreted, then the answer is “yes.”
However, if we acknowledge that there are clinical overlaps, and thus a medical specialist or multi-specialist is knowledgeable about a given clinical problem then the answer is “no”—there is no requirement for four IMEs.
It is for the aforementioned reasons that in the committee report, to clarify the specialty provision, that language is included to insure that IME doctors possess adequate knowledge necessary to properly review the treatment rendered by the treating medical provider.
Comment by Representative Cachola, in 2000 House Journal, at 711 (emphases added) (quotation marks omitted).
The Plaintiffs maintain that the statements by Representatives Menor and Cachola during the floor debates in connection with the specialty provision illustrate that a record review is an independent medical examination, because the representatives repeatedly asserted that an independent medical examination involves a “review” of the claimant’s treatment “records.” Although independent medical examinations often, if not usually, involve record reviews, from our perspective, the representatives’ statements do not address whether a record review is, in and of itself, an independent medical examination. Moreover, “ ‘[s]tray comments by individual legislators, not otherwise supported by statutory language or committee reports, cannot be attributed to the full body that voted for the bill.’ ” Wright v. Home Depot U.S.A., Inc.,
The Plaintiffs also analogize the independent medical examination process to the peer review organization system prescribed in HRS § 431:10C-308.6 (1993), which was repealed in 1998 because it was too expensive and time-consuming. See 1997 Haw. Sess. L. Act 251, §§ 59 and 70 at 551, 553; Hse. Stand. Com. Rep. No. 250, in 1997 House Journal, at 1211. Under the peer review system, if a PIP insurer wanted to dispute the appropriateness of certain treatments or charges, it had to initially request a peer review. See HRS §§ 431:10C-308.6(a) (1993) and 431:10C-308.5(c) and (d) (1993). A peer review was conducted by an organization that was approved by the insurance commissioner. HRS § 431:10C-308.6(b). Additionally, the organization was required to designate an individual who practiced the same specialty as the claimant’s treating health care provider. Id. The Plaintiffs point out that the independent medical examination process is
Beyond citing legislative history, the Plaintiffs attempt to demonstrate legislative intent by invoking the cannon of construction that “ ‘the legislature is presumed not to intend an absurd result.’ ” Colony Surf,
In short, the legislative intent underlying HRS § 431:10C-308.5(b) does not undermine the insurance commissioner’s understanding that an “independent medical examination” requires some type of actual examination. Consequently, we believe that his interpretation is not palpably erroneous and is therefore worthy of deference. See Vail,
D. Because An “Independent Medical Examination” Under HRS § 431:10C-308.5(b) Requires An Actual Examination, Physical Or Otherwise, Dr. Hector’s Record Review Did Not Ccmstitute An Independent Medical Examination, And, Therefore, GEICO Did Not Violate The Statute.
In the present matter, Dr. Hector did not actually examine Gillan, but, instead, limited his evaluation to a review of her medical records. Therefore, Dr. Hector did not perform an independent medical examination on Gillan in evaluating the appropriateness of her treatment from Dr. Keller. Because Dr. Hector did not perform an independent medical examination within the meaning of HRS § 431:10C-308.5(b), it follows that the statute did not require GEICO to seek Gillan’s consent before selecting the doctor. Accordingly, GEICO did not violate the statute when it declined to. seek Gillan’s consent in selecting Dr. Hector to review her records. The ICA was correct in so holding. See Gillan,
IV. CONCLUSION
In light of the foregoing, we affirm the May 7, 2008 judgment of the ICA.
Notes
. HRS § 431:10C-308.5, entitled “Limitation on charges,” provides in relevant part:
(b) The charges and frequency of treatment for services specified in [HRS § ]431:10C-103.5(a), except for emergency services provided within seventy-two hours following a motor vehicle accident resulting in injury, shall not exceed the charges and frequency of treatment permissible under the workers’ compensation supplemental medical fee schedule. Charges for independent medical examinations, including record reviews, physical examinations, history taking, and reports, to be conducted by a licensed Hawaii provider unless the insured consents to an out-of-state provider, shall not exceed charges permissible under the appropriate codes in the workers' compensation supplemental medical fee schedule. The workers’ compensation supplemental medical fee schedule shall not apply to independent medical examinations conducted by out-of-state providers if the charges for the examination are reasonable. The independent medical examiner shall be selected by mutual agreement between the insurer and claimant; provided that if no agreement is reached, the selection may be submitted to the commissioner, arbitration or circuit court. The independent medical examiner shall be of the same specialty as the provider whose treatment is being reviewed, unless otherwise agreed by the insurer and claimant.
The statute was subsequently amended in respects immaterial to the present matter. See 2006 Haw. Sess. L. Act 198, §§ 2 and 4 at 840-41.
. HRS § 431:10C—103.5, entitled "Personal injury benefits; defined; limits," provided in relevant part; "(a) Personal injury protection benefits, with respect to any accidental harm, means all appropriate and reasonable treatment and expenses necessarily incurred as a result of the accidental harm and which are substantially comparable to the requirements for prepaid health care plans.... ” The statute was subsequently amended in respects immaterial to the present matter. See 2004 Haw. Sess. L. Act 56, §§ 1 and 4 at 285-86.
. HRS § 431:10C-3.03, entitled "Right to personal injury protection benefits,” provides in relevant part: "(a) If the accident causing accidental harm occurs in this State, every person insured under this article, and such person's survivors, suffering loss from accidental harm arising out of the operation, maintenance, or use of a motor vehicle, has a right to personal injury protection benefits."
. We endorse the circuit court's aspiration because, as explained infra in section III.A, we believe that HRS § 431:10C-308.5(b) is ambiguous as to whether an "independent medical examination” requires some form of actual examination, physical or otherwise.
. HRS § 431:10C-304(3)(B) sets forth some of the procedures that insurers must follow in denying PIP claims.
. Contrary to the impression expressed in the concurring opinion, we do not cite Engle for the proposition that HRCP Rule 35 and Federal Rules of Civil Procedure Rule 35 are in fact instructive in determining whether a record review alone constitutes an "independent medical examination” under HRS § 431:1-308.5. See concurring opinion at 131,
. The concurrence maintains that Vail, Treloar, Nelson, and Holi are distinguishable from the present matter on the ground that they involved either an appeal from an agency decision interpreting a statute, see Vail,
Were it otherwise, the applicability of the deference principle would, in some cases, depend on a party’s choice of forum. The facts of this case provide an instructive illustration. If the Plaintiffs had elected to initiate this proceeding before the commissioner, see HRS § 431:100-212, instead of the circuit court, see HRS § 431:100-314, then, under the concurrence’s approach, the deference principle would apply to the commissioner's interpretation of HRS § 431:100-308.5. Concurring opinion at 125,
Concurrence Opinion
Concurring Opinion of
I concur in the result reached by the majority,
I.
It has been stated that “it is the function of the courts to interpret the law, and courts are in no way bound by an [administrative] agency’s legal interpretation.” Chavez v. Mountain States Constructors,
When reviewing an agency determination, this court applies standards codified at HRS § 91-14(g) (1993) to the agency decision. Paul’s Elec. Serv., Inc. v. Befitel,
Rather, the issue raised on certiorari is whether the first circuit court (the court) or the Intermediate Court of Appeals (ICA) erred in its interpretation of a statute. It is well established that this is a question of law, to be reviewed de novo under the right/wrong standard. See, e.g., Kimura v. Kamalo,
Thus, “[w]hen construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.” State v. Toyomura,
In construing an ambiguous statute, “the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1)(1985). Moreover, the courts may resort to extrinsic aids in determining the legislative intent. One avenue is the use of legislative history as an interpretive tool.
Id. at 19,
In this case, as discussed infra, there is legislative history readily at hand to clarify any perceived ambiguity in HRS § 431:10C-308.5. Therefore, it is neither appropriate nor necessary to defer to the insurance commissioner’s interpretation of the definition of an IME. See In re Water Use Permit Applications,
Despite our established rules for construing ambiguous statutes, the majority maintains that the insurance commissioner’s interpretation of the definition of an IME in Weigel v. Liberty Mutual Fire Insurance Co., ATX-2002-134-P (Hawai'i Insurance Commissioner’s Final Order Mar. 31, 2005) is “worthy of deference.” Majority opinion at 122,
First, Treloar and Vail involved direct appeals from agency decisions, which, as has already been noted, is not the situation here. See Treloar,
Second, unlike the situation at bar, both Nelson and Holi involved the application of HAR. Arguably, where an agency promulgates a rule, we will accord consideration to its interpretation of its own rules. See, e.g., Holi,
Furthermore, the majority misconstrues the issue of deference to the Hawai'i Civil Rights Commission in Nelson. In that case, this court was concerned with modification of the test for establishing a hostile environment sexual harassment claim [HESH] set forth in this court's earlier decision in Steinberg v. Hoshijo,
Third, in McCully, this court said that the dispositive regulation was not in effect, and there were no interpretations of the statute by federal courts.
Indeed, the majority concedes that unlike this case, Vail, Treloar, Nelson, and Holi “involved either an appeal from an agency decision ..., see Vail,
Contrary to the majority’s position, the factual distinctions between an appeal from an agency decision and an appeal from the trial courts are the salient foundational facts that determine whether deference to an agency applies at all. Cf. Kalani,
By way of seeming justification for its view, the majority opines that deference in this case “reflects a sensitivity to the proper roles of the political and judicial branches insofar as the resolution of ambiguity in a statutory text is often more a question of policy than law.” Majority opinion at 118,
Finally, the majority maintains that choosing not to defer to the insurance commissioner’s interpretation in this ease would result in forum shopping to attain a desired standard of deference. See majority opinion at 123,
Assuming, arguendo, the agency’s application of a statute is entitled to consideration, the overriding rule is that this court is duty-bound to determine whether such application comports with the language of the statute. See State v. Lo,
In short, none of the cases cited by the majority hold that a court should defer to an agency’s interpretation of a statute in the situation we face today. Under our well-established tenets, in construing an ambiguous statute, this court is obligated to review legislative history to determine legislative intent. Sullivan,
The district court in Engle, whose decision the majority relies on, itself examined the legislative history of HRS § 431:10C-308.5(b), determining that such legislative history established that record reviews were not IMEs.
II.
HRS § 431:100-308.5 governs charges for the medical services enumerated in HRS § 431:10C-103.5(a) (2005), which services are deemed to be necessary and appropriate treatment for injuries sustained in a motor vehicle accident. HRS § 431:100-308.5, entitled “Limitation on charges,” provides in pertinent part:
(a) As used in this article, the term “workers’ compensation supplemental medical fee schedule” means the schedule adopted and as may be amended by the director of labor and industrial relations for workers’ compensation cases under chapter 386, establishing fees and frequency of treatment guidelines. References in the workers’ compensation supplemental medical fee schedule to “the employer”, “the director”, and “the industrial injury” shall be respectively construed as references to “the insurer”, “the commissioner”, and “the injury covered by personal injury protection benefits” for purposes of this article.
(b) The charges and frequency of treatment for services specified in section 431:10C-103.5(a), except for emergency services provided within seventy-two hours following a motor vehicle accident resulting in injury, shall not exceed the charges and frequency of treatment permissible under the workers’ compensation supplemental medical fee schedule. Charges for [IMEs], including record reviews, physical examinations, history taking, and 'reports, to be conducted by a licensed Hawaii provider unless the insured consents to an out-of-state provider, shall not exceed the charges permissible under the appropriate codes in the workers’ compensation supplemental medical fee schedule. The workers’ compensation supplemental medical fee schedule shall not apply to [IMEs] conducted by out-of-state providers if the charges for the examination are reasonable. The independent medical examiner shall be selected by mutual agreement between the insurer and claimant; provided that if no agreement is readied, the selection may be submitted to the commissioner; arbitration or circuit court. The independent medical examiner shall be of the same specialty as the provider whose treatment is being reviewed, unless otherwise agreed by the insurer and claimant. ...
(Emphases added.) In sum, the HRS § 431:100-308.5 requirements are that (1) the “charges and frequency of treatment” are governed by the workers’ compensation fee schedule, (2) the examination be conducted “by a licensed Hawaii provider” unless the claimant “consents to an out-of-state provider,” (3) the examiner “be selected by mutual agreement[,]” (4) if the insurer and claimant cannot agree on an examiner, “the selection may be submitted to the commissioner, arbitration, or the circuit court[,]” and (5) the examiner must be of the same specialty as the provider.
The term “IME” is not explicitly defined in the statute. When a term is not statutorily defined, this court “may resort to legal or other well-accepted dictionaries as one way to determine [its] ordinary meaning.” Leslie v. Bd. of Appeals of the County of Hawai'i,
The second Webster’s definition comports with decisions holding that the term “including” connotes an illustrative, rather than exclusionary, list.
[i]f a party chooses to do a records, [sic] review only and not conduct a physical examination, that is [its] choice. However, that does not mean that [it] do[es] not have to meet the requirements of HRS § 431:10C-308.5(b).
To hold otherwise would undermine the “reason and spirit of the law”—to insure a fair process of review for both sides involved by selecting a neutral, unbiased examiner with an adequate amount of knowledge.
Id. (emphasis added).
III.
Because there are too possible interpretations of the term “including,” we must resort to legislative history to determine which one
IV.
In contrast to the district court’s conclusion (1), the term “including” is ambiguous, as set forth above. Thus, under well-established tenets of Hawaii’s case law, resort to legislative history was required. The district court’s conclusion (2) did consider the legislative history of the 1998 amendments, which added the language in controversy here. The district court decided that the legislative intent was to prevent medical examiners conducting physical examinations from inflating costs by “unbundling” the services rendered for billing purposes.
[t]he purpose of the 1998 amendments was to require that charges for an IME include charges for all parts of the IME, not just for the physical examination portion. Thus, the statutory restrictions on IME charges extended to any record review, history taking, or report that was part of the IME. The legislative history does not indicate that the amendment was intended to subject record reviews that are not part of IMEs to IME regulations. To the contrary, the Committee Report distinguishes between IMEs and parts of IMEs such as “the report or other ancillary procedures incident to the conducting of an IME.”
Engle,
The portion of the legislative report quoted above states that the 1998 amendments were designed to prevent examiners from circumventing cost containment measures by “submitting a separate charge for the report or other ancillary procedures incident to the conducting of an IME.” Sen. Conf. Comm. Rep. No. 117, in 1998 Senate Journal, at 794. It appears, then, that the legislature intended that all of the procedures conducted in association with a single IME would be included in a single bill, which would be governed by the workers’ compensation fee schedule. Hence, a record review must be considered a subsidiary part of the IME, not a separate and independent example of an IME. Based on legislative history, the term “including” in HRS § 431:10C-308.5(b), then, must be construed in consonance with the first dictionary definition of that term. See supra. In my view, this is dispositive of the question of whether a record review is an “IME” or not under this particular statute.
V.
A.
Consequently, I respectfully disagree with any extension of other reasoning in Engle because such reasoning may adversely affect the future application of the subject statute. As to its conclusion (3), the district court explained that “[n]umerous court orders ... use TME’ to refer to the ‘Physical and Mental Examination’ procedures set forth in [Hawaii Rules of Civil Procedure (HRCP) Rule]
In response to the foregoing, the majority asserts that it “merely cite[s] the Engle decision as illustrative of how courts have generally employed the term [IME,]” and “do[es] not cite Engle for the proposition that HRCP Rule 35 and [FRCP] Rule 35 are in fact instructive in determining whether a record review alone constitutes an ‘[IME]’ under HRS § 431:10C-308.5.” Majority opinion at 127,
Indeed, following this reasoning in Engle, the majority also rests on “the district eourt[’s] observation] in Engle ... [that] there is in fact a logical distinction between a physical examination and a record review.” Majority opinion at 122,
However, in my view this comparison is inapposite. FRCP Rule 35, entitled “Physical and Mental Examinations,” states that where the physical or mental condition of a party is at issue, the court may order that person to undergo a physical or mental examination for good cause and with proper notice.
Significantly, the legislative history of HRS § 431:10C-308.5(b) is devoid of any reference to those rules. Both iterations of Rule 35 permit one party to hire any medical examiner it desires to examine the other and testify on behalf of the former. Manifestly, such an examiner is not “independent” in the sense mandated by HRS § 431:10C-308.5. The expert’s fees are not limited in any way by the rules because they are not based on an underlying purpose of cost containment. The court orders the examination upon a motion by the parties. The moving party is not required to obtain the consent of the party to be examined as to the identity of the examiner. Thus, it is evident that examinations under the two Rule 35 versions are not comparable to IMEs under HRS § 431:10C-308.5.
B.
As to point (4)(a) of the district court’s analysis, on their faces, the restrictions applicable to an IME would apply only where the schedule governing workers’ compensation applies. Contrary to the district court’s assertion that defining a record review as an IME would prevent insurers from “us[ing] in-house providers at all,” Engle,
As to point (4)(b) of the district court’s analysis, again the statute’s requirements do not apply to insurers’ paid personnel. The district court’s apparent concern that extending HRS § 431:100-308.5 to procedures (if independently denominated as an IME) other than physical examinations would require insurers “to retain licensed Hawaii providers absent insureds’ consent[,]” id. at 1163, and empower claimants to “veto” the insurers’ attempts to retain examiners of their choice to evaluate claims, id., then, is without basis. The district court does not acknowledge the express “independent” language in the statute. Moreover, the statute plainly states that if the parties cannot agree on a provider to perform the IME, “the selection may be submitted to the commissioner, arbitration, or circuit court.” HRS § 431:10C-308.5(b). Hence, contrary to the district court’s decision, the claimant does not have any “veto power” at all that would impinge on an insurers’
Based on the foregoing, I would respectfully decline to adopt these aspects of the district court's construction of HRS § 431:10C-308.5.
VI. Finally, I note that the court’s belief that the “reason and the spirit of the law” support the view that a record review should be treated as an IME, is not without appeal. Two significant propositions are evident in the legislative history. First, the legislature intended to contain the costs of IMEs. In 1992, the legislature amended portions of HRS chapter 431, article 10C, relating to motor vehicle insurance. See 1992 Haw. Sess. L. Act 124, §§ 1-18, at 210. Related to those amendments, the House Committees on Consumer Protection and Commerce and Judiciary reported that the amendments served dual purposes, namely “reducing litigation [in combination] with medical cost-containment," with the ultimate goal being that ninety percent of motor vehicle insurance claims would be resolved without litigation. Hse. Stand. Comm. Rep. No. 1271-92, in 1992 House Journal, at 1391 (emphases added). To that end, “[t]he major provisions” of the bill included the “adoption of a fee schedule modeled on the worker’s [sic] compensation medical fee schedule[.]” Id.
Second, the legislature intended to reduce litigation costs. In 2000, HRS § 431:10C-308.5(b) was amended, in relevant part, to add the provisions related to the selection of the independent medical examiner, with the preference for mutual selection by the claimant and the insurer. See 2000 Haw. Sess. L. Act 138, § 2, at 270. The Conference Committee reported that the bill was intended
to establish a fair selection process that favors selection by agreement. Where the patties are unable to agree, a neutral forum (Department of Commerce and' Consumer Affairs, arbitration, or circuit court) 'will make the selection. It is emphasized that the selection should not be a perfunctory matter, but that every effort should be made to select a neutral examiner with a balance [sic] approach that favors neither insurer or [sic] claimant. Those examiners who have acquired reputations for favoring one side or the other should not be selected. Examiners ... that do not rely heavily on IME income that might affect bias, are to be favored.
Hse. Conf. Comm. Rep. No. 37, in 2000 House Journal, at 865 (emphases added). As with the 1992 and 1998 amendments, the House Committee on Consumer Protection- and Commerce related that “the intent of this measure is to promote judicial economy, conserve administrative resources, and streamline the resolution of disputes." Hse.
As recognized in oral argument in the instant ease, a record review may be a sufficient basis for a determination of whether or not the medical treatment being claimed is appropriate and reasonable. The selection of a neutral examiner in such circumstances would obviate much of the controversy that was engendered in this case. However, the treatment of a record review as an event independent from that of a physical examination in the definition of IME in HRS § 431:10C-308.5(b) would require legislative amendment. Such an amendment would be in keeping with the objective of “promoting] judicial economy, conserv[ing] administrative resources, and streamlining] the resolution of disputes.” Hse. Stand. Comm. Rep. No. 639-00, in 2000 House Journal, at 1209.
. The majority holds that (1) "the term 'independent medical examination’ [ (IME),] as it appears in [Hawai'i Revised Statutes (HRS) ] § 431:10C-308.5(b) [(2005)], is ambiguous with respect to whether an actual examination of the claimant ... is an essential aspect of the 'examination[,]’ ” majority opinion at 117,
. HRS chapter 431:10C pertaining to Motor Vehicle Insurance, section 308.5(b), titled "Limitation on Charges," states that “[c]harges for [IMEs], including record reviews, physical examinations, history taking, and reports[,]” (emphasis added), are subject to various requirements as described infra.
. The commissioner’s ruling in Weigel is not before us on appeal today, and in that sense is "unrelated” to the present proceedings.
. McCully involved the postal service’s practice of allowing searches of parcels in its possession based on both state and federal search warrants.
. Respectfully, the deference principle in In re Water Use is inapposite. In re Water Use, like Treloar and Vail, involved an appeal from an agency decision, a situation not before this court today. Here, the subject of review is the trial court's interpretation of a statute, not an appeal from the decision of an administrative tribunal.
, Contrary to the majority's implication, Moss has nothing to do with the deference principle as it relates to forum shopping. Instead, in Moss, the court held that a claimant could not file separate, concurrent actions in the three forums provided by HRS chapter 431:10C.
. The majority maintains that Engle supports the insurance commissioner's interpretation that an IME includes a physical examination. See majority opinion at 116-17, 122,
. According to Petitioners/Plaintiffs-Appellees Margret Gillan and Howard Keller, M.D. (Petitioners), this clause was added in 1998, to curb abuse by insurers who circumvented the price limitations on IMEs by paying independent medical examiners separately for physical examinations and other services such as record reviews.
. The term "including” may (1) provide illustrations of a general description without imposing limitations on the general description, (2) clarify examples of what is to be included in a class, or (3) distinguish between members and non-members of a general class without limiting the general class. See Cummins Inc. v. United States,
it should not be used to introduce an exhaustive list, for it implies that the list is only partial. In the-words of one federal court, "It is horn-book law that the use of the word including indicates that the specified list ... is illustrative, not exclusive.” Puerto Rico Maritime Shipping Auth. v. I.C.C.,645 F.2d 1102 , 1112 n. 26 (D.C.Cir.1981).
Texas Prop. & Cas. Ins. Guar. Ass’n/Southwest Aggregates, Inc. v. Southwest Aggregates, Inc.,
. In this regard, the district court’s understanding of the relevant legislative history is consistent with the position advocated by the insurance commissioner at oral argument.
. FRCP Rule 35(a), entitled "Order for Examination,” provides, in its entirety:
(1) In general. The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
(Emphases added.) (Italics in original.)
. HRCP Rule 35(a), pertaining to orders for physical and mental examinations, states, in its entirety, that
[w]hen the mental or physical condition (including the blood group) or a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
(Emphasis added.)
. In Sice., a motion for an "IME” pursuant to FRCP Rule 35(a) was granted. However, it must be noted that it was the defendant who identified the requested examinations as IMEs. See Sice,
. In Glover, the ICA held that if the defendant had filed "a motion for an IME ... pursuant to HRCP Rule 35,”
.In discussing Liftee, the district court excerpted a transcript of proceedings in which the first circuit court seemingly correlated a HRCP Rule 35 examination to an IME. See Engle,
. Similarly, the Conference Committee considering the bill announced that its "purpose ... [was] to amend the no-fault [insurance] law with the intent of reducing and stabilizing the soaring cost of motor vehicle insurance[.]" Sen. Conf. Comm. Rep. No. 161, in 1992 Senate Journal, at 825 (emphasis added). The Conference Committee also reiterated the original intent behind the no-fault insurance scheme, "to keep ninety per cent of motor vehicle accident victims out of the tort recovery system while providing them with adequate and fair benefits." Id. at 826.
. The Senate Committee on Commerce, Consumer Protection, and Information Technology reported that the bill "[l]imils charges for [IMEs] to work that includes record reviews, physical examinations, history taking and reports[.]” Sen. Stand. Comm. Rep. No. 3143, in 1998 Senate Journal, at 1276. However, as noted before, the reach of HRS § 431:10C—308.5(b) is limited. The Conference Committee reported that those limitations were "designed to eliminate abuses and excessive charges associated with [IMEs]. The bill clarifies that the workers’ compensation fee schedule charge allowable, for IMEs may not be exceeded by submitting a separate charge for the report' or other ancillary procedures incident to the conducting of an IME." Hse. Conf. Comm. Rep. No. 117, in 1998 House Journal, at 1000 (emphasis added).