This is an appeal from an Order compelling appellant, Betty Ann Swantner (Swantner) to submit to an independent medical examination as requested by appellee, State Farm Insurance Companies (State Farm). The Order was entered following the trial court’s finding of good cause shown in State Farm’s Petition to Compel Independent Medical Examination pursuant to the Motor Vehicle Financial Rеsponsibility Law (MVFRL), 75 Pa.C.S. § 1796(a), Mental or physical examination of person. 1
Appellant was injured in a motor vehicle accident on December 7, 1988. Shortly thereafter, she began a course of medical treatment including hydrotherapy, ultrasound and massage for a cervical/lumbosacral sprain allegedly sustained in the accident. The treatments, by Dr. Doyle Tarwater, were administered three times рer week and
Dr. Tarwater’s reports provided to State Farm indicated that as early as the end of December, 1988, and early January, 1989, appellant was feeling pretty well, and by April, 1989, appellant was fine except for a cold. Dr. Tarwater also reported on February 14, 1989, that he did not know at that time whether the injury would be permanent.
On March 24, 1989, State Farm requested appellant to submit to an independent medical exam because it had substantial doubt as to the necessity of the treatments being given. In addition, State Farm submitted Dr. Tarwater’s reports to a peer review evaluation. Thе May 25, 1989 report from the peer review evaluation indicated that although it had been six months since the injury, the nature and extent of the treatments being given had not changed. In addition, the soft-tissue type injuries sustained would typically have shown complete relief after one or two months of treatment. Also, the frequency of the treatments ordinarily would have been reduced in accord with the patient’s indications that she was feeling better.
On June 14, 1989, the peer review report was brought to the attention of appellant’s counsel, and again an independent medical exam was requested. The letter also notified appellant that based on the peer review results, it was making its final payment to Dr. Tarwater for treatment rendered through May 5, 1989. A third request for a medical exam was made on July 13, 1989, and in an August 30, 1989 lеtter, counsel for State Farm asked Dr. Tarwater to supplement his previously forwarded documentation to address some specific concerns. Also, on August 30, 1989, State Farm again requested that an independent medical exam be given. When no response was forthcoming, State Farm, on October 5, 1989, prepared a petition to compel
Appellant appeals from the Order compelling her submission to an independent physical examination on the basis that State Farm failed to meet the three-pronged good cause test for the examination as set forth in Zachary, supra. Swantner asserts the allegations of State Farm’s petition lack specificity, that the physical examination is sought in bad faith, that State Farm failed to utilize the less intrusive means of taking depositions of her and her attending physician, that State Farm improperly employed a peer review procedure in assessing her claim for payment for medical treatment and that the trial court erred in dispоsing of the petition on its allegations, alone, without utilizing the procedure set forth in Pa.R.C.P. 209, Duty of Petitioner to Proceed After Answer Filed. After a review of the applicable case law, we affirm the Order in question.
The standards for determining whether there is good cause, under 75 Pa.C.S. § 1796, for a court to order an
In Zachary, this Court stated:
“it is mandatory that the averments contained within a petition to compel a medical examinаtion must rise to a level of specificity so as to ensure that a claimant will not be forced to submit to unnecessary examinations sought in bad faith. Accordingly, such petitions must illustrate a need, rather than a mere desire, for an independent medical examination.”
Further, quoting Nationwide Mutual Insurance Co. v. Fandray, 12 D. & C.3d 65, 70, 128 P.L.J. 63 (1979), the Court adopted the following three point test:
[T]o establish ‘good cause shown’, an insurer’s petition, at the minimum, must contain facts showing [1] that the proofs supplied in support of the claim are inadequate, [2] that the proposed physical examination will substantially assist the insurer in evaluating the claim and [3] that the amount of the claim justifies a court order compelling the claimant to submit to a physical examination.
Zachary,
supra, 370 Pa.Superior Ct. at 390,
In Hunt, our Court said:
“Before ordering a party to submit to an еxamination, however, a trial court should require a showing that a bona fide controversy exists regarding the nature of the claimant’s injuries. It must also be shown that the requested mental or physical examination will substantially aid the insurer in evaluating the claim.”
Id.,
390 Pa.Superior Ct. at 367,
To return to the beginning in our evaluation, the Vehicle Code provides as follows:
Mental or physical examination of person
(a) General rule.—Whenever the mental or physical condition of a pеrson is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the. examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance.
75 Pa.C.S. § 1796.
The central issue in this case is the requirement that the Order be “for good cause shown.” As noted above, “for good cause shown” has been subject to judicial interpretation in conflicting manners requiring resolution by the Court en banc, which may be done de novo.
At the outset, it must be stated section 1796 does not provide a guideline and it must be liberally construed to effect the legislative objects and to promote justice.
See
1 Pa.C.S. § 1928, Rule of strict and liberal cоnstruction. Guidelines sometimes aid in interpretation and expedite resolution of difficult legal and factual issues, but where they tend to deny the remedy or confuse the application of the statutory provision, they defeat their purpose. This is the point which produced the conflict between the panels of this Court in
Zachary
and
Hunt. Zachary
would apply stringent and restrictive standards of proof to permit grant
Reviewing both tests, we believe Hunt comes closer to providing the elements necessary to fulfill the legislative intent within the rule of liberal construction, but we question the necessity of any test consisting of enumerated prerequisites. The central element of section 1796 at issue here, “[t]he order may only be madе upon motion for good cause shown,” requires only that it be made upon motion and for good cause shown. Here, the trial court did not detail any enumeration of factors considered in granting the order for medical examination. If we are bound by our self-imposed restrictions, pursuant to Zachary or Hunt, in light of our numerous holdings in cases where this Court has imposed tests or guides, this case was subject to remand to have thе court explain how its decision was arrived at in light of the judicially created standards. If we adhere to Zachary or Hunt but do not require the trial court to do so, we are faced with a self-imposed appellate rule which requires more of this Court in review than of the trial court in the first instance and places the various trial courts in a position where they have little guidance as to the manner in which we ultimately rеsolve this issue. If, however, we determine such standards to be unnecessary, a remand is not required. However, by stating simply that he determined the Order for medical examination to be justified for good cause shown, we are required to review the record, consisting of motions, affidavits, briefs and other materials reviewed by the trial court, to determine if the trial court abused his discretion.
Abuse of discretion in respect to the term good cause shown (for requested medical examination) is not so difficult a concept that detailed and restrictive provisions must be engrafted upon the statute to protect the litigants from judicial error. We sometimes become enamored with tests, steps and guidelines to the point where they interfere
It may be helpful to evaluate section 1796 and its purpose as it compares with rules of deposition and discovery, specifically Pa.R.C.P. 4010, Physical and Mental Examination of Persons, which provides:
1) When the mental or physical condition (including blood group) of a party ... is in controversy, the court ... may order the party to submit to a physical or mental examinatiоn by a physician____ The order may be made only on motion for good cause shown____
Rule 4010, which predated section 1796 of the Vehicle Code, differs only in that it applies to a pending action as opposed to a claim for medical income loss or catastrophic loss benefits, and the rule requires that a controversy exists, whereas section 1796 merely provides the mental or physical condition is material to a claim. The provision of “good cause shown” is identical'in both. The terms “in controversy” and “material to any claim” cannot be read interchangeably. “In controversy” is read
“more broadly, to include any action in which the condition will be a material issue, although no personal injuries are claimed____
If the phrase “in controversy” is ambiguous, and capable of the two meanings which the federаl cases have suggested, the history of physical examination in Pennsylvania makes it clear that the broader meaning is intended. 92 ”
“Material to the claim,” as contained in section 1796, limits the examination to those instances where the information is essential to confirm the need to pay or continue payment of the claim. Under Rule 4010, a controversy exists by virtue of a pending action in which the physical or mental condition of a party is at issue. As stated in Goodrich-Amram, this could arise in the course of an estate action, libel suit or paternity action. Under section 1796 of the Vehicle Code, the physical or mental condition material to a claim is specifically associated with the injury giving rise to the claim. In both the rule and the statutory section, the term “for good cause shown” relates to the need to know in conjunction with the relative facts of the case. This provision is generally understood to protect the parties against undue invasion of their rights to privacy. See Pa.R.C.P. 4010, Explanatory note (2) 1978); Goodrich Am-ram, Deposition and Discovery § 4010(a):4 Nt. 91.
In comparing the two similar but not identical provisions, we conclude section 1796 does not require a “controversy” as does Rule 4010, and “material to а claim” entails a more focused inquiry as to entitlement to payment. “For good cause shown,” therefore, does not relate to the existence of a controversy but to the continued necessity for treatment and requirement of payment. Thus the motion may arise out of a lack of knowledge rather than a controversy, and it is up to the trial court to determine whether, on the basis of information supplied, a medical examination is warranted to ascertain the needed information. This returns us to our earlier discussion. The motion will not be granted solely because there is a controversy or a desire to know. The appellant’s contention that the court erred in failing, first, to schedule arguments on disputed allegations or in the alternative to proceed under Rule 209
Finally, we must determine whether the court erred in failing to follow either or both of the procedures detailed in
Zachary
and
Hunt
to establish “good cause shown” for ordering the medical examination. We believe, as stated earlier, the evidentiary requirements those cases espouse are not essential to such a finding. If the reсord supports the conclusion by the trial court that the medical
If controversy becomes a key to grant or denial of a motion, the insurer may create a controversy simply by alleging lack of progress or extensive bills which it refuses to accept. Nor may the insured ignore reasonable limitations on treatment by continuing in treatment without validation or justification. Thus the entire focus must be on the condition which is material to the claim, and the trial court had discretion to ascertain whether good cause has been shown to permit the examination to evaluate that condition. The good cause requirement will prevent harassment, untoward intrusion and unwarranted examination when the proof presented does not meet the standard universally applied when good cause is implicated. Further classification of the standards required by Zachary and Hunt does not facilitate the required finding but restricts analysis and review when the trial court's discretiоn should be broad. In affirming the decision of the trial court, we find no abuse of discretion in failing to specifically apply the tests of Zachary and Hunt and in doing so reject the requirements they superimpose on section 1796.
Order affirmed.
Notes
. An Order granting or denying a petition to compel an independent medical examination pursuant to section 1796(a) of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1796(a), is a final, appeal-able one.
State Farm Insurance Cos. v. Hunt,
. Although State Farm in its petition and on appeal asserts no response was received to its request for the physical examination, appellant, in her answer to the petition and on appeal, avers her counsel telephoned State Farm adjuster Barbara Rubenstein and indicated no independent medical examination would be authorized.
. In
Meyers v. Travelers Ins. Co.,