Murphy v. Commissioner of the Department of Industrial Accidents

Liacos, C.J. In Murphy v. Commissioner of the Dep’t of Indus. Accidents, 415 Mass. 218 (1993) (Murphy I), we held that a portion of G. L. c. 152, § 11 A, as appearing in St. 1991, c. 398, § 30, was unconstitutional because it required that a “claimant represented by counsel . . . submit a fee” not required by other claimants. This classification, we held, violated “the equal protection provisions of the Constitution of the Commonwealth” in that it was not supported by any rational basis. Id. at 233. The question before us now is whether the judgment entered in the Superior Court pursuant to our order of remand complies with that order. We conclude that it does. For background information regarding the facts of this case and the statutes involved, we refer the reader to Murphy I, supra. We focus on the offending passage, as it appears in § 11A (2) (we shall refer to this entire section as the “impartial physician section”): “(2) When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to section ten A, the parties shall agree upon an impartial medical examiner from the roster to examine the employee and submit such choice to the administrative judge assigned to the case within ten calendar days of filing the appeal, or said administrative judge shall appoint such examiner from the roster. The insurer or any claimant represented by counsel who files such appeal shall also submit a fee equal to the average weekly wage in the commonwealth at the time of the appeal to defray the cost of the medical examination under this section . . . .” We held that “the fee provisions of § 11A violate the equal protection clause.” Murphy I, supra at 233. We held the — 167 — provision unconstitutional because it arbitrarily and without rational basis classified claimants based on whether they were proceeding with the assistance of an attorney. We noted that the amount of the fee ("the average weekly wage in the commonwealth") bore no clear relation for the stated purpose of the fee ("to defray the cost of the medical examination"), but did not rule that these words were unconstitutional as a violation of equal protection or of due process. Rather, we simply noted that § 1 1A (3) required such fees to be set at a "reasonable amount." Murphy I, supra at 232 n.20. Shortly after we issued our decision, the defendants filed an emergency motion, asking the Superior Court judge to enter a declaration that the phrases "represented by counsel" and "equal to the average weekly wage in the commonwealth at the time of the appeal" are unconstitutional and without force or effect, but that the remainder of the section, including the words retained in the sentence regarding the fee, remains valid. The sentence would then read: "The insurer or any claimant who files such appeal shall also submit a fee to defray the cost of the medical examination under this section "2 The plaintiff argued that excising particular words in the midst of the fee provision constituted an improper rewriting of the statute, and that the entire sentence regarding the payment of a fee was invalid. In the alternative, the plaintiff argued that the fee provision was not severable from the re — 168 — mainder of § 11 A, and thus, that the entire impartial physician section was invalid. The Superior Court judge considered the two options put before her by the parties: the defendants’ option, that is, striking particular words from the fee provision, so that it now applies to all claimants and specifies no amount for the fee; and the plaintiffs option, that is, declaring the entire impartial physician section invalid. She chose the former, reasoning that the Legislature’s strong commitment to the impartial physician section of § 11A indicated that the Legislature would not have intended the entire section to fail. The judge stated: “The Legislature’s strong commitment to the impartial physician concept is clear. As the House Ways and Means Committee Report (Dec. 1991) stated: ‘The use of impartial doctors is thought by a number of workers’ compensation authorities to be the single most important method of reducing litigation. The use of a single, impartial physician should make hearings faster, more reliable, and less likely to occur at all.’ Id. at 5. “The general rule is that, when as here, a Court is obliged to declare part of a statute unconstitutional, as far as possible the Court will hold the remainder of the statute valid. Opinion of the Justices, 330 Mass. 713, 726 (1953). Here, the invalid portions of the statute are not so entwined that the Legislature could not have intended that the remaining part should take effect without the unconstitutional portion. “This Court must seek to minimize the scope of any necessary intrusion into the legislative sphere. A nullification of Section 11A in its entirety would represent a far greater intrusion into that sphere than excising only the offending phrases.” The plaintiff appealed. We granted a joint application for direct appellate review. We agree that the Legislature would — 169 — not have intended that the entire section fail. We are guided by certain general principles, about which the parties do not disagree. We state these principles: “When a court is compelled to pass upon the constitutionality of a statute and is obliged to declare part of it unconstitutional, the court, as far as possible, will hold the remainder to be constitutional and valid, if the parts are capable of separation and are not so entwined that the Legislature could not have intended that the part otherwise valid should take effect without the invalid part.” Massachusetts Wholesalers of Malt Beverages, Inc. v. Commonwealth, 414 Mass. 411, 420 (1993), quoting Boston Gas Co. v. Department of Pub. Utils., 387 Mass. 531, 540 (1982).3 On the other hand, “[i]f the court is unable to know whether the Legislature would have enacted a particular bill without the unconstitutional provision, it will not sever the unconstitutional provision, but will strike the entire statute.” Mayor of Boston v. Treasurer & Receiver Gen., 384 Mass. 718, 725 (1981), citing Pedlosky v. Massachusetts Inst. of Technology, 352 Mass. 127, 129 (1967). We consider first whether the words “represented by counsel” and “equal to the average weekly wage in the commonwealth” are “capable of separation,” see Massachusetts Wholesalers, supra, from the second sentence in § 11 A. We do so as a preliminary step before considering the Legislature’s intent as to whether the valid portion should remain. In other words, the first step of our analysis is to determine whether the invalid provision consists of the words noted above, or whether it consists of the entire fee provision. The defendants argue that the words are capable of separation because the new sentence, created by striking out those words, stands as a logical and grammatical sentence, and avoids the unconstitutional classification which we identified — 170 — in Murphy I, supra. The defendants point out, and we agree, that there is not, nor should there be, any general rule that only entire sentences may be separated from otherwise valid statutes. In appropriate circumstances, individual words may be struck. See Commonwealth v. Baird, 355 Mass. 746, 755 (1969), cert, denied, 396 U.S. 1029 (1970). We are left with the question whether the Legislature would have intended the entire impartial physician section to be invalid or whether the fee provision alone may be struck. It is at this point that we must consider whether the fee provision is so entwined with the impartial medical examination provision that the Legislature could not have intended the section to take effect without it. See Massachusetts Wholesalers, supra. We have no trouble concluding that the Legislature would have intended the impartial medical examination provisions to stand even if the fee provision was determined to be constitutionally barred. Although the particular mechanism for funding the impartial examination was undoubtedly a consideration of the Legislature in enacting § 11 A, its primary purpose was to streamline the workers’ compensation process by eliminating the so-called “dueling doctors” phenomenon. As the House Ways and Means Committee Report at 5 (Dec. 1991) stated: “The use of impartial doctors is thought by a number of workers’ compensation authorities to be the single most important method of reducing litigation. The use of a single, impartial physician should make hearings faster, more reliable, and less likely to occur at all.” We think the defendants are correct when they state that the Legislature may not have enacted § 11A if there was no funding mechanism. The fact that the mechanism chosen was unconstitutional does not in itself require that the entire provision be struck. Our inquiry is not, “Did the Legislature wish to require that parties contribute to the cost of the examination?” (clearly it did) but rather, “If the Legislature — 171 — had known that its chosen method for defraying the cost of the examination were unconstitutional would it have wanted there to be no examination at all?” Based on the record before us, we conclude that the answer to this question must be, “No.” We believe the Legislature would have intended the remainder of the section to be valid. In concluding that struck provisions are not “so entwined” as to require complete invawe agree with the judge’s analysis. The language of § 11 A, taken as a whole, indicates to us that the provision regarding the impartial medical examination was not so entwined with the fee provision as to require that the former fall with the latter. The order of the Superior Court deleting the words “represented by counsel” and “equal to the average weekly wage in the commonwealth at the time of the appeal” is affirmed. So ordered. Footnotes [2] According to the defendants' brief, the Executive Office for Administration and Finance, acting pursuant to G. L. c. 7, § 3B (1992 ed.), and G. L. c. 30A, § 2 (1992 ed.), set the fee at $350, an amount equal to the amount paid by the Department of Industrial Accidents to an impartial medical examiner under a contract with those examiners. We decline to address the issue of the propriety of this method for setting the fee for the reason the matter is not before us on this record. We note only that we made a brief reference to the seeming arbitrariness of the fee, see Murphy v. Commissioner of the Dep't of Indus. Accidents, 415 Mass. 218, 232 n.20 (1993), and did not feel compelled to elaborate on that point or expressly state that the amount of the fee was unconstitutional. [3] In addition to the well-established judicial preference in favor of sever-ability, the Legislature has codified a similar view. General Laws c. 4, § 6 (1992 ed.), provides at clause Eleventh: “The provisions of any statute shall be deemed severable, and if any part of any statute shall be adjudged unconstitutional or invalid, such judgment shall not affect other valid parts thereof.”