NEWPORT NEWS SHIPBUILDING & DRY DOCK CO., N/K/AHUNTINGTON INGALLS INCORPORATED
WARDELL ORTHOPAEDICS, P.C.
THE VIRGINIA WORKERS' COMPENSATION COMMISSION
A. Cook (Philip J. Geib; Philip J. Geib, P.C., on brief), for
Bradley D. Reeser (Jonathan H. Walker; Christopher R.
Hedrick; Mason, Mason, Walker & Hedrick, P.C., on
briefs), for appellant.
Present: Judges Humphreys, Beales and O'Brien Argued at
J. HUMPHREYS JUDGE .
News Shipbuilding & Dry Dock Co. ("NNSB"),
n/k/a Huntington Ingalls Incorporated appeals the June 17,
2016 decision of the Virginia Workers' Compensation
Commission (the "Commission") awarding Wardell
Orthopaedics, P.C. ("Wardell") an additional fee of
$10, 951.04 for services rendered to Charles Bell
("Bell") in connection with Bell's August 26,
1995 industrial accident. On appeal, NNSB contends that the
Commission erred in (1) "failing to give legal effect to
the employer's panel physician form, instead, requiring
the Employer to prove an affirmative waiver defense before
relying on its panel offer, " (2) allowing Wardell to
challenge the validity of NNSB's panel physician form,
(3) finding Dr. Arthur Wardell ("Dr. Wardell") an
authorized treating physician pursuant to the Virginia
Workers' Compensation Act (the "Act"), (4)
failing to recognize an accord and satisfaction between
Wardell and NNSB, and (5) permitting Wardell to retroactively
seek additional reimbursement pursuant to the Act when
reimbursement had been paid fully pursuant to the federal
Longshore and Harbor Workers' Compensation Act (the
"Longshore Act"), 33 U.S.C. §§ 901-950
claimant, Bell, incurred a compensable left knee injury from
a forklift accident on August 26, 1995 while working for
NNSB. NNSB accepted the injury as compensable under both the
Act and the Longshore Act. The 1995 physician panel offer
letter, prepared by NNSB, indicated in part:
I understand that under the Virginia Workers'
Compensation Act, I must accept treatment from one of a panel
of three doctors chosen by my Employer. If I fail to do so, I
will lose all my rights under the  Act. I understand that
under the [Longshore Act], I can initially select my own
doctor. In either case, I cannot change doctors without my
Employer's or the Deputy Commissioner's written
On August 28, 1995, Bell chose Dr. Kerry F. Nevins ("Dr.
Nevins") from the panel of three physicians chosen by
NNSB. On July 8, 1996, the Commission awarded Bell "the
payment of all reasonable and necessary medical treatment
causally related to the August 26, 1995 accident for as long
Dr. Nevins retired, Bell had to select a new treating
physician. In pertinent part, Bell and C.M. Lassiter
("Lassiter"), a NNSB representative, signed the
following "Choice of Physician Authorization" form
as provided by NNSB:
I, Charles B. Bell, understand that, under the Virginia
Workers' Compensation Act, I must select a physician from
a panel of three physicians offered by Newport News
Shipbuilding. If I decline to choose a panel physician, I
understand that my rights under the Virginia Workers'
Compensation Act are subject to challenge and may be lost.
. . . .
I, Charles B. Bell, understand that, if I decline to choose a
panel physician, I may select any physician of my choice
under the Longshore and Harbor Workers' Compensation Act,
I also understand that, if I have selected a panel physician,
that physician is the sole treating physician for my injury.
I hereby select Dr. Arthur Wardell located in Suffolk, VA, to
treat me for the injury I sustained while working for Newport
News Shipbuilding. I understand that the physician listed
above is my own free choice of physician and I may not change
physicians and/or seek treatment from another physician
without express permission from Newport News Shipbuilding.
Newport News Shipbuilding will not be responsible for the
charges of any other physician unless prior authorization is
obtained from an authorized representative of Newport News
On September 8, 2010, Bell chose not to select a panel
physician as chosen by NNSB, instead, Bell chose Dr. Wardell
as his treating physician.
Commission found that Dr. Wardell treated Bell for the
effects of the August 26, 1995 accident from September 29,
2010 through June 4, 2013. NNSB paid Wardell for Bell's
treatment pursuant to the Department of Labor (DOL) fee
schedule in accordance with the Longshore Act. NNSB paid a
total of $17, 205.96.
March 11, 2014, Elizabeth Lester ("Lester"), a
Wardell administrator, requested a hearing before the
Commission because, "[Wardell had] received partial
payments from [NNSB for Bell]. We do not have a contract with
[NNSB]. I am requesting these claims be placed on the docket
to be heard for payment in full." Wardell claimed that
it was due $28, 157 for the medical treatment of Bell, but
that NNSB had only paid $17, 205.96. Wardell sought the
difference of $10, 951.04.
April 29, 2015, Lester gave a deposition. Lester testified
that she was aware individuals who work for NNSB are covered
for workers' compensation under both the Act and the
Longshore Act. The following colloquy occurred during
[NNSB Counsel:] And if the payments were being made pursuant
to the Longshore fee schedule, would that cause the review to
be complete or would there be further action?
[Lester:] They would have written off the account. They would
have written off the balance due if it was according to the
DOL fee schedule.
[NNSB Counsel:] And when you say "written off the
balance due, " what does that mean?
[Lester:] If we charge 500, we receive 300 . . ., the
difference would be written off. Lester stated that after an
audit and training on the Act, she advised Wardell that it
did not ...