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Newport News Shipbuilding & Dry Dock Co. v. Wardell Orthopaedics, P.C.

Court of Appeals of Virginia

February 28, 2017

NEWPORT NEWS SHIPBUILDING & DRY DOCK CO., N/K/AHUNTINGTON INGALLS INCORPORATED
v.
WARDELL ORTHOPAEDICS, P.C.

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Kira A. Cook (Philip J. Geib; Philip J. Geib, P.C., on brief), for appellee.

          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 Norfolk, Virginia

          OPINION

          ROBERT J. HUMPHREYS JUDGE .

         Newport 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 (2016).

         I. Background

         The 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 permission.

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 as necessary."

         After 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, if applicable.
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 Shipbuilding.

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.

         The 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.

         On 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.

         On 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 Lester's deposition:

[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 ...

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