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Roanoke Ambulatory Surgery Center v. Bimbo Bakeries USA, Inc.

Court of Appeals of Virginia

January 29, 2019

ROANOKE AMBULATORY SURGERY CENTER
v.
BIMBO BAKERIES USA, INC., INDEMNITY INSURANCE CO. OF NORTH AMERICA AND ESIS, INC.

          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

          Cheri Hodges Warren (WarrenLaw P.C., on brief), for appellant.

          Emily S. Kirkpatrick (Midkiff, Muncie & Ross, P.C., on brief), for appellees.

          Present: Judges Humphreys, Beales and AtLee Argued at Richmond, Virginia

          OPINION

          RANDOLPH A. BEALES JUDGE.

         This is an appeal regarding when the statute of limitations actually bars a health care provider from submitting a claim to the Workers' Compensation Commission contesting the sufficiency of payment for health care services rendered to a claimant pursuant to Code § 65.2-605.1. Appellant Roanoke Ambulatory Surgery Center ("RASC") appeals the Commission's decision that its claim was time barred.

         I. BACKGROUND

         On review, the evidence is viewed in the light most favorable to the prevailing party before the Commission - in this case, Bimbo Bakeries. Smith-Adams v. Fairfax Cty. School Bd., 67 Va.App. 584, 589 (2017). In this opinion, we refer to Bimbo Bakeries USA, its insurer Indemnity Insurance Co. of North America, and ESIS Inc., the claim administrator, all collectively as "Bimbo Bakeries."

         On February 23, 2015, Jeffrey Boyer was injured while in the employ of Bimbo Bakeries USA, Inc. RASC provided treatment to Boyer for his injuries. On April 29, 2015, RASC performed rotator cuff repair surgery on Boyer's right shoulder. RASC subsequently submitted a bill of $23, 122 to Bimbo Bakeries. On June 12, 2015, Bimbo Bakeries delivered payment of $4, 863.10 to RASC. Bimbo Bakeries also delivered a document labeled "Review Analysis" to RASC that detailed the amount it was paying for Boyer's surgery and included, among other things, the following statements: "Recommended allowance is considered fair & reasonable based on an analysis performed in your geographical area. . . . A technical Bill Review (TBR) has been performed. . . . Amounts billed above the recommended allowance are hereby objected to as being in excess of the amounts authorized under state law."

         RASC performed a second surgery on Boyer's shoulder on September 18, 2015 and submitted a bill of $12, 101 to Bimbo Bakeries. On October 30, 2015, Bimbo Bakeries delivered payment of $3, 078.81 for the second surgery. Bimbo Bakeries also provided a "Review Analysis" document related to the second surgery that contained the same language quoted above from its first review analysis. Bimbo Bakeries made no further payments to RASC for either of the two surgeries.

         Boyer eventually submitted a timely claim to the Commission on June 27, 2016 for workers' compensation benefits related to this February 23, 2015 injury. On July 28, 2017, the Commission approved an agreement between Boyer and Bimbo Bakeries that included an award in favor of Boyer for lifetime medical benefits for treatment of his right shoulder rotator cuff injury.

         On September 1, 2017, RASC filed a claim with the Commission requesting full payment for the medical services it provided to Boyer. Deputy Commissioner Andrea Lee issued an opinion on February 20, 2018, in which she concluded that "the medical provider filed its claim within one year of the date of the medical award covering the date of service for a specific item or treatment at issue became final. Thus . . . the medical provider's claim is not time barred." In her opinion announcing her decision, Deputy Commissioner Lee noted that Bimbo Bakeries did not put forth any evidence to rebut the provider's evidence that the charges were reasonable and necessary. Since RASC's claim was not time barred and since Bimbo Bakeries did not meet its burden of proving that the medical fees were excessive, the deputy commissioner awarded RASC the balance of its charges from both surgeries that had not been paid - $27, 281.09.

         After Bimbo Bakeries requested review by the full Commission, the Commission issued an opinion on June 8, 2018 reversing the award to RASC. Relying on its decision in Dietz v. Red Lobster Management, LLC, JCN VA00000994346 (Va. Wrk. Comp. Feb. 5, 2018), the full Commission focused on whether the payments made by Bimbo Bakeries were voluntary or made pursuant to an award. Finding that the payments by Bimbo Bakeries were "voluntary payments," the Commission concluded that Code ยง 65.2-605.1(F)(ii) did not apply, that "section (i) must be applied," ...


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