THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Hodges Warren (WarrenLaw P.C., on brief), for appellant.
S. Kirkpatrick (Midkiff, Muncie & Ross, P.C., on brief),
Present: Judges Humphreys, Beales and AtLee Argued at
RANDOLPH A. BEALES JUDGE.
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.
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."
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."
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.
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.
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.
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 § 65.2-605.1(F)(ii) did not apply,
that "section (i) must be applied," ...