Hand v. Tidewater Termite & Repair Inc., 031821 VAWC, VA00000096701

• Case Date: March 18, 2021
• Court: Virginia

JIMMY HAND v. TIDEWATER TERMITE & REPAIR INC SENTARA HEALTHCARE, et al., Medical Providers ACCIDENT FUND INS CO OF AMERICA, Insurance Carrier ACCIDENT FUND INS CO OF AMERICA, Claim Administrator Jurisdiction Claim No. VA00000096701 Virginia Workers Compensation Virginia In The Workers’ Compensation Commission March 18, 2021           Date of Injury: April 10, 2009          Claim Administrator File No. AF6033574WC09000002001.           Philip J. Geib, Esquire For the Claimant.           Brian J. McNamara, Esquire For the Defendants.           Louis R. Richman, Esquire For Sentara Healthcare.           No appearance by or on behalf of Vann Virginia Center for Orthopaedics.           No appearance by or on behalf of Bon Secours DePaul Medical Center.           REVIEW before Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport on November 13, 2020 at Richmond, Virginia.          ORDER           RAPAPORT Commissioner          The claimant requests review of the Deputy Commissioner’s August 3, 2020 Opinion denying his claims seeking full payment of underpaid medical bills and attorney’s fees, pursuant to Virginia Code § 65.2-713. We AFFIRM.          I. Material Proceedings          The claimant suffered compensable injuries to his back and right shoulder on April 10, 2009, and he was awarded medical and indemnity benefits.          On December 23, 2014, the parties filed a fully executed Petition, Order, and Affidavit in the case. The Petition signed by the claimant and his counsel states, in part:

The petitioners each agree that the ends of justice will be met, and the interests of the parties will be best served if the Commission approves this settlement, and the claimant is fully advised that upon the approval of the settlement and payment to the claimant by the defendants. as set forth above, the claimant shall have no further claim of any nature for compensation or any other benefit of any kind or nature, under the workers’ compensation laws of the Commonwealth of Virginia, against the defendants, arising out of the alleged injuries sustained on or about April 10, 2009, including any compensable consequence, change-in-condition, aggravation or exacerbation thereof.

         On December 9, 2014, the claimant signed a notarized Affidavit as part of the settlement agreement, that stated: “I cannot obtain any additional compensation or medical benefits from the employer and insurer, other than those agreed to in the settlement. In addition, the Workers’ Compensation Commission will be unable to provide any additional assistance.” The Affidavit also states, in all capital letters, “THAT I FULLY UNDERSTAND THAT THIS SETTLEMENT FOREVER CLOSES MY CASE, INCLUDING ANY AND ALL COMPENSATION OR MEDICAL BENEFITS EXCEPT THOSE SPECIFICALLY LISTED IN THE SETTLEMENT.”          The Commission entered an Order approving the settlement of the controversies existing between the claimant and the defendants on January 13, 2015. The Order included the following provision: “The defendants shall pay for reasonable, necessary, related and authorized medical expenses through the date of entry of the Order approving the parties’ settlement agreement.” The Order further provided:

Said settlement as set forth above shall be and hereby is a complete extinguishment and complete payment of any and all claims, of any kind of nature, which the claimant, and all persons claiming through the claimant, might have against the defendants under the Virginia Workers’ Compensation Act, including, but not limited to, claims for past, present, and future temporary total disability benefits, including cost of living adjustments, permanent partial disability benefits, permanent total disability benefits, temporary partial disability benefits, vocational rehabilitation, death and funeral benefits, and medical expenses through the date of the Order approving the parties’ settlement, under the workers’ compensation laws of the Commonwealth of Virginia, as a result of injuries sustained by the claimant on or about April 10, 2009, including any compensable consequence, change-in-condition, aggravation or exacerbation thereof.

         On April 30, 2019 and June 27, 2019, the claimant sought to hold the defendants responsible for an underpayment of $8,490.61 for services rendered by Bon Secours DePaul Medical Center (“Bon Secours”) between July 14, 2009 and October 26, 2009; $20,740.08 for services rendered by Sentara Healthcare (“Sentara”) between October 19, 2009 and November 5, 2012; and $3,083.14 for services rendered by Vann Virginia Center for Orthopaedics (“Vann”) between June 18, 2009 and August 16, 2011. The claimant also sought attorney’s fees pursuant to Virginia Code § 65.2-713, contending the claims were defended without reasonable grounds.          The claimant’s claims were considered by the Deputy Commissioner at a January 6, 2020 hearing. The defendants asserted the claimant lacked standing to pursue the underpaid expenses sought. At the hearing, counsel for the claimant submitted a designation of bills and medical records, Claimant’s Exhibit 1.^[1]          The Deputy Commissioner held the claimant lacked standing to pursue the claims for underpayment. She explained:

The bills submitted by the claimant in support of his claim form the basis by which it is determined that he lacks standing to pursue his claim as there is no outstanding judicial issue. While a provider may not be willing to continue treatment or provide subsequent medical providers with treatment records without full payment of outstanding bills, in this case, all providers have communicated directly to the claimant that as to him, their bills reflect a zero balance. Although this fact does not prevent a medical provider from seeking full payment from the defendants, it does render the claimant without a “dog in the fight” as no dispute related to the underpayment of bills by the defendants to the provider will negatively

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