Hedgepeth v. Wal-Mart Associates Inc National Union Fire Ins Co of Pittsburg, 031921 VAWC, VA00000265965

Case DateMarch 19, 2021
CourtVirginia
VICTORIA HEDGEPETH
v.
WAL-MART ASSOCIATES INC NATIONAL UNION FIRE INS CO OF PITTSBURG, Insurance Carrier
WALMART CLAIMS SERVICES, INC., Claim Administrator
Jurisdiction Claim No. VA00000265965
Virginia Workers Compensation
Virginia In The Workers’ Compensation Commission
March 19, 2021
          Date of Injury May 1, 2010          Claim Administrator File No. C0478700          No Appearance For the Claimant.           Philip J. Geib, Esquire For the Medical Provider, Adult and Pediatric Neurosurgery           Evan G. Edwards, Esquire For the Defendant.           REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.          ORDER           MARSHALL Commissioner          The medical provider requests review of the Deputy Commissioner’s September 8, 2020 Opinion denying its application. We AFFIRM in part and VACATE in part.          I. Material Proceedings          The claimant suffered a compensable injury by accident on May 1, 2010. An October 5, 2010 Award Order granted temporary total disability and medical benefits for a neck injury. A September 4, 2015 Opinion awarded treatment for the claimant’s right arm and shoulder due to radiating symptoms causally related to her injury and subsequent surgery.          The medical provider filed September 2, 2018, September 10, 2019, and March 30, 2020 applications seeking payment for services rendered by Dr. Tina Rodrigue and a surgical assistant for various dates of service from August 4, 2010 through April 3, 2014. The medical provider also sought an award of attorney’s fees and costs pursuant to Virginia Code § 65.2-713.          The parties resolved the claims for the surgical assistant’s charges for all dates of service and the claims for Dr. Rodrigue’s charges for all dates of service other than April 3, 2014. Their agreement was memorialized in a Stipulated Order entered by the Commission on August 20, 2020. The only issues remaining for hearing were the defendants’ responsibility for Dr. Rodrigue’s services on April 3, 2014 and the medical provider’s request for attorney’s fees. The defendants disputed the application on the grounds that they paid the medical provider according to the terms of a contract and that they did not unreasonably defend the claim.          The matter was scheduled for an on-the-record hearing. Both parties submitted timely position statements and supporting evidence. The Deputy Commissioner issued a September 8, 2020 Opinion. He found the medical provider’s submission of the bills for the services of Dr. Rodrigue and the surgical assistant were prima facie evidence of the reasonableness of the charges. The medical provider argued that the defendants failed to meet their burden to prove that the payments made met the prevailing community rate. The Deputy Commissioner rejected this argument, noting that it ignored holdings by the Commission and the Court of Appeals of Virginia stating that an insurance carrier could prove that contractual agreements between it and the provider superseded the provisions of Virginia Code § 65.2-605. He found the defendants met their burden of proving the existence, terms, and application of a contract that was in place at the time the medical provider performed the services at issue. Specifically, United Healthcare contracted with the medical provider for the provision of services rendered under the OneNet Preferred Provider Organization (PPO) health network, which administered a workers’ compensation benefit program in association with United Healthcare. The Deputy Commissioner determined that the contract applied to both Dr. Rodrigue and the surgical assistant. He found no evidence supporting the medical provider’s assertion that it had opted out of the contract.          The Deputy Commissioner held that the Commission was the wrong forum for the medical provider to pursue its claim that the defendants failed to make payments in accord with the contract. He concluded the parties were bound by the agreement’s mechanism for resolving disputes between them regarding payments, including the time limit imposed for requesting resolution of any disputes. The contract contained a provision requiring that the medical provider contest any payment made “within a 12-month period following the date the claim was paid.” The evidence established the carrier paid for Dr. Rodrigue’s April 3, 2014 services by May 2, 2014. The medical provider did not contest payment until filing its September 2, 2018 application. Accordingly, the Deputy Commissioner found the medical provider was barred from seeking relief. The September 2, 2018, September 10, 2019 and March 30, 2020 applications were denied.          The medical provider filed a timely request for review. Its assignments of error are summarized as: (1) The Deputy Commissioner erred in finding the contract applied to the charges for the surgical assistant’s services; (2) The Deputy Commissioner erred in finding the contract applied to the charges for Dr. Rodrigue’s services; (3) The Deputy Commissioner erred in determining the defendants were not required to put on affirmative evidence of the means by which they reduced/repriced the billed charges in accord with the contract; and (4) The Deputy Commissioner erred in failing to require the defendants to put on affirmative evidence of the prevailing community rate.          II. Findings of Fact and Rulings of Law          A. Charges for Surgical Assistant’s Services          We first address the medical provider’s contention that the Deputy Commissioner erred in addressing the claim for the surgical assistant’s charges. The...

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