PetSmart, Inc. and Indemnity Insurance Company of North America v. Lori Miles

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, AtLee and Athey
UNPUBLISHED
Argued by videoconference
PETSMART, INC. AND
INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA
MEMORANDUM OPINION* BY
v. Record No. 0765-20-4 JUDGE CLIFFORD L. ATHEY, JR.
JANUARY 12, 2021
LORI MILES
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
William H. Schladt (GodwinTirocchi, LLC, on brief), for appellants.
Philip J. Geib (Philip J. Geib, P.C., on brief), for appellee.
PetSmart, Inc. and Indemnity Insurance Company of North America (“employer”) assign
error to the decision of the Workers’ Compensation Commission (“Commission”) that Lori
Miles (“employee”) is not subject to the limitations set out in Code § 65.2-605.l(F), thus
requiring the employer to pay the employee’s health providers for services rendered to the
employee. However, the Commission announced an additional independent holding in the
alternative, which is sufficient to support its decision, to which the employer did not assign error.
Therefore, the employer has waived further appellate review of the Commission’s decision, and
accordingly, we affirm the Commission.
I. BACKGROUND
The employee sustained compensable injuries to her right shoulder and right upper
extremity on November 15, 2016. She subsequently filed a claim with the Commission on April
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
25, 2017, seeking a lifetime medical award and an order requiring the employer to pay for
medical treatment related to her injuries either recommended by, or provided to, the employee by
her orthopedist, Dr. Samuel Klein. The employee filed a second claim on August 19, 2017,
related to the denial of recommended physical therapy.
A hearing on the issues was scheduled for November 16, 2017. On October 30, 2017, the
Commission entered a 30-day order cancelling that hearing. However, since no written
agreement resolving the claims was ever finalized, the claims were subsequently rescheduled for
hearing on June 29, 2018. On June 22, 2018, the parties requested that the claims be resolved by
stipulated order, which was subsequently entered by the Commission on July 6, 2018.
The stipulated order acknowledged the employer’s responsibility for costs related to a
surgery previously performed by Dr. Klein on January 23, 2018, and required the employer to
pay for pre-operative diagnostic and radiological studies, pre-operative medical treatment, as
well as reasonable and medically necessary post-operative treatment, including physical therapy.
The order was also conditioned upon the “employer [withdrawing] their defenses to the present
claims pending before the Virginia Workers’ Compensation Commission.”
On June 9, 2019, the employee filed another claim regarding medical expenses yet to be
paid by the employer as a result of the accident, including unpaid expenses owed to Southern
Physical Therapy in the amount of $885 and Chesapeake Regional Imaging Centers in the
amount of $806. The employer did not dispute that the services provided at both Southern
Physical Therapy and Chesapeake Regional Imaging Centers were reasonable, necessary, and
causally related to the compensable accident, and both parties stipulated that the claims for these
payments were filed more than a year after the employer’s last payment was received by the
medical providers.
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The employer denied payment based on its contention that the claims were barred by the
limitation period in Code § 65.2-605.l(F). The employer argued that the employee’s claim was a
de facto health care provider’s claim filed more than one year after the last payment to the
provider and therefore barred by the statute. In response, the employee relied, in part, on Code
§ 65.2-605.l(D), which states in pertinent part, that “[a]n employer’s liability to a health care
provider under this section shall not affect its liability to an employee.”
Following a hearing held on November 18, 2019, the deputy commissioner found that the
claims of the employee were not barred:
Subsections D and F are consistent with each other. If the
legislature wanted to limit claimant’s ability to request payment of
bills, they could have done so by omitting Subsection D and
modifying Subsection F to limit the ability of health care providers
and claimants to submit claims to the Commission after June 1,
2014. [Employer’s] argument that the provisions of Va. Code
§ 65.2-605.1 “should apply equally to the medical providers and
claimants regarding claims raised for payment of medical bills” is
contrary to the plain language of the statute. . . . Accordingly, the
claimant’s claims for the underpayment of $885 to Southern
Physical Therapy and $806 to Chesapeake Regional Imaging
Centers are not barred by the statute of limitations set forth at Va.
Code § 65.2-605.1 (F) and the [employers] are responsible for
payment of the same.
(emphasis in original).
The employer appealed the deputy commissioner’s finding to the full Commission, and in
a June 4, 2020 split decision, later amended on June 17, 2020, the Commission upheld the
previous finding by the deputy commissioner that the employee was not barred by the statute.
The Commission also held that, in the alternative, even if Code § 65.2-605.1(F) applied to the
employee, the claims would still be timely under subsection (F)(ii):
[T]he claim was contested by the [employer]. The parties
attempted to settle the claim long before they submitted an
executed order. The length of time that elapsed and the multiple
hearings scheduled, as well as the explicit statement that the
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defendants withdrew their defenses in the Stipulated Order,
established the claim was contested. The Commission did not
approve the parties’ Stipulated Order including a medical award to
the claimant until July 6, 2018. Southern Physical Therapy and
Chesapeake Regional Imaging Centers received partial payment
before the date the award was entered. Their right to receive
payment flowed from the July 6, 2018 Order. Accordingly, the
two health care providers’ claims would have been timely if filed
directly by them within one year of the date the medical award
became final. The [employee] filed her claim on June 9, 2019,
within one year of the July 6, 2018 Order.
The employer appeals the Commission’s decision to this Court.
II. ANALYSIS
The employer presents a single assignment of error, which states: “The full Workers’
Compensation Commission erred as a matter of law in finding that the one-year statute of
limitations found in Virginia Code § 65.2-605.l did not apply to the medical providers bills for
underpaid/unpaid medical expenses.” The employer fails to assign error to the Commission’s
alternative holding that even if the employee is subject to the limitations in Code § 65.2-605.l(F),
by virtue of being contested by the employer, the claims were validly filed within the limitations
set forth under Code § 65.2-605.l(F)(ii). Because the employer failed to assign error to this
alternative holding, the employer waived any claim of error with respect to that issue in this case.
This Court’s jurisprudence is clear that “in ‘situations in which there is one or more
alternative holdings on an issue,’ [an] appellant’s ‘failure to address one of the holdings results in
a waiver of any claim of error with respect to the court’s decision on that issue.’” Johnson v.
Commonwealth, 45 Va. App. 113, 116 (2005) (quoting United States v. Hatchett, 245 F.3d 625,
644-45 (7th Cir. 2001)). “If we were to hold otherwise, ‘an appellant could avoid the adverse
effect of a separate and independent basis for the judgment by ignoring it and leaving it
unchallenged.’” Id. at 116-17 (quoting San Antonio Press v. Custom Bilt Machinery, 852
S.W.2d 64, 65 (Tex. App. 1993)).
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However, “we still must satisfy ourselves that the alternative holding is indeed one that
(when properly applied to the facts of a given case) would legally constitute a freestanding basis
in support of the [lower] court’s decision.” Id. at 117. In doing so, “we do not examine the
underlying merits of the alternative holding-for that is the very thing being waived by the
appellant as a result of his failure to raise the point on appeal.” Id.Code § 65.2-605.l(F) provides that:
No health care provider shall submit a claim to the Commission
contesting the sufficiency of payment for health care services
rendered to a claimant after July 1, 2014, unless (i) such claim is
filed within one year of the date the last payment is received by the
health care provider pursuant to this section or (ii) if the employer
denied or contested payment for any portion of the health care
services, then, as to that service or portion thereof, such claim is
filed within one year of the date of the medical award covering
such date of service for a specific item or treatment in question
becomes final.
Here, the Commission also held that, even if the employee was subject to the limitations
under Code § 65.2-605.l(F), the claims were nonetheless timely filed pursuant to Code
§ 65.2-605.1(F)(ii) because the employer contested the claims and payment was requested within
one year of the July 6, 2018 stipulated order finally adjudicating that contest. We agree that
Code § 65.2-605.l(F), when properly applied, is an adequate basis for the Commission to reach
its decision. As a result of the employer’s waiver, we are not required to review the record to
determine whether the Commission was correct in applying Code § 65.2-605.l(F) to the
employee, nor whether the employer’s contested payment became final within a year of the
employee bringing her claim. See Johnson, 45 Va. App. at 117-18 (“We do not, however,
review the record to determine whether the [lower] court properly applied the doctrine to the
factual circumstances of this case. [Appellant] waived that issue by not raising it on appeal.”).
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III. CONCLUSION
For the foregoing reasons, we affirm the decision of the Commission.
Affirmed.
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