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

P
                                             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UNPUBLISHED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.



                                               -2-
       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
                                                 -3-
               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)).
                                                -4-
        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.”).




                                                 -5-
                              III. CONCLUSION

For the foregoing reasons, we affirm the decision of the Commission.

                                                                       Affirmed.




                                      -6-

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