Petsmart, Inc. v. Miles, 011221 VACA, 0765-20-4

Docket Nº:0765-20-4
Opinion Judge:CLIFFORD L. ATHEY, JR. JUDGE
Party Name:PETSMART, INC. AND INDEMNITY INSURANCE COMPANY v. LORI MILES
Attorney:William H. Schladt (GodwinTirocchi, LLC, on brief), for appellants. Philip J. Geib (Philip J. Geib, P.C., on brief), for appellee.
Judge Panel:Present: Judges Huff, AtLee and Athey Argued by videoconference
Case Date:January 12, 2021
Court:Court of Appeals of Virginia

PETSMART, INC. AND INDEMNITY INSURANCE COMPANY

v.

LORI MILES

No. 0765-20-4

Court of Appeals of Virginia

January 12, 2021

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.

Present: Judges Huff, AtLee and Athey Argued by videoconference

MEMORANDUM OPINION [*]

CLIFFORD L. ATHEY, JR. JUDGE

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 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.

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,...

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