COURT OF APPEALS OF VIRGINIA
Present: Judges Humphr eys, Beales and AtLee Argued at Richmond, Virginia

ROANOKE AMBULATORY SURGERY CENTER OPINION BY v. Record No . 1055-18-2 JUDGE RANDOLPH A. BEALES JANUARY 29, 2019 BIMBO BAKERIES USA , INC., INDEMNITY INSURANCE CO. OF NORTH AMERICA AND ESIS, INC.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Cheri Hodges Warren (WarrenLaw P.C., on brief), for appellant

. Emily S. Kirkpatrick (Midkiff, Muncie & Ross, P.C., on brief) , for appellees.
This is an appeal regarding whe n the statute of limitations ac tually bars a health care provider from submitting a claim to the Workers’ Compensation C ommission contesting the sufficiency of payment for healt h care services rendered to a c laimant pursuant to Code § 65.2-605.1. Appellant Roanoke Ambulat ory Surgery Center (“RA SC”) appeals the Commission’s decision that i ts claim was time barred.
I. BACKGROUND On review, the evidence is view ed in the light most favorable t o the prevailing party before the Commission – in this cas e, Bimbo Bakeries. Smith-Ad ams v. Fairfax Cty. School Bd., 67 Va. App. 584, 589 (2017). In this opinion, we refer to Bimbo Bakeries USA, its insurer Indemnity Insurance Co. of North America, and ESIS Inc., the cl aim administrator, all collectively as “Bimbo Bakeries.”PUBLISHED- 2 - On February 23, 2015, Jeffrey Boyer was injured while in the em ploy of Bimbo Bakeries USA, Inc. RASC provided treatme nt to Boyer for his injuries. On April 29, 2015, RASC performed rotator cuff repair surgery on Boyer’s right shoulder . RASC subsequently submitted a bill of $23,122 to Bimbo Baker ies. On June 12, 2015, Bimbo Bak eries delivered payment of $4,863.10 to RASC. Bimbo Bakeries also delivered a document labeled “Review Analysis” to RASC that detailed the amount it was paying for Boyer’s surgeryand included, among other things, the following statements: “Recommended allowance is co nsidered fair & reasonable based on an analysis performed in your geographical area. . . . A technical Bill Review (TBR) has been performed. . . . Amounts billed above the recommended allowance are hereby objected to as being in excess of the am ounts authorized under state law .” RASC performed a second surgery o n Boyer’s shoulder on Septembe r 18, 2015 and submitted a bill of $12,101 to Bimbo Bakeries. On October 30, 2015, Bimbo Bakeries delivered payment of $3,078.81 for the second surgery. Bimbo Bakeries al so provided a “Review Analysis” document related to th e second surgery that contained the same language quoted above from its first review analysis. Bimbo Bakeries made no f urther payments to RASC for either of the two surgeries. Boyer eventually submitted a timely claim to the Commission on June 27, 2016 for workers’ compensation benefits related to this February 23, 201 5 injury. On July 28, 2017, the Commission approved an agreementbetween Boyer and Bimbo Bakeri es that included an award in favor of Boyer for lifetime me dical benefits for treatment o f his right shoulder rotator cuff injury. On September 1, 2017, RASC filed a c laim with the Commission re questing full payment for the medical services it pr ovided to Boyer. Deputy Commissi oner Andrea Lee issued an opinion on February 20, 2018, in which s he concluded that “the medical provider filed its claim- 3 - within one year of the date of the medical award covering the d ate of service for a specific item or treatment at issue became final. Thus . . . the medical pro vider’s claim is not time barred.” In her opinion announcing her decisi on, Deputy Commissioner Lee no ted that Bimbo Bakeries did not put forth any evidence to reb ut the provider’s evidence tha t the charges were reasonable and necessary. Since RASC’s claim w as not time barred and since Bi mbo Bakeries did not meet its burden of proving that the medical fees were excessive, the dep uty commissioner awarded RASC the balance of its charges from both surgeries that had no t been paid – $27,281.09. After Bimbo Bakeries requeste d review by the full Commission, t he Commission issued an opinion on June 8, 2018 reversing the award to RASC. Relyin g on its decision in Dietz v. Red Lobster Management, LLC, JCN VA00000994346 (Va. Wrk. Comp. Feb. 5, 2018), the full Commission focused on whether the payments made by Bimbo Bakeri es were voluntary or made pursuant to an award. Finding that the payments by Bimbo Baker ies were “voluntary payments,” the Commission concluded that Code § 65.2-605.1(F)(ii) did not apply, that “sec tion (i) must be applied,” and consequently tha t RASC’s filing of its claim on S eptember 1, 2017 was time barred pursuant to C ode § 65.2-605.1(F)(i). This appeal followed.
II. ANALYSIS The plain text of the relev ant statute, Code § 65.2-605.1(F), s tates, in full: No health care provider shall s ubmit a claim to the Commission contesting the sufficiency of paym ent for health care services rendered to a claimant after July 1, 2014, unless (i) such clai m is filed within one year of the date t he last payment is received by the health care provider pursuant t o this section or (ii) if the em ployer denied or contested payment fo r any portion of the health care services, then, as to that servic e or portion thereof, such cla im is filed within one year of the date the medical award covering su ch date of service for a specific i tem or treatment in question be comes final.- 4 - The interpretation of this stat ute of limitations with regard t o such a claim by health care providers is an issue of first i mpression before this Court, an d the interpretation of the meaning of a statute is a questi on of law that we review de novo . Town of Waverly Law Enf’t v. Owens, 51 Va. App. 277, 280 (2008). A. Arguments of the Parties On appeal, RASC argues that the plain meaning of Code § 65.2-60 5.1(F) is that there are two alternative statutes of lim itation. In support of this arg ument, RASC notes the statute uses the disjunctive word “or” rather than the conjunctive “and” between subsection (i) and (ii). Regarding the two different statutes of limitations within Code § 65.2-605.1(F), RASC concedes it would have been time barred und er subsection (i) if that was the subsection governing the factual scenario now before the C ourt, but argues that it filed its claim within the time restrictions in subsection (ii) a nd that the factual scenario n ow before us falls under subsection (ii). Bimbo Bakeries responds with tw o arguments. Bimbo Bakeries fir st contends that this Court should adopt the Commission’ s interpretation of the statu te – i.e. , which subsection applies depends upon whether the payments made were made voluntarily or as the result of an award. The Commission explained its inter pretation in Dietz, which the Commission quoted and relied upon in its opinion deci ding this case: Subsection (i) refers to vol untary payments occurring during a claimant’s course of treatment . Subsection (ii), in contrast, refers to denied or contested medical care, and is only applicable to “a specific item or treatment in ques tion” that later becomes the subject of a medical award. The se are alternatives that addres s different scenarios, and whic h subsection applies depends on whether medical treatment is pa id voluntarily or only after an award is entered. Dietz, JCN VA00000994346, at *4.- 5 - Second, Bimbo Bakeries argues that the payments for the health care services were not denied or contested but instea d were made prom ptly and voluntar ily. Consequently, under Bimbo Bakeries’ reasoning, subsec tion (ii) – which applies “if the employer denied or contested payment for any portion of the h ealth care services” – does not apply. B. Application of the S tatute of Limitations The disposition of this case com es down entirely to whether RAS C’s claim was time barred, since there is nothing i n the record before us to show that Bimbo Bakeries has, at any time, presented any evidence to t he Commission or to this Court to rebut RASC’s evidence that the charges were reasonable a nd necessary. See Ceres Marine Te rminals v. Armstrong, 59 Va. App. 694, 702-05 (2012) (holding t hat the burden of proving that medical fees are excessive is placed on the employer). There fore, we need to analyze the language of the statute – the plain text – to see whether subsecti on (i) or subsection (ii) is appl icable. “When the language of a statute is unambiguous, we are bound bythe plain meaning of that language. Furthermore, we must give effect to the legislature’s intention as expressed by the language used unless a literal interpretation of the language w ould result in a manifest absurdity.” Conyers v. Martial Arts World of Richmond, Inc., 2 73 Va. 96, 104 (2007) (citations omitted) (quoted with approval in McKellar v. Northrop Grumman Shipbuilding, Inc., 290 Va. 349, 354 (2015)). Code § 65.2-605.1(F) begins with the pr emise that health care p roviders may not file a claim contesting sufficiency of payment unless either one of tw o situations applies. Because of the use of the disjunctive “or, ” if the health care provider fi les its claim in such a way that it complies with either (i) or (ii), the claim is timely. See Dol lar Tree Stores, Inc. v. Tefft, 69 Va. App. 15, 25 (2018) (“The word ‘or’ is a disjunctive that pr ovides an alternative.”).- 6 - There is no question that RASC’ s claim would be time barred if subsection (i) of Code § 65.2-605.1(F) governs this factual scenario beca use it clearl y states that a claim is barred unless filed within one year of the last payment received by th e health care provider. The evidence shows (and the parties ag ree) that RASC received a pay ment for the first (April 2015) surgery on June 12, 2015 and received pa yment for the second (S eptember 2015) surgery on October 30, 2015. RASC filed its claim on September 1, 2017 – well beyond one year from the receipt of either payment. How ever, if subsection (ii) governs this situation, t he result is different. Subsection (ii) applies “i f the employer denied or contested payment for any portion of the health care services.” Code § 65.2-605.1(F) (emphasis adde d). Bimbo Bakeries clearly contested payment for the amount billed beyond the small percentage of the bill for each surgery that Bimbo Bakeries actually paid. 1 This contesting of the bill for each of the two surgeries is especially clear from the language used on both of the “Review Analysis” documents sent by Bimbo Bakeries to explain its par tial payment to RASC of the bi ll that Bimbo Bakeries was contesting. The review analysis stated, “Amounts billed above the recommended allowance are hereby objected to as being in excess of the amount s authorized under state law.” (Emphasis added.) To argue that such langua ge is anything other than “co ntest[ing] payment for any portion of the health care servic es” provided flies in the face of logic and common sense. Although this partial payment doe s not constitute a complete de nial, as would be the case if Bimbo Bakeries had refused to make any payment, it is a contesti ng of payment for the overall bill from RASC for each surgery. In fact, Bimbo Bakeries conte sted payment of the overall bill

1 Bimbo Bakeries argues on brief th at the Commission made a “fac tual finding that [Bimbo Bakeries] did no t deny or contest payment for the releva nt health care services . . . .” However, a review of the Commi ssion’s opinion shows that the Co mmission did not actually make such a finding of fact. See Bo yer v. Bimbo Bakeries USA, Inc., JCN VA00001037141 (Va. Wrk. Comp. June 8, 2018).- 7 - from the beginning – when Bimbo Bakeries submitted partial paym ent and notified RASC through the language in its “Revie w Analysis” documents that itwas contesting payment. Therefore, contesting payment is precisely what Bimbo Bakeries did here. In fact, it contested the great majority of the amount billed by RASC for each surger y. In short, because the employer “denied or contested payment,” and because the Commiss ion had issued an award, subsection (ii) applie s in this situation. The Commission’s (and Bimbo Baker ies’) interpretation of the st atute – turning upon whether the payments are made voluntarily – is simply unpersuas ive. Nowhere in Code § 65.2-605.1(F) is voluntariness di scussed, and nowhere in it d oes the word “voluntary” even appear. Nor is such an interpre tation in keeping with a plain reading of the statute. The Commission erred in int erpreting the statute, perhaps fearing, as it stated, that such an interpretation would result in a “peculiar framework of inconsi stent and shifting time limitations.” Boyer v. Bimbo Ba keries USA, Inc., JCN VA0000103 7141, at *3 (Va. Wrk. Comp. June 8, 2018). A court – or an administrative body, for that matter – “may not ‘second-guess the lawmakers on m atters of economics, sociology and public policy. . . . Those considerations belong exclusivel y in the legislative domain.’ Regardless of whether it ‘may or may not be better public policy’ to i nterpret [the Code] as eit her [party] urges, ‘such judgments are not ours to make.’” Chaunce y F. Hutter, Inc. v. Virginia E mployment Comm’n, 50 Va. App. 590, 600 (2007) (first quoting Infan ts v. Virginia Hous. Dev. A uth., 221 Va. 659, 671 (1980); then quoting Washington v. C ommonwealth, 46 Va. App. 276, 283 ( 2005) ( en banc )). Adopting the interpretation a dvocated by Bimbo Bakeries would h ave resulted in RASC being time barred here from filing aclaim for the first surger y before the injured claimant, Boyer, even filed his own claim with the Workers’ Compensation Commission. RASC received the first (and last) payment for the first surgery on June 12, 2015. RASC received the first (and- 8 - last) payment for the second surgery on October 30, 2015. Boye r did not file a claim until June 27, 2016 – more than a year after the last payment for the firs t surgery. 2 It is apparent, therefore, that the statutory interpret ation desired by Bimbo Bakeries wou ld require a health care provider to file a claim with the Workers ’ Compensation Commission in so me instances before the injured claimant even filed his claim, or otherwise the provide r’s claim would be forever time barred. According to the plain readi ng of Code § 65.2-605.1(F)(ii), RAS C had one year under subsection (ii) from the date on whi ch the final medical award to the injured claimant was issued to file its claim. The Commi ssion issued an order granting an award to claimant Boyer on July 28, 2017. RASC filed its claim on September 1, 2017 – easily w ithin the one-year deadline for a health care provider to file a claim under this scenario, accor ding to the requirements of subsection (F)(ii) of the statute. We hold, therefore, that the Comm ission erred as a matter of la w in its interpretation of Code § 65.2-605.1(F). Consequently, gi ven that the statute of limitations does not bar the claim and given that there is no evide nce in the record and no argume nt from Bimbo Bakeries before the Commission (or, consequentl y, before this Court) that the a mount billed by RASC was not reasonable or necessary, we reverse the Commission’s decision a nd remand to the Commission for it to enter an award to RAS C of the balance of its unpaid c harges – $27,281.09, in addition to interest at the judgment ra te as prescribed by Code § 65.2-707. RASC, on brief, requests attorney ’s fees incurred in this appea l. Reviewing the entirety of the record on appeal, we do not find that these “proceedings have been brought, prosecuted, or defended without reasonab le grounds . . . .” Code § 65.2-713. See also Virginia Polytechnic

2 Workers’ Compensation claimants have a two-year deadline from the date of the accident in which to file a claim. Code § 65.2-601.- 9 - Inst. v. Posada, 47 Va. App. 150, 167 (2005); Lowes of Short Pu mp Virginia v. Campbell, 38 Va. App. 55, 62 (2002). The appeal w as argued well by both par ties, and as noted supra , involves an issue of first imp ression. Consequently, we declin e to award attorney’s fees.
III. CONCLUSION The plain reading of Code § 65.2-60 5.1(F) is that “if the emplo yer denied or contested payment for any portion of the hea lth care services,” the health care provider may file a claim with the Commission within one ye ar of the date on which the re levant medical award becomes final. Subsection (ii) of C ode § 65.2-605.1(F) applies here be cause Bimbo Bakeries, by its express statement objecting to further payment, did deny or contest payment for any portion of the health care service provi ded, and RASC file d its claim with in one year of the Commission’s award to the injured claimant, Boyer. For all of these reasons, we rev erse the Commission’s decision that RASC’s claim was time barred and, since Bimbo Bakeries did not put on any eviden ce to show that the amount billed by RASC was not reasonable or necessary, we remand to th e Commission for it to enter an award of $27,281.09 for the balance of RASC’s unpaid charges, i n addition to interest at the judgment rate as prescribed by Code § 65.2-707. Reversed and remanded.