COURT OF APPEALS OF VIRGINIA Present: Judges Alston, McCullou gh and Senior Judge Clements Argued at Richmond, Virginia

SURGI-CENTER OF CE NTRAL VIRGINIA MEMORANDUM OPINION  BY v. Record No. 0484-15-2 J UDGE ROSSIE D. ALSTON, JR. NOVEMBER 24, 2015 McLANE COMPANY , INC. AND NEW HAMPSHIRE INSURANCE COMPANY

FROM THE VIRGINIA WORKER S’ COMPENSATION COMMISSION Zenobia J. Peoples for appellant. Emily S. Kirkpatrick (Midkiff, Muncie & Ross, P.C., on brief), for appellees.

Surgi-Center of Central Virginia (appella nt/Surgi-Center) appeals a decision of the Workers’ Compensation Commission (the Comm ission). Surgi-Center alleges that the Commission erred in affirming th e deputy commissioner’s finding that Surgi-Center’s bills for medical treatment provided to Earl Weimer (claim ant) were properly reduced pursuant to a series of preferred provider contract s. Specifically, Surgi-Cent er argues that the Commission improperly found that a notice requi rement provision in Surgi-Center ’s initial faci lity services agreement with Aetna Health, In c. (Aetna) did not apply to a 2010 amendment to the agreement and therefore, Surgi-Center was not entitled to notice that New Hampshire Insurance Company (carrier) qualified as a “Pa yor” under the 2010 amendment and was entitled to reduced

reimbursement rates for services rendered by Surgi-Center. We find no error in the Commission’s interpretation of th e relevant contracts or its ru ling and affirm the Commission’s

decision.

 Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - I. Background The parties involved participated in a number of contractual agreements over a ten-year span. On June 26, 2000, AIG and its subsidiaries, which included carrier, entered into a Provider Network and Bill Audit Services Agreement (the “services agreement”) with First Health Group Corp. (“First Health”), a contra ct provider network. The serv ices agreement provided carrier access to First Health’s pref erred provider networks. On September 1, 2007, First Health and Aetna’s Workers’ Comp Access, LLC, (“AWCA”), a subsidiary of Aetna Health, Inc., entered into a Network Services Agreement, which provided that First Health would offer its clients access to AWCA’s network of preferred healthcare providers and reduced reimbursement rates (the “AWCA/First Health agreement”). The AWCA/First Health agreement provided that First Health, “offe rs, either directly or through a [First Health] affiliate, access to a network of contract providers, or arranges for such services to be provided to Clients.” 1 Through its initial services agre ement with First Health and the AWCA/First Health agreement, pursuant to which carrier qualified as a client, carrier gained access to the AWCA preferred healthcare provide r network and AWCA reimbursement rates. On August 1, 2004, Surgi-Center, the healthcare pr ovider in the present case, entered into a Facility Services Agreement (the “Surgi-Cente r agreement”) with Aetna Health, Inc., whereby Surgi-Center became a participa ting provider to Aetna’s members. The Surgi-Center agreement

1 Client was defined in Paragraph 1.4 as: [An] entity, including bu t not limited to, insurance carriers, third party administrators, resellers, employers, and other entities, including, any clients of such insurance carriers, third party administrators, resellers, em ployers, and other entities who contract with [First Health] or [First Health] Affiliate, either directly or indirectly, to access the WC Network and who also has the financial responsibility for pa yment of Medical Services to Claimants.- 3 - contained a provision requiring Aetn a to provide Surgi-Center with notice whenever it conveyed the benefits of the Surgi-Center agreement, including the services and compensation schedules, to payors. 2 Surgi-Center and Aetna amended the Su rgi-Center agreement on April 1, 2010, to enroll Surgi-Center as a partic ipating provider in the AWCA ne twork (the “AWCA/Surgi-Center amendment”). The AWCA/Surgi -Center amendment provided that Surgi-Center agreed to accept certain specified rates as payment in full for compensable services rendered to workers’ compensation claimants under workers’ compensa tion insurance coverage provided by carrier

clients of AWCA. The AWCA/S urgi-Center amendment further provided that payment for

services rendered would be made pursuant to an attached rate schedule. Under the schedule, Surgi-Center was entitled to payment in the le sser of either 85% of the allowable amount or 100% of billed charges. Add itionally, the AWCA/Surgi-Center amendment redefined the term “Plan Sponsor” to include “Payor.” 3 Finally, the AWCA/Surgi -Center amendment provided

that:

2 The agreement provided, in part: [Aetna] may sell, lease, transfer or otherwise convey to payers (other than Plan Sponsors) whic h do not compete with [Aetna’s] product offerings (e.g. workers’ compensation or automobile insurers) in the geographic area where [Surgi-Center] provides Covered Services, the benefits of this Agreement, including, without limitation, the Servic es and Compensation Schedule attached hereto, under terms and conditions which will be communicated to [Surgi-Center] in each case. For those programs and products which are not health benefit products (e.g. workers’ compensation or auto insurance), [S urgi-Center] shall have thirty (30) days from receipt of the af orementioned notice from [Aetna] to notify [Aetna] in writing if [Surgi-Center] elects not to participate in such product(s).

3 The original 2004 agreement defined “Plan Sponsor” in Section 1.34 as: An employer, insurer, third pa rty administrator, labor union, organization, or other person or en tity which has contracted with- 4 - All terms and conditions of the Agr eement, not in conflict with the terms and conditions set forth in this Amendment, to the extent reasonably applicable to Compensabl e Services, shall also apply to Compensable Services provided to Claimants. In the event that any provision or definition in this Amendment relating to Compensable Services provided to Claimants conflicts with any other provisions or definition in the Agreement, this Amendment shall govern solely as it relates to Compensable Services provided to Claimants. On March 31, 2010, claimant, an employee of McLane Company, Inc. (employer/appellee), sustained a compensable injury to his left wrist. Surgi-Center provided

medical services to claimant on April 1, 2010, the same day that the AWCA/Surgi-Center amendment was signed. After providing treatment to claimant, Surgi-Center billed carrier for the treatment provided. Pursuant to the AWCA reduced reimbursement rates, carrier made payments totaling less than one hundred percent of the total billed by Surgi-Center. On June 4, 2013, Surgi-Center filed its application seek ing additional payment of $8,725.31 for services provided to claimant. Employe r and carrier asserted that Surgi-Center was bound by the AWCA/Surgi-Center amendment a nd that under that agreement, the reimbursement or payment rates for services rendered totaled $2,344.69. The dispute between carrier and Surgi-Center was placed before the Commission for adjudication. The deputy commissioner ruled that the charges were properl y reduced pursuant to the AWCA/Surgi-Center amendment. Moreover, the deputy commissioner found that even though Surgi-Center may not have been specifically advised of the AWCA/First Health agreement

[Aetna] to offer, issue and/or admi nister a Plan that is not a Full Risk Plan and has agreed to be responsible for funding benefit payments for Covered Services provided to Members under the terms of a Plan. The AWCA/Surgi-Center amendment defined “P ayors” in the preamble as “employers, workers’ compensation insurance carriers and thir d party administrators.” Section III of the AWCA/Surgi-Center amendment provided that “[Aetna] may provide access or otherwise convey to Payors the benefits of this Agreement.”- 5 - and/or the exact dollar amount that would be paid for services, Surgi-Center clearly received

notice of reimbursement rates th rough the rate schedule attach ed to the AWCA/Surgi-Center amendment. The deputy commissioner also relied on language in th e AWCA/Surgi-Center amendment that provided that if the te rms of the original agreement and the AWCA/Surgi-Center amendment conflict, the amen dment’s terms would prevail. Therefore, according to the deputy commissioner, the notice provision contained in the original agreement did not apply to the AWCA/Surgi-Center amen dment and carrier properly paid reduced reimbursement rates pursuant to its access to the AWCA netw ork through First Health. The Commission affirmed the deputy commissi oner’s finding, noting that there was no dispute regarding the validity of any of the agreements at issu e and no dispute that the notice requirements in the 2004 agreement had not been followed. In addition, the Commission agreed with the deputy commissioner that the AWCA/S urgi-Center amendment “[did] not impose the same notice requirements” and therefore “it is necessarily in conflict with the Agreement.” Thus, because the AWCA/Surgi-Center amendment pr ovided that its terms would prevail in such a scenario; the Commission held th e notice provision was inapplicable in the instant case. This appeal followed. II. Analysis As there are no factual findings at issue in this case and our review extends solely to the interpretation of undisputed contracts, this ca se “presents a question of law subject to de novo review.” Cappo Management v. Inc. v. Britt, 282 Va. 33, 37, 711 S.E.2d 209, 210-11 (2011) (quoting PMA Capital Ins. Co. v. U.S. Airways, Inc., 271 Va. 352, 357-58, 626 S.E.2d 369, 372 (2006)). 4 “[This Court is not] bound by the [Commi ssion]’s interpretation of the contract

4 Surgi-Center argues on brief that this Court should apply the credible evidence standard to our review of the Commission’s decision in this case. However, the record reveals that the- 6 - provision at issue; rather , [this Court has] an equal opportuni ty to consider the words of the

contract within the four corner s of the instrument itself.” Reston Surgery Ctr. v. City of Alexandria, 62 Va. App. 549, 560, 750 S.E.2d 214, 219 (2013) (quoting PBM Nutritionals, LLC v. Lexington Ins. Co., 283 Va. 624, 633, 724 S.E.2d 707, 712-13 (2012)). Surgi-Center contends that the Commission erre d in determining that Surgi-Center’s bills

for medical treatment rendered to the claimant were properly redu ced. Specifically, Surgi-Center argues that because the 2004 agreement required Aetna to notify Surgi-Center when it conveyed

the reduced reimbursement rates to payors, that same notice provi sion was incorporated into the AWCA/Surgi-Center amendment. Therefore, Surgi-Center argue s that it should have been notified of Carrier’s participati on in the AWCA/First Health ag reement and its access to AWCA networks and had the oppor tunity to opt out. To the contrary, Carrier contends that th e AWCA/Surgi-Center amendment contained no notice provision similar to the one provided in the original 2004 agreement. Consequently,

because the terms of the AWCA /Surgi-Center amendment and the agreement conflict, the AWCA/Surgi-Center amendment gove rns. We agree with carrier and affirm the Commission’s finding. “The guiding light in the construction of a c ontract is the intention of the parties as expressed by them in the words they have us ed, and courts are bound to say that the parties intended what the written instrument plainl y declares.” Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984) (quoting Meade v. Wallen, 226 Va. 465, 467, 311 S.E.2d 103, 104 (1984)). “When two provisions of a contract se emingly conflict, if, w ithout discarding either,

Commission’s determination involved its interp retation of the AWCA/S urgi-Center amendment and whether the notice provision from the 2004 agr eement applied. The parties did not dispute the existence of any of the applicable contr acts, and the Commission made no factual findings underpinning its interpretation of the contracts. Therefore, a de novo standard of review is applicable in this case.- 7 - they can be harmonized so as to effectuate the inte ntion of the parties as e xpressed in the contract considered as a whole, this should be done .” Plunkett v. Plunkett, 271 Va. 162, 168, 624 S.E.2d 39, 42 (2006) (quoting Ames v. American Nat’l Bank of Portsmouth, 163 Va. 1, 39, 176 S.E. 204, 217 (1934)). The AWCA/Surgi-Center amendmen t did not contain the notice provision set forth in the original agreement. Thus, in the event of a c onflict in definitions or provisions between the agreement and the AWCA/Surgi-Center am endment, the plain language of the AWCA/Surgi-Center amendment stat es that it governs. Therefor e, Aetna was not required to provide Surgi-Center with notice of payors to which it extended the benefits of the AWCA/Surgi-Center amendment. 5 Furthermore, Surgi-Center entered the AWCA/Surgi-Center amendment specifically to become a participa ting provider in Aetna’s workers’ compensation network and as part and parcel of that agreement, agreed to accept reduced rates for qualifying payors. Carrier qualified as a payor as of September 1, 2007, when First Health contracted with Aetna to provide its clients with access to AWCA’s reduced rates. To put it simply, carrier had

access to AWCA’s reduced reimbursement rates as a payor prior to Surgi-Center executing the AWCA/Surgi-Center amendment and becomi ng a preferred provider in AWCA. For these reasons, we agree with the Commi ssion’s ruling that the notice requirement in the agreement conflicted with the terms of th e AWCA/Surgi-Center amen dment and that the

5 We note that Carrier qualified as a “Payor” according to the terms of the AWCA/Surgi-Center amendment. As a client of First Health, Carrier was provided access to the AWCA network through the AWCA/Fir st Health agreement. Furthe r, pursuant to the existence of the services agreement and th e AWCA/First Health agreement, carrier qualified as a payor to which Aetna could provide access to Surgi-Ce nter as a participating provider under the AWCA/Surgi-Center amendment at th e time the amendment was executed.- 8 - AWCA/Surgi-Center amendment provi sions prevailed. Therefore, the Commission did not err in holding that the medical bills at issue were properly reduced.

Affirmed.