COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felt on, Judges Benton and Petty Argued at Richmond, Virginia

NEUROSURGICAL ASSOCIATES, P.C. MEMORANDUM OPINION * BY v. Record No. 2637-06-2 CHIEF JUDGE WALTER S. FELTON, JR. MAY 15, 2007 COUNTY OF HENRICO FINANCE

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Richard A. Hobson (Law Office of Richard A. Hobson, on brief), for appellant. (Ralph L. Whitt, Jr.; Whitt & Del Bueno, on brief), for appellee.

Neurosurgical Associates, P.C. (Neurosu rgical Associates) appeals a Workers’ Compensation Commission (commissi on) decision finding that the County of Henrico (Henrico), a self-insured employer, paid all sums it owed to Neurosurgical Associates for medical care provided to Henrico’s employee for compensabl e injuries under the Workers’ Compensation Act. Specifically, Neurosurgical Associates assert s that Henrico failed to prove it was a party to or “payor” within the pr eferred provider contract between Virginia Health Network (VHN) and Neurosurgical Associates. Henrico asserts that credible evidence established that it contracted with VHN to participate in VHN’s workers’ compensation network and that it was a “participating payor” as de fined in the preferred provi der contract between VHN and Neurosurgical Associates. We affirm the com mission’s decision that Henrico was a “payor” under the contract and paid Neuros urgical Associates an appropriate amount for medical services it provided to Henrico’s injured employee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. BACKGROUND Under well established principles, we view the evidence in the record, as well as all reasonable inferences that may be drawn from th at evidence, in the light most favorable to Henrico, the prevailing party below. Stillwell v. Lewis Tree Service, Inc. , 47 Va. App. 471, 474, 624 S.E.2d 681, 682 (2006). So viewed, the evidence established that Neurosurgical Associates entered into a contract with VHN in 1989 to part icipate in VHN’s medical services network and to accept payment for its services according to a fee schedule. The contract was amended on July 1, 2000, and provided that Neurosurgical Associates agreed to participate in VHN’s workers’ compensation network. Thereafter, Ne urosurgical Associates provided health care services to Henrico’s employee, Jessee Richard Damron, from January 19, 2004, through November 11, 2004, for compensable injuries he sustained in a work-related accident. Neurosurgical Associates billed Henrico $18,425 for those medical services. Henrico paid $9,107 of the billed $18,425 as payment in full pursuant to the VHN maximum allowable fee schedule. Neurosurgical Associates filed an application with the commission for a hearing on the record, 1 contending that Henrico unjustifiably refused to pay the remaining $9,318 balance

due for medical services it re ndered to Henrico’s employee. Following a hearing on the record, Deputy Co mmissioner Link ruled that Henrico paid Neurosurgical Associates the appropriate amount for its medical services pursuant to VHN’s fee schedule. The deputy commissioner determined that Neurosurgical Associates contracted with VHN to participate in VHN’s workers’ comp ensation network and to accept fees from participating payors as provided in VHN’s fee schedule. The deputy commissioner found that

1 See Rule 2.1, Rules of the Virginia Work ers’ Compensation Commission (“When it appears that there is no material fact in disput e as to any contested issue, determination will proceed on the record. After each party has been given the opportunity to f ile a written statement of the evidence supporting a claim or defense, the Commission shall enter a decision on the record.”).- 3 - Henrico, a participating payor, pa id Neurosurgical Associates according to the fee schedule and that the payments were in an appropriate am ount within the prevaili ng community standard. 2 The full commission affirmed the deputy commissioner’s decisi on. It rejected Neurosurgical Associates’ argument that the de puty commissioner erroneously considered as

evidence the contract between VHN and Neurosurgical Associates that Henrico submitted with its position statement. The commission ruled that, consistent with Rule 2.1(A) of the Rules of the Virginia Workers’ Compensation Comm ission, Henrico timely submitted its position statement and supporting documentary evidence, including the preferre d provider contract between VHN and Neurosurgical Associates, for the commission’s review on the record. It also found that Neurosurgical Associat es “did not ask to cross-exam ine this documentation, provide its own evidence, or reques t an evidentiary hearing.” The commission found that the preferred pr ovider contract be tween Neurosurgical Associates and VHN required Neurosurgical Associ ates to “accept as compensation in full from Payor for services rendered pursuant to any Prefe rred Provider Arrangement payments . . .” and that “[p]hysician shall be compensated on a f ee-for-service basis in accordance with the VHN

Maximum Allowable Fee Schedule . . . .” The preferred provider contract also precluded balance billing. The commission also found that Henrico contracted wi th VHN for bill review, was a “participating payor” as defined by th e preferred provider contract between VHN and Neurosurgical Associates, and that Henrico’s payments to Neuros urgical Associates adhered to the fee schedule Neurosurgical Associates cont racted to accept. This appeal followed.

2 The deputy commissioner’s finding that the payments by Henrico were within “the prevailing community standard” is not before us on appeal.- 4 - II. ANALYSIS On review by this Court, “‘ [d]ecisions of the commission as to questions of fact, if supported by credible evidence, are conclusive and binding upon this Court.’” VFP, Inc. v. Shepherd , 39 Va. App. 289, 292, 572 S.E.2d 510, 511 ( 2002) (quoting WLR Foods v. Cardosa , 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)). As th e finder of fact, “[t]he commission [is] privileged to draw . . . reasonable inferen ce[s] from the evidence.” Buzzo v. Woolridge Trucking, Inc. , 17 Va. App. 327, 333, 437 S.E.2d 205, 209 (1993). When it does so, “[t]hat

action of the commission is a fi nding of fact subject to the cred ible evidence standard.” Id. On appeal, Neurosurgical Associ ates contends that “nothing in the record . . . establishes that there existed a ‘Participa ting Payor Agreement’ between [Henrico] and VHN . . . .” It argues that because the contract itself between VHN and Henrico was not a part of the record reviewed by the commission, the commission coul d not find that Henric o was contractually entitled to pay Neurosurgical Associates at the rates set forth in the VHN fee schedule. We hold these arguments to be without merit. The commission found that Henrico was a “p articipating payor” w ithin the preferred provider contract between Neuros urgical Associates and VHN. The evidence in the record supports this finding. The prefer red provider contract was revi ewed by the commission pursuant to Commission Rule 2.1 and properl y made part of the record. 3 That preferred provider contract

states: For the purposes of this Agreement, the term “Preferred Provider Arrangement” shall mean a group hea lth care policy or agreement marketed by an insurance company, health maintenance organization or other payor (“Payor”) to employer groups, or if Payor is a self-insured employer or governmental entity, offered by Payor to its employees

.

3 The preferred provider cont ract between Neurosurgical Associates and VHN was made a part of the record on review before the deputy commissioner afte r being produced pursuant to a subpoena issued by Henrico.- 5 - * * * * * * * VHN will negotiate and enter into agreements with Payors for the provision of services to Covere d Persons (“Participating Payor Agreements”). VHN agrees to use its best efforts to market its provider network to Payors. Physician hereby appoints VHN as its agent to enter into such Par ticipating Payor Agreements and authorizes VHN to offer such Payor(s) . . . the provision of physician services . . . . * * * * * * * Physician agrees to accept as compensation in full from Payor for services rendered pursuant to any Preferred Provider Arrangement payments made in accordance with the provisions set forth in [the maximum allowable fee schedule]

. . . . (Emphasis added). Although the actual particip ating payor contract document between VHN and Henrico was not part of the record reviewed by the comm ission in its hearing on the record, there is

credible evidence in the record from which the commission could reasonably conclude that Henrico contracted with VHN to participate in VHN’s workers’ compensation network as a “participating payor.” The r ecord contains a lette r VHN sent to Neurosurgical Associates seeking to expand Neurosurgical Associates’ preferred provider contract to include workers’ compensation business. That letter specifically provided, “VHN contracts with the County of

Henrico . . . for Workers’ Compensation business.” The record also contains five invoices on VHN letterhead, noting the “VHN Claim Rec. No .” for statements from Neurosurgical Associates to Henrico seeking payment for me dical services to Henrico’s employee for his injuries. Each of the invoices demonstr ates that VHN reviewed the fees charged by Neurosurgical Associates and adjusted the f ees owed by Henrico in accordance with the VHN fee schedule. Additionally, each of these invoices listed Henrico as the “payer” and “client” of VHN. Henrico paid for its employee’s medical ca re in accordance with the agreed fee schedule.- 6 - The commission specifically ruled that this evidence proved “Henrico County was

contracted with VHN for bill review and was a Payor as defined in the contract at the time

services were rendered.” Credible evidence supports the commission’s findings that VHN had a contractual relationship with Henr ico and that VHN adjusted the fees Henrico, as payor, owed Neurosurgical Associates to comply with its fee schedule.

III. CONCLUSION From the record presented to us on appeal, we conclude that Neur osurgical Associates’ agreement with VHN authorized VHN to enter into contracts with “participating payors” and required Neurosurgical Associates to accept fees for its medical services in accordance with the VHN fee schedule as payment in full. We hold th at there is credible evidence in the record demonstrating that Henrico entered into a “p articipating payor” cont ract with VHN. We, therefore, affirm the commission’s decision th at Henrico paid Neur osurgical Associates appropriate fees for medical se rvices Neurosurgical Associat es provided to its employee.

Affirmed.