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No jurisdiction over claim against employer and insurer

Virginia Lawyers Weekly//July 27, 2020

No jurisdiction over claim against employer and insurer

Virginia Lawyers Weekly//July 27, 2020

The Workers’ Compensation Commission correctly determined that it lacked jurisdiction to hear a claim by a medical provider against a shipyard and its insurer for payment of services rendered to the shipyard’s employee.

“[T]his case is controlled by the published opinion issued this day in Wardell Orthopaedics, P.C. v. Colonna’s Shipyard, Inc, ___ Va. App. ___ (July 14, 2020), which addressed identical issues, and affirm the Commission’s ruling.”


“The evidence established that Alonza Martin sustained a compensable injury by accident on May 26, 2005, while working for employer. The Commission entered an award for lifetime medical benefits and periods of temporary total disability on July 12, 2006. Payments totaling $8,900.81 were made to provider under the Longshore and Harbor Workers’ Compensation Act (‘LHWCA’).

“Provider filed an application with the Commission on November 19, 2018, seeking an alleged underpayment of $28,494.19 for medical services rendered to Martin on June 28, 2006, and requesting an evidentiary hearing. On May 8, 2019, a hearing was set for July 8, 2019. Employer moved to dismiss on July 2, 2019.

“Employer argued that under Code § 65.2-605.1(G), which became effective July 1, 2019, the Commission lacked subject-matter jurisdiction over the claim. The Commission denied the motion and continued the hearing; employer renewed the motion to dismiss on July 16, 2019. Provider did not respond to the motion.

“The deputy commissioner held an on-the-record hearing on July 31, 2019, and concluded that the Commission lacked jurisdiction over provider’s claim. Provider sought review by the full Commission, which affirmed the deputy’s ruling on December 9, 2019. This appeal followed.”

Controlling precedent

“As did the medical provider in Wardell, provider argues that the legislature intended the word ‘adjudicate’ in Code § 65.2-605.1(G) to mean ‘commence’ a legal proceeding, and thus subsection G does not apply in this case because provider had submitted its claim in November 2018 before the statute took effect.

“However, as the Court determined in Wardell, provider did not make this same argument before the Commission and cannot raise it for the first time on appeal. …

“Provider also argues that it did not ‘accept’ payment under the LHWCA, and thus the Commission misapplied Code § 65.2-605.1(G). The Wardell Court rejected this same argument[.] … Provider’s argument also fails because the record establishes that provider accepted payment under the LHWCA. …

“Finally, provider argues that applying Code § 65.2-605.1(G) retroactively to its claim violates its due process and substantive rights under Article I, Section 11 of the Virginia Constitution. The Wardell Court also rejected this argument, holding that the statute addresses a procedural remedy and ‘contain[s] an expression of retrospective legislative intent.’”


Neurosurgical Specialists, Inc. v. Huntington Ingalls, Inc., et al., Record No. 0076-20-1, July 14, 2020. CAV (Clements) from the Virginia Workers’ Compensation Comm’n. Philip J. Geib for appellant, Christopher R. Hedrick for appellees. VLW 020-7-154, 7 pp. Published.

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