Va. Hand Ctr. v. Adams Lumber Co.

VIRGINIA HAND CENTER v. ADAMS LUMBER CO., INC. AND BITCO NATIONAL INSURANCE COMPANY

Record No. 0463-20-2

COURT OF APPEALS OF VIRGINIA

NOVEMBER 4, 2020

UNPUBLISHED

Present: Chief Judge Decker, Judges Malveaux and Athey

Argued by videoconference

MEMORANDUM OPINION^* BY CHIEF JUDGE MARLA GRAFF DECKER

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Brian D. Bertonneau (Richmond Law, PLC, on brief), for appellant.

Megan Kerwin Clark (Michael P. Del Bueno; A. Jacob Perkinson; Whitt & Del Bueno, PC, on brief), for appellees.

Virginia Hand Center, a medical provider, appeals the Workers' Compensation Commission's decision applying a 50% reduction to billed charges for certain surgical procedures. Virginia Hand Center argues that in this case the Commission erred by concluding that Code § 65.2-605 subjects multiple procedures to a 50% payment reduction. For the reasons that follow, we conclude that the Commission exceeded the scope of its statutory authority. Consequently, we reverse the Commission's decision and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND¹

On April 12, 2016, Clarence Adams suffered a hand injury while working at Adams Lumber Company. He received an award of lifetime medical benefits for the injury.

Dr. Stephen Leibovic, an employee of Virginia Hand Center, performed surgery on the injured hand the day after the work accident. The surgery involved multiple repairs to fractured bones, nerves, and tendons in the hand.

Virginia Hand Center submitted invoices for the surgery to Adams Lumber Company and its insurer, Bitco National Insurance Company (collectively the employer). The employer paid some but not all of the charges.

The medical provider then filed a claim with the Commission for the unpaid medical fees. In pertinent part, the employer defended on the ground that Code § 65.2-605 required payment of only a reduced rate for the multiple procedures performed during the hand surgery.

Following a hearing, a deputy commissioner decided that "secondary/subsequent" procedures should not be paid in full.² The deputy commissioner concluded that, under existing law, one of the tendon repairs should have been paid in full as a primary procedure but the other procedures at issue were subject to a 50% reduction.

Virginia Hand Center requested review by the Commission, which unanimously affirmed the decision of the deputy commissioner. In doing so, the Commission cited the language of the relevant statute and its previous decision in John-Jules v. Arlington County Schools, JCN VA00001027148 (Va. Workers' Comp. Comm'n Mar. 23, 2017).

II. ANALYSIS

The medical provider argues that the Commission erred by ruling that in this specific case multiple procedures are subject to a 50% payment reduction under Code § 65.2-605.

Resolution of this issue requires statutory construction consistent with well-established legal principles. Interpreting a statute and applying the plain meaning of statutory language is a question of law subject to de novo review. See Paramont Coal Co. Va., LLC v. McCoy, 69 Va. App. 343, 352 (2018) (citing RGR, LLC v. Settle, 288 Va. 260, 294 (2014)). Appellate courts "assume that the General Assembly chose, with care, the words it used in enacting the statute" at issue. See City of Richmond v. Va. Elec. & Power Co., 292 Va. 70, 75 (2016) (quoting Kiser v. A.W. Chesterton Co., 285 Va. 12, 19 n.2 (2013)). For this reason, courts are bound by the plain meaning of a statute unless applying this principle "would lead to an absurd result." Jones v. Commonwealth ex rel. Von Moll, 295 Va. 497, 502 (2018) (quoting Commonwealth v. Barker, 275 Va. 529, 536 (2008)). Consistent with this standard, "[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction." Ford Motor Co. v. Gordon, 281 Va. 543, 549 (2011) (quoting Meeks v. Commonwealth, 274 Va. 798, 802 (2007)). Further, a "court may not 'add to the words' of a statute." Berglund Chevrolet, Inc. v. Va. Dep't of Motor Vehicles, 71 Va. App. 747, 753 (2020) (quoting Baker v. Commonwealth, 278 Va. 656, 660 (2009)).

Turning to the instant case, Code § 65.2-605 governs an employer's obligation for payment of medical services. At the time of the disputed services, the parties could contract for the fee amount or follow the prevailing community rate. Code § 65.2-605(B)(1) (2012 & Supp.2016); 2016 Va. Acts. chs. 279, 290 (providing in section 5 that due to an emergency, the amendments took effect immediately upon passage).³

Also at that time, Code § 65.2-605 provided as follows:

Multiple procedures completed on a single surgical site associated with a medical service . . . shall be coded and billed with appropriate [Current Procedural Terminology (CPT)] codes and modifiers and paid according to the National Correct Coding Initiative rules and the CPT codes as in effect at the time the health care was provided to the claimant. . . . The CPT code and National Correct Coding Initiative rules, as in effect at the time a medical service was provided to the claimant, shall serve as the basis for processing a health care provider's billing form or itemization for such items as global and comprehensive billing and the unbundling of medical services.

Code § 65.2-605(M)-(N).

Current Procedural Terminology, or CPT, developed by the American Medical Association, contains a list of codes for medical procedures and services. Am. Med. Ass'n, Current Procedural Terminology v (Jay T. Ahlman et al. eds., 2016 pro. ed. 2015) [hereinafter CPT]. Its purpose "is to provide a uniform language that will accurately describe medical, surgical, and diagnostic services." Id. The goal is for the uniform language to enable effective communication among "physicians, patients, and third parties." Id.

An additional publication, the National Correct Coding Initiative Policy Manual for Medicare Services, or the NCCI, was developed by the Center for Medicare and Medicaid Services to promote correct medical coding. Ctrs. for Medicare & Medicaid Servs., Dep't of Health & Hum. Servs., National Correct Coding Initiative Policy Manual for Medicare Services intro., at 2 (rev. ed. 2016), https://www.cms.gov/Medicare/Coding/NationalCorrectCodInitEd/NCCI-Manual-Archive [hereinafter NCCI]. The NCCI was established in part to complementthe implementation of the Medicare Physician Fee Schedule to "assure that uniform payment policies and procedures were followed by all carriers." Id. "[I]nitially . . . for use by Medicare carriers," the NCCI was developed "for application to Medicare services billed by a single provider for a single patient on the same date of service." Id. intro., at 3, 5. The goals are "encouraging consistent and correct coding and reducing inappropriate payment." Id. intro., at 5-6. The NCCI focuses on when multiple services should or should not be reported separately. Id. intro., at 2-3.

Relevant here, CPT and the NCCI, both specifically referenced in Code § 65.2-605, recommend applying a different payment methodology for a procedure performed jointly with another than for a procedure performed alone. This disparate treatment is justified because "[w]hen multiple procedures are performed at the same patient encounter, there is often overlap of the pre-procedure and post-procedure work." NCCI ch. I, at 12. One goal of the NCCI guidelines is "to prevent payment for codes that report overlapping services except in those instances where the services are 'separate and distinct.'" Id. ch. I, at 22.

The guidelines further state that a provider performing additional procedures at the same anatomic site during a single patient encounter should assign a special modifier to the CPT code. CPT 709; NCCI ch. I, at 22, 25 (noting that the term "different anatomic sites" includes different organs, anatomic regions, or lesions in the same organ, but not "treatment of contiguous structures of the same organ"). A modifier is another number attached to a CPT code that gives additional information about the procedure provided. CPT 709. Modifier 51 is appropriate when multiple procedures are performed during the same session and by the same provider. Id. CPT provides guidelines for coding for multiple procedures, but it does not give any guidance on how to bill for such procedures. See id. In contrast, the NCCI does contain some payment provisions for multiple procedures performed at a single surgical site. For example, the NCCI provides alist of pairs of CPT codes for which, if reported together, only one "is eligible for payment." NCCI ch. I, at 6.

In the instant case, Virginia Hand Center does not contest the Commission's conclusion that modifier 51 applies but argues that neither CPT nor the NCCI provides for a 50% reduction for the additional procedures. The parties agree that the 50% reduction is not in CPT or the NCCI but, instead, is a standard taken from the Medicare Claims Processing Manual. See Ctrs. for Medicare & Medicaid Servs., Dep't of Health & Hum. Servs., Pub. No. 100-04, Medicare Claims Processing Manual ch. 23 add., at 9-10 (transmittal 3144 Dec. 5, 2014), https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R3144CP.pdf [hereinafter the Medicare Claims Manual].

Virginia Hand Center argues that because the Medicare Claims Manual is not specifically incorporated into CPT or the NCCI, it is likewise not incorporated into the statute. The employer responds that neither set of guidelines provides a particular payment structure and suggests that the Commission correctly concluded that the Medicare Claims Manual is the appropriate vehicle through which to determine the correct payment methodology.

At the time of the appellant's surgery, the language of the applicable statute provided that charges for medical services generally could not exceed the prevailing community rate. Code § 65.2-605(B). The statute further provided, in pertinent part, that multiple surgical procedures...