Larry T. Wiggins v Fairfax Park Ltd. Partners etal

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judge Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
LARRY T. WIGGINS
v. 	Record No. 	1542-95-4 	OPINION BY
JUDGE CHARLES H. DUFF
FAIRFAX PARK LIMITED PARTNERSHIP 	MAY 14, 1996
AND
EMPLOYERS MUTUAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Peter M. Sweeny (Peter M. Sweeny &
Associates, P.C., on briefs), for appellant.
Benjamin J. Trichilo (Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on brief),
for appellees.
Larry T. Wiggins ("claimant") appeals a decision of the
Workers' Compensation Commission granting an application filed by
Fairfax Park Limited Partnership ("employer") and Employers
Mutual Casualty Company seeking a change in claimant's treating
physicians. 	Claimant contends that the commission erred in (1)
finding that the physician/patient privilege is statutorily
waived for any actions brought under the Workers' Compensation
Act ("the Act"); and (2) requiring him to choose a new treating
physician from a panel offered by employer on the ground that his
current treating physicians failed to comply with their
obligation to produce medical records pursuant to Code
§ 65.2-604. 	Finding no error, we affirm the commission's
decision.

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I. BACKGROUND
On June 17, 1991, claimant sustained a compensable back
injury while working for employer. 	A July 16, 1991 MRI revealed
that claimant sustained a herniated disc at L4-L5.1 On August
23, 1991, based upon a memorandum of agreement executed by the
parties, the commission entered an award for temporary total
disability and medical benefits.
Claimant sought medical treatment from Dr. Paul McClain, a
physician employed by Capital Area Permanente Medical Group
("CAPMG"), which provides medical services to the patients of
Kaiser Permanente Medical Center ("Kaiser"). 	On November 8,
1991, employer's insurance adjusters, Love, Barnes and McKew,
("insurer"), sent a letter to Kaiser requesting an updated
medical report concerning claimant's condition. 	Insurer informed
Kaiser that it had only received medical records concerning
claimant's treatment through September 5, 1991, but nothing
thereafter. 	Receiving no response to its November 8, 1991
letter, insurer renewed its request to Kaiser on December 11,
1991. 	The record does not show whether insurer received a
response from Kaiser at that time.
In December 1991, Dr. McClain referred claimant to Dr.
Robert Martuza, a neurologist, employed by Georgetown University
Medical Center ("Georgetown"). 	On June 3, 1992, a rehabilitation
1The commission did not receive a copy of the MRI report until
November 8, 1994.

3
nurse employed by Vocational Rehabilitation Services, Inc.
("VRS"), which insurer hired to provide rehabilitation services
to claimant, wrote to Dr. Martuza. 	In her letter, the VRS nurse
requested that Dr. Martuza send all medical reports concerning
claimant's treatment to insurer and VRS.
On June 22, 1992, Grace Chow, a vocational rehabilitation
consultant employed by VRS, met with Dr. Martuza. 	Dr. Martuza
indicated that claimant should not return to any work involving
heavy lifting or straining. 	On September 14, 1992, Dr. Martuza
performed a Baseline Physical Capabilities Evaluation on
claimant.2 Dr. Martuza opined that claimant functioned below a
sedentary level, and Dr. Martuza recommended work hardening. 	On
October 19, 1992, Dr. Martuza referred claimant back to Dr.
McClain.
On November 23, 1992, Chow sent a letter to Dr. McClain,
enclosing a physical capabilities form and requesting that Dr.
McClain complete the form and return it to VRS. 	In his December
13, 1992 response, Dr. McClain set forth specific restrictions
for claimant. 	However, Dr. McClain did not complete the portion
of the form indicating whether claimant could work full or part-
time and the number of hours claimant could work. 	Dr. McClain
concluded that claimant had not reached maximum medical
improvement ("MMI"). 	His target date for MMI was 1996. 	Claimant
2The commission did not receive a copy of this evaluation until
November 8, 1994.

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would be reevaluated at that time.
In January and August 1993, claimant underwent independent
medical examinations ("IMEs") with Dr. Anthony Debs. 	On
September 30, 1993, Dr. Debs recommended that claimant return to
his pre-injury work, but that he avoid frequent bending and
stooping. 	Dr. Debs also recommended that claimant not lift more
than twenty-five to thirty pounds and that he might benefit from
work hardening.
On June 15, 1993, Dane C. Crook, a branch manager employed
by VRS, wrote to Dr. McClain, informing him that VRS was
insurer's authorized representative. 	Crook also informed Dr.
McClain that VRS was responsible for determining the medical
readiness of claimant to participate in vocational rehabilitation
services. 	Crook requested that Dr. McClain furnish an updated
physical capabilities form, because Dr. McClain had not
thoroughly completed the first form. 	Crook also asked Dr.
McClain to indicate whether claimant would benefit from work
hardening, per Dr. Debs' recommendation.
On June 29, 1993, Dr. McClain completed another physical
capabilities form, indicating that claimant could perform
sedentary work, but that claimant could not return to full or
part-time work at that time. 	Dr. McClain did not respond to
Crook's question concerning work hardening. 	Once again, Dr.
McClain indicated that claimant had not reached MMI, and that he
would be reevaluated in 1996.

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On September 13, 1993, the insurer wrote to claimant's
counsel, offering claimant a panel of physicians. 	On October 22,
1993, the insurer again wrote to claimant's counsel, urging
claimant to seek treatment with one of its panel physicians and
advising him that "unless Kaiser Permanente provides our office
with progress reports on a timely basis regarding any treatment
to Mr. Wiggins, we will not place their bills in line for
payment."
Claimant's counsel responded to the insurer on October 26,
1993, suggesting that the insurer reconsider its position and
allow claimant to continue his medical treatment with Drs.
McClain and Martuza. 	The insurer responded to claimant's counsel
that it was only refusing to pay for Dr. McClain's treatment
because he failed to provide current medical reports and respond
to questions regarding claimant's ability to work. 	Insurer
suggested that claimant cooperate with Maggie Norton, the
vocational specialist employed by VRS, and that he choose a
physician from the previously offered panel, since any other
treatment would be unauthorized.
On November 22, 1993, claimant's counsel responded,
indicating his belief that Dr. McClain had responded to all of
insurer's requests for medical information. 	Claimant's counsel
requested that insurer document the specific instances when Dr.
McClain had not complied with their requests. 	Claimant's counsel
also contended that vocational rehabilitation services were

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inappropriate because claimant's treating physicians had not
released him to any work. 	Claimant refused to select a physician
from the panel.
On December 13, 1993, insurer responded to claimant's
counsel, stating that it had not received any medical records
from Dr. Martuza indicating that claimant was totally disabled.
The insurer again reiterated that "[p]er the advise of counsel,
we will provide you with a panel of physicians since Dr. McClain
failed to provide us with any information concerning your
client's condition and work capabilities." 	The insurer also
requested that Dr. McClain provide reports regarding any
examination of claimant after January 1992, any progress notes
for each examination, and current restrictions placed upon
claimant's ability to work. 	The insurer stated that the
attending physician's report provided by Dr. McClain did not
sufficiently respond to its questions.3
On February 9, 1994, employer filed an application for
hearing, requesting that the commission require claimant to seek
medical treatment from one of the panel physicians offered to him
3Dr. McClain's January 6, 1992 attending physician's report
indicated that he sent medical reports on December 18, 1991 and
that he had examined claimant on September 9, 1991, September 17,
1991, September 23, 1991, November 11, 1991 and December 17, 1991.
Dr. McClain indicated that disability was "unknown." 	In his
October 23, 1993 attending physician's report, Dr. McClain
indicated that claimant suffered from a herniated disc and that he
had been referred to Dr. Martuza. 	Dr. McClain indicated that
claimant's disability began June 17, 1991. 	Dr. McClain indicated
that a return to work date would be determined by a pending MRI
and possible surgery.

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on September 13, 1993. 	Employer's application alleged that Dr.
McClain failed to provide medical reports and respond to
insurer's questions concerning claimant's medical status and work
abilities. 	As support for its application, employer attached
copies of the insurer's September 13, 1993 and December 13, 1993
letters to claimant's counsel.
On March 1, 1994, the commission noted that probable cause
existed to docket the application. 	On March 14, 1994, the
application was selected for an on-the-record determination. 	On
March 29, 1994, employer filed a second application, making the
same allegations as in the February 9, 1994 application, but
attaching additional documentation.
On March 25, 1994, Dr. McClain completed an attending
physician's report, indicating that it was "unknown" when
claimant could return to work. 	On April 11, 1994, Norton wrote
to Dr. McClain, requesting copies of all of Dr. McClain's records
relating to his treatment of claimant and his opinion of
claimant's current restrictions. 	Norton did not receive a
response nor did she receive a copy of Dr. McClain's March 25,
1994 attending physician's report.
On May 10, 1994, Norton faxed a copy of her March 10, 1994
letter to Dr. McClain's office, requesting a response. 	Norton
did not receive the form back from Dr. McClain. 	Instead, she
received his handwritten progress notes dated November 16, 1992
through March 25, 1994. 	The notes did not indicate claimant's

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work capacity.
On March 10, 1994, Norton also wrote to Dr. Martuza,
requesting he complete a physical capabilities form. 	She did not
receive a response, and, on May 10, 1994, she faxed another copy
of her letter of Dr. Martuza's office. 	Norton did not receive
any response from Dr. Martuza.
On November 4, 1994, Norton wrote another letter to Dr.
Martuza, enclosing another physical capabilities form for him to
complete, and asking him to address specific questions. 	Norton's
office received a response to this letter on November 11, 1994,
the date of the hearing. 	Dr. Martuza did not specifically answer
Norton's questions and did not thoroughly complete the form.
Although Dr. Martuza indicated that claimant could perform
sedentary work, he also indicated that claimant's restrictions,
and whether he could work full or part-time, would have to be
determined by vocational rehabilitation. 	Dr. Martuza stated that
he could not be certain if claimant had reached maximum medical
improvement.
On July 18, 1994, employer deposed Dr. McClain. 	During the
deposition, claimant's counsel objected when employer's counsel
wanted to view claimant's entire medical file. 	Claimant's
counsel contended that reports for unrelated treatment might be
in the file. 	In addition, Dr. McClain refused to allow
employer's counsel to view the file. 	Kaiser's legal department
informed employer's counsel, during the deposition, that before

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he could look at the file, he needed a signed authorization from
claimant or a subpoena. 	Subsequently, employer's counsel
subpoenaed these medical records. 	However, they were not
produced before Dr. McClain's second deposition, scheduled for
August 10, 1994, nor did Dr. McClain arrive at the deposition
with claimant's medical file.
During the second deposition, after conversations with
Kaiser's legal department, Dr. McClain stated that he had no
authority to copy or send any medical records. 	In August 1994,
Georgetown also refused to release claimant's medical records to
employer's counsel without a patient authorization or compulsory
process valid in the District of Columbia. 	Claimant ultimately
signed a release for these records, which were filed with the
commission on November 8, 1994.
On December 9, 1994, at Dr. McClain's rescheduled
deposition, he maintained that he was not responsible for
claimant's medical records because they were maintained by
Kaiser. 	Dr. McClain and Kaiser's counsel stated that medical
files could not be released without the patient's consent, a
subpoena duces tecum, or intervention from the company's legal
department.
On November 14, 1994, Deputy Commissioner Colville found
that employer was justified in seeking a change in treating
physicians. 	The deputy commissioner's decision was based upon
the physicians' refusals to comply with Code §§ 65.2-604(A) and

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65.2-607(A), pertaining to supplying medical records upon request
to employer and insurer. 	The full commission affirmed, finding
that Drs. McClain and Martuza, and Kaiser and Georgetown, failed
to perform their statutory duty to provide timely and complete
medical reports under Code § 65.2-604(A).
II. 	PHYSICIAN/PATIENT PRIVILEGE
Citing Code § 65.2-607(A), the full commission held that
"[t]he physician-patient privilege is statutorily waived for any
actions brought under the Act." 	Code § 65.2-607(A) provides in
its pertinent part:
After an injury and so long as he claims
compensation, the employee, if so requested
by his employer or ordered by the Commission,
shall submit himself to examination, at
reasonable times and places, by a duly
qualified physician or surgeon designated and
paid by the employer or the Commission. . . .
The employee shall have the right to have
present at such examination any duly
qualified physician or surgeon provided and
paid by him. 	No fact communicated to, or
otherwise learned by, any physician or
surgeon who may have attended or examined the
employee, or who may have been present at any
examination, shall be privileged, either in

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hearings provided for by this title, or any
action at law brought to recover damages
against any employer subject to the
provisions of this title.
Claimant argues that Code § 65.2-607(A) only waives the
physician/patient privilege as to information derived from
independent medical examinations and does not support the
commission's finding that the physician/patient privilege is
statutorily waived as to any physician and for any action brought
under the Act. 	This issue appears to be one of first impression
in Virginia.
The commission's construction of the Act is entitled to
great weight on appeal. 	City of Waynesboro Sheriff's Dep't v.
Harter, 1 Va. App. 265, 269, 337 S.E.2d 901, 903 (1985). 	General
rules of statutory construction provide that, "'[i]f the language
of a statute is plain and unambiguous and its meaning perfectly
clear and definite, effect must be given to it regardless of what
courts think of its wisdom or policy.'" 	Long v. Commonwealth, 7
Va. App. 503, 506, 375 S.E.2d 368, 369 (1988) (per curiam)
(quoting Temple v. City of Petersburg, 182 Va. 418, 423, 29
S.E.2d 357, 358 (1944)). 	"Unless a literal construction of a
statute would result in internally conflicting provisions
amounting to a 'manifest absurdity,' courts cannot construe a
statute in a manner that would result in holding the legislature
did not mean what it actually expressed." 	Last v. Virginia State

12
Bd. of Medicine, 14 Va. App. 906, 910, 421 S.E.2d 201, 205
(1992).
The literal construction of Code § 65.2-607(A) does not
limit the waiver of the physician/patient privilege to facts
communicated or learned by a physician only during an IME. 	The
plain language dictates that any facts communicated to or learned
by "any" physician who may have "attended or examined" the
claimant "or" been present at any examination are not privileged
in any hearings under the Act or actions at law. 	Thus, following
general rules of statutory construction, we hold that the
commission did not err in finding that Code § 65.2-607(A) waives
the physician/patient privilege as to all physicians and in all
proceedings under the Act.
The commission's ruling is also consistent with the language
of Code § 8.01-399(B). 	Code § 8.01-399(B) provides a qualified
statutory physician/patient privilege expressly reserved for
civil proceedings. 	However, medical reports of a plaintiff in a
civil action are not protected by the physician/patient privilege
if the plaintiff's physical or mental condition is in issue.
City of Portsmouth v. Cilumbrello, 204 Va. 11, 15, 129 S.E.2d 31,
34 (1963); see also Code § 8.01-399(B). 	Moreover, Code
§ 8.01-399(C)(i) provides that Code § 8.01-399 does not repeal or
otherwise affect the provisions of Code § 65.2-607 related to
privileged communications between physicians and surgeons and
employees under the Act. 	In Pierce v. Caday, 244 Va. 285, 290,

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422 S.E.2d 371, 373 (1992), the Supreme Court cited Code
§ 65.2-607 as one of many examples where the qualified statutory
physician/patient privilege reserved for civil proceedings
pursuant to Code § 8.01-399 does not apply.
Claimant also argues that Code § 65.2-604 allows only the
employer, employee, or insurer to request medical records related
to claimant's condition. 	Claimant argues that this code section
did not give the rehabilitation provider the legal right to
request and demand production of medical records from claimant's
treating physicians without obtaining claimant's consent. 	The
commission did not specifically address this distinction in the
statute. 	We need not address this argument on appeal. 	The
commission's holding is supported by credible evidence, which
showed that the treating physicians refused to produce claimant's
medical records to the employer and insurer pursuant to their
statutory duty to do so under Code § 65.2-604.

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III. 	CHANGE IN TREATING PHYSICIANS
Claimant argues that the commission erred in requiring him
to select a new treating physician on the ground that Drs.
McClain and Martuza, and Kaiser and Georgetown, refused to timely
provide copies of claimant's medical reports to the employer and
insurer upon request. 	Abundant credible evidence in the record
shows that these physicians and medical providers refused to
comply with Code § 65.2-604.
The record contains evidence of numerous instances where
Drs. McClain and Martuza did not timely or thoroughly respond to
the insurer's requests for medical records and information. 	In
addition, Drs. McClain and Martuza and their counsel made it
clear to employer's counsel in depositions and in correspondence
that they would not voluntarily produce copies of their medical
records related to claimant's treatment without a signed patient
authorization, a subpoena, or intervention by counsel. 	This
policy is contrary to the statutory duty imposed upon these
health care providers by Code § 65.2-604. 	Because credible
evidence supports the commission's finding that Drs. McClain and
Martuza were unwilling to meet their statutory duty under Code
§ 65.2-604, the commission did not err in removing them as the
treating physicians and requiring claimant to select a new
treating physician from a panel offered by employer.
For the reasons stated, we affirm the commission's decision.
Affirmed.