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.
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. 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
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. 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
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.
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
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.
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
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
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
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
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
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 thephysician/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
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,
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.
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.