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. 
 2 

 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 parttime 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. 
 4 

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. 
 5 

 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 
 6 

 

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. 
 7 

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 
 8 

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 
 9 

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 
 10 

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, 
 13 

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.