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Wiggins v. Fairfax Park Limited Partnership5/14/1996
OPINION BY JUDGE CHARLES H. DUFF
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 ยง 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 fre
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