Your Health Care Providers Must Turn Over Records to Help You Win Your Workers Compensation Claim in Virginia
You must have supportive medical records to win your claim for workers’ compensation benefits in Virginia. Because an injured worker bears the burden of proof on initial claims for workers’ comp benefits, you must produce medical records related to treatment of your workplace injury. If you don’t, then you will fail to meet your burden of proof under Virginia workers compensation. Mika v. Sears, Roebuck & Co., No. 0540-96-2 (Ct. of Appeals Feb. 18, 1997).
I recommend obtaining helpful records and reports from your health care providers before you even file a workers comp claim. If the medical evidence is on your side then you have a better chance of being offered an award agreement form or workers compensation settlement without having to go to a hearing before the Virginia Workers Compensation Commission.
But obtaining medical reports in workers compensation discovery can be difficult and expensive. Most doctors, surgeons, and therapists are busy. Pulling your file and sending you medical reports isn’t a priority for them. It’s a hassle and not how they make money and keep their practice open.
Fortunately Section 65.2-604 of the Virginia Code provides help to injured workers trying to get their medical reports. This statute provides:
A. Any health care provider attending an injured employee shall, upon request of the injured employee, employer, insurer, or a certified rehabilitation provider … furnish a copy of any medical report to the injured employee, employer, insurer, or a certified rehabilitation provider … upon request for such medical report.
B. Whenever any health care provider attending an injured employee refers the employee or transfers responsibility for his care to another health care provider, the referring or transferring provider, upon receipt of a request therefor, shall promptly transfer or cause to be transferred to the new or succeeding provider, or to the employee … copies of all diagnostic test results, x-ray photographs, and other medical records pertaining to the employee’s injury for which further treatment is to be sought from the succeeding provider.
This statute also applies to independent expert witnesses retained by the Workers’ Compensation Commission. If the Commission asks an independent doctor – that is, a doctor not chosen by the employee or the employer – to examine the employee, then the independent doctor must turn over all his work product. This includes X-rays, MRI reports, office notes, and any other test results. The reason for this rule is that the employer and employee may want to use the underlying work product to cross examine the independent expert witness if that witness provides unfavorable evidence.
Does the Treating Physician Have to Complete a Physical Capacities Form?
In addition to providing medical records, an authorized treating physician in a workers compensation case must also complete a physical capacities form for the purpose of determining whether you have work restrictions related to your industrial accident. Gardner v. Legum Home Health/Home L.V. Care and Nutritional Service, 74 O.W.C. 97 (1995).
If a treating physician is not cooperating with your attorney’s efforts to get this form completed, it is not always in your best interest to ask for the Commission’s help. The treating physician may not think you have any work restrictions. Or he or she may not provide a supportive opinion if you ask for the Commission to intervene.
What about Health Records that are Unrelated to the Work Injury?
It’s possible that your authorized treating physician may be your primary care provider or an orthopedic surgeon who treated you in the past for a medical condition or injury unrelated to your work injury. If so then both you and the employer are entitled to all medical records from that health care provider – even those which may be unrelated to your work injury. The health care provider is not allowed to pick and choose which of his or her records may relate to your work injury before responding to a request for records or a subpoena duces tecum.
This is important because it means that the employer and insurer are likely to find out about any prior injuries and medical treatment. So be honest with your attorney and forthcoming about past medical problems. You can still win your claim even if you have a preexisting condition affecting the same body part injured in the work accident.
What Happens if the Treating Physician Refuses to Provide Medical Records to the Employer and Insurer?
If a physician or health care provider fails to produce medical records and reports to the employer and insurer within a reasonable time, then the employer and insurer may not have to pay the doctor for services rendered. This is true even if you prove that you suffered a compensable injury by accident. The employer and insurer can also ask for a change of physicians if the approved treating physician has a pattern of not cooperating with requests for information about your treatment. Parks v. Systems Engineering Associates Corp., 66 O.I.C. 104 (1987).
Though this Commission decision impacts treating physicians more than injured workers, it can be a problem if your physician is supportive of your case on issues of disability and causation and the employer and insurer try to replace that physician with a health care provider who may not be as helpful.
Have a question about Virginia workers compensation? Then call, text, or e-mail Corey Pollard today. As a Norfolk workers compensation lawyer and Fairfax workers comp attorney, I’ve helped hundreds of injured workers and their families get a successful resolution in their case and qualify for Social Security disability if they’re unable to return to work. And I want to help you.