OF JUDGMENT: 08/03/2016
MISSISSIPPI WORKERS' COMPENSATION
ATTORNEYS FOR APPELLANT: ROGEN K. CHHABRA DARRYL MOSES GIBBS
CAROLINE JANE SCOTT AMANDA GRACE HILL RAYNETRA LASHELL
ATTORNEYS FOR APPELLEES: KARL R. STEINBERGER STACIE ELIZABETH
ZORN WALTER T. JOHNSON WILLIAM ABRAM ORLANSKY
The Mississippi Workers' Compensation Commission denied
Charles Wright's claim for disability benefits after
finding that he failed to meet his burden of proving a causal
connection between his employment and a disabling condition.
On appeal, Wright argues that the Commission's decision
should be reversed because it is not supported by substantial
evidence. Wright also argues that the Commission erred by
quashing a subpoena that he served on Dr. Rahul Vohra, who
had performed an employer's medical examination (EME) in
this case. The subpoena sought documents and other
information concerning Dr. Vohra's compensation in an
effort to demonstrate bias. Wright further argues that the
Commission erred by denying his motion to exclude Dr.
Vohra's testimony after Dr. Vohra refused to answer
deposition questions on matters covered by the subpoena.
Finally, Wright argues that the Commission erred by ordering
his attorney to pay Dr. Vohra's attorney's fees and a
$5, 000 "civil penalty" as sanctions for the
subpoena and deposition questioning of Dr. Vohra.
We hold that the Commission's decision is supported by
substantial evidence and that the Commission did not commit
any reversible error by quashing the subpoena or by denying
Wright's motion to exclude Dr. Vohra's testimony.
Therefore, we affirm the Commission's decision denying
Wright's claim for benefits. However, we hold that the
Commission erred by sanctioning Wright's attorney.
Therefore, we reverse and render the Commission's
imposition of a civil penalty and award of attorney's
AND PROCEDURAL HISTORY
Wright worked as an auto mechanic at Turan Foley Motors in
Gulfport. He had forty- two years of experience in the
industry and specialized in front suspension. Wright
testified that on Friday, October 25, 2013, he was busier and
his work was more strenuous than usual because General Motors
was having "vibration issues" in some of its newer
vehicles. The next morning, he woke up with pain in his back
and knees, and his right knee was swollen. Wright was not
scheduled to work that weekend, but he went in to work and
left a note to report the injury. Wright did not experience
any fall, accident, or other traumatic event at work, but he
assumed that the pain and swelling were caused by the strain
of his work. On Monday, October 28, Wright went to see his
pain management doctor, Dr. Brian Dix. Wright had been seeing
Dr. Dix for back and knee pain three to four times a year for
several years, and he had already scheduled an appointment
with Dr. Dix for October 28 prior to his alleged injury on
After seeing Dr. Dix, Wright continued working at Turan Foley
without restriction. On December 5, 2013, Wright reported
that he felt a sharp pain in his left knee as he was sliding
out from underneath a car. Wright did not see a doctor about
his knee until his next regularly scheduled appointment with
Dr. Dix on January 14, 2014. Wright next went to see an
orthopedist, Dr. George Salloum, in April 2014.
Wright testified that after the December 5, 2013 incident,
his knees became too painful to continue working, and he
retired on December 18, 2013, at the age of fifty-nine.
However, another employee, Ken Monroe, testified that Wright
was already planning to retire by at least November.
Wright's supervisor, Ken Riverbank, testified that Wright
did not mention any physical problems when he told Riverbank
that he was retiring.
On September 16, 2014, Wright filed a petition to controvert,
alleging that he suffered compensable injuries to his back
and lower extremities in October 2013. Turan
Foley denied that Wright had suffered any
compensable injury, and the case proceeded to a hearing on
the merits of Wright's claim, held before an
Administrative Judge (AJ) on September 24, 2015. Wright,
Monroe, and Riverbank testified at the hearing, and the
parties stipulated that Wright's wife would corroborate
his testimony about his injuries and back and knee pain.
Wright's deposition and medical records and Dr. Dix's
deposition were also admitted into evidence. The AJ left the
record open only for the deposition testimony of Dr. Rahul
Vohra, who had performed an employer's medical
Dr. Dix is board certified in osteopathic medicine and
anesthesiology and specializes in pain management. He has
treated Wright regularly since Wright came to him with back
pain, knee pain, and leg pain (radiculopathy) in 2002. Wright
was already wearing a back brace and two knee braces in 2002,
and Dr. Dix prescribed him medication and recommended
epidural steroid injections for his pain. By 2005, Wright had
suffered two herniated discs in his lower back, and he was
offered surgery but declined. Dr. Dix testified that
"the natural progression" of Wright's injuries
would be "to get progressively worse, irregardless of
what you do." In 2008, Dr. Dix saw Wright for additional
bilateral knee pain, and he referred Wright to an orthopedist
for treatment. Dr. Dix recommended a different, more
supportive type of back brace in 2009.
Dr. Dix continued treating Wright for the same conditions for
the next few years and on October 28, 2013, he observed
swelling in Wright's right knee but no other changes to
the condition of Wright's knees or back. Dr. Dix again
referred Wright to an orthopedist.
In a written questionnaire dated May 12, 2015, Dr. Dix
answered "Yes" to the question, "Do you feel
that Mr. Wright's injuries and your treatment are
causally related to his employment and work injury at Turan
Foley Motors, Inc.?" In his deposition, Dr. Dix
testified that the "work injury" to which his
answer referred was a 2003 work injury. In the questionnaire,
Dr. Dix also explained his "Yes" answer by stating
that Wright's herniated discs, which Wright suffered no
later than 2005, "occurred most likely while
¶10. Dr. Salloum also treated Wright for knee pain in
2011 and 2014. Dr. Salloum's records were admitted into
evidence, but Dr. Salloum did not testify. In an April 2014
progress note, Dr. Salloum stated that Wright had
"severe tricompartmental osteoarthritic changes in both
knees, " and he recommended injections in both knees.
Dr. Salloum also stated that Wright ultimately might require
a left knee replacement.
Dr. Vohra examined Wright in June 2015. Dr. Vohra reviewed
Wright's medical records, a 2005 MRI, and lumbar and knee
x-rays taken on the day of the examination. Dr. Vohra's
EME report discussed Wright's significant history of back
and knee pain issues dating back to at least 2002. Dr. Vohra
also noted that Wright received bilateral knee injections in
Dr. Vohra concluded that Wright's "current back pain
complaints are consistent with the ongoing back pain he has
had since 2002." Dr. Vohra found "no evidence that
there has been any material change in [Wright's] clinical
condition." Rather, Wright "continues to have
chronic mechanical back pain, " which "is a
longstanding preexisting issue."
Dr. Vohra also concluded, based on his review of Wright's
medical records and x-rays, that Wright's knee pain was
the result of "chronic degenerative changes" and
not the result of "any accident or injury at work"
in 2013. Dr. Vohra found that Wright had "no impairment
or restrictions based on an alleged work incident." Dr.
Vohra agreed with Dr. Salloum that Wright needed a left knee
replacement surgery, but Dr. Vohra concluded that
Wright's left knee condition was "not related to a
Dr. Vohra's deposition testimony was consistent with his
EME report. Dr. Vohra testified that Wright's back and
knee conditions were degenerative and preexisting and were
not caused or aggravated by any incident or injury at work in
2013. He also testified that the knee swelling that Wright
experienced in October 2013 was consistent with the arthritic
condition of his knees. Dr. Vohra testified that a strenuous
day at work in October 2013 might have
"exacerbate[d]" Wright's condition, but it
would not have "aggravate[d] it." Dr. Vohra
explained that an "[e]xacerbation is a temporary
increase in symptoms from an underlying . . . condition,
" whereas an "aggravation is an event that actually
changes the course of the underlying" condition.
Prior to Dr. Vohra's deposition, Wright served him with a
subpoena that commanded him to produce several categories of
documents, primarily related to his compensation for
performing EMEs or independent medical examinations (IMEs) or
testifying as an expert witness. Turan Foley had designated
Dr. Vohra to conduct an EME by at least April 13, 2015,
Dr. Vohra examined Wright and issued his report on June 5,
2015. Nonetheless, Wright did not serve Dr. Vohra with a
subpoena until October 22, 2015-nearly a month after the
merits hearing before the AJ.
Dr. Vohra retained counsel who entered an appearance and
filed a motion to quash the subpoena or for a protective
order. Dr. Vohra argued that the subpoena sought irrelevant
information, was overly broad and unduly burdensome, and was
intended "to harass and intimidate [him] in an attempt
to discourage him from" participating in workers'
compensation cases. Turan Foley filed a joinder in Dr.
Vohra's motion. Wright filed a response to Dr.
Vohra's motion. Wright also filed a motion to strike the
entry of appearance entered by Dr. Vohra's lawyers,
arguing that an attorney for a nonparty is not entitled to
enter an appearance in a proceeding before the Commission.
Dr. Vohra was deposed on November 3, 2015, while his motion
to quash was still pending. In his deposition, Dr. Vohra
acknowledged that in a prior, unrelated case he voluntarily
produced a list of all IMEs and EMEs he had performed in 2012
and 2013 with the amount and source of his compensation for
each examination. The list, which was made an exhibit to Dr.
Vohra's deposition in this case, showed total
compensation of $603, 466 for the two-year period, all paid
by employers or carriers. Dr. Vohra testified that it had
been an "[e]normous task" to compile the
information, requiring "[d]ays" of work by
"several people." He testified that he was
unwilling to make such disclosures again voluntarily, which
was why he hired counsel to oppose the subpoena. Wright's
attorney asked Dr. Vohra whether he had ever done any work
for any claimant's attorney, and Dr. Vohra could identify
only three. Other than confirming that the list was the same
document that he had provided in a prior case, Dr. Vohra
refused, on advice of counsel, to answer any questions on
subjects covered by the pending motion to quash. After Dr.
Vohra's deposition, Wright filed a motion to exclude or
strike Dr. Vohra's deposition based on his refusal to
The AJ subsequently entered a forty-one page order denying
Wright's claim. The AJ found that Wright "failed to
meet his burden of proof that he suffered work related
injuries to his back and/or knees." The AJ found that
the evidence was "clear that [Wright] had a long history
of back and knee problems and had received extensive
treatment in the past, " and "[w]hile his arthritis
and underlying conditions may have worsened over the years,
his diagnosis remained essentially the same." The
AJ's opinion also discussed Dr. Vohra's testimony
that Wright's injuries were not related to his work.
The AJ also entered an order quashing Wright's subpoena
to Dr. Vohra. The AJ acknowledged that Wright was
"entitled to explore bias" and that Dr. Vohra's
compensation "may be relevant" to that issue.
However, the AJ found that the issue had "been
sufficiently explored in this case" and that
Wright's "oppressive purpose in serving the subpoena
[was] clear." The AJ expressed concern that it was
already difficult to find physicians willing to perform IMEs
and EMEs and that requiring physicians to respond to such
subpoenas would deter them from participating in workers'
compensation cases. The AJ found that the subpoena should be
quashed because it was "unreasonable and
oppressive." For the same reasons, the AJ also denied
Wright's motion to exclude or strike Dr. Vohra's
deposition. Finally, the AJ denied Wright's motion to
strike the entry of appearance by Dr. Vohra's counsel.
Wright filed a petition for review by the full Commission. In
his petition, Wright argued that the AJ erred by finding that
he failed to prove a compensable injury; by quashing his
subpoena to Dr. Vohra; by denying his motion to exclude or
strike Dr. Vohra's testimony; and by denying his motion
to strike the entry of appearance by Dr. Vohra's counsel.
Turan Foley and Dr. Vohra both filed responses to
Wright's petition. Dr. Vohra also requested an award of
attorney's fees and expenses pursuant to Commission
Procedural Rule 18(g).
The Commission affirmed the AJ's order denying
Wright's claim. The Commission reviewed the testimony and
medical evidence and agreed with the AJ that Wright failed to
meet his burden of proving any compensable injury. The
Commission's opinion also "affirm[ed] and
incorporate[d] the findings of the [AJ]."
The Commission also affirmed the AJ's orders related to
the subpoena and deposition of Dr. Vohra. As to the subpoena,
the Commission "agree[d] with the findings of the [AJ],
" including that "the issue of bias had been
sufficiency explored." The Commission "further
[found] that the discovery sought by [Wright] from Dr. Vohra
was not 'relevant or competent evidence' necessary
for the resolution of the present claim." (Quoting
Commission Procedural Rule 8(g)). As to the motion to exclude
or strike Dr. Vohra's deposition, the Commission agreed
with the AJ that "the financial information sought by
[Wright's] counsel was oppressive and not necessary for
resolution of the claim."
The Commission also sanctioned Wright's attorney,
ordering him to pay Dr. Vohra's attorney's fees and
"an additional civil penalty" of $5, 000. The
Commission imposed the sanctions pursuant to Commission
Procedural Rule 18(g) and Mississippi Code Annotated section
71-3-59(2) (Rev. 2011). The Commission reasoned that
sanctions were appropriate because the subpoena and
deposition questioning of Dr. Vohra were "unwarranted
and oppressive in nature and without reasonable ground"
and were directed to "financial issues not related to
Wright filed a notice of appeal from the final decision of
the Commission. Both Turan Foley and Dr. ...