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Wright v. Turan-Foley Motors, Inc.

Court of Appeals of Mississippi

January 23, 2018

CHARLES WRIGHT APPELLANT
v.
TURAN-FOLEY MOTORS, INC., MISSISSIPPI AUTOMOBILE DEALERS ASSOCIATION, AND DR. RAHUL VOHRA APPELLEES

          DATE OF JUDGMENT: 08/03/2016

         COMMISSION MISSISSIPPI WORKERS' COMPENSATION

          ATTORNEYS FOR APPELLANT: ROGEN K. CHHABRA DARRYL MOSES GIBBS CAROLINE JANE SCOTT AMANDA GRACE HILL RAYNETRA LASHELL GUSTAVIS

          ATTORNEYS FOR APPELLEES: KARL R. STEINBERGER STACIE ELIZABETH ZORN WALTER T. JOHNSON WILLIAM ABRAM ORLANSKY

         EN BANC.

          WILSON, J.

         ¶1. 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.

         ¶2. 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 fees.

         FACTS AND PROCEDURAL HISTORY

         ¶3. 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 October 25.[1]

         ¶4. 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.

         ¶5. 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.

         ¶6. 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[2] 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 examination (EME).

         ¶7. 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.

         ¶8. 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.

         ¶9. 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 working."[3]

¶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.

         ¶11. 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 2011.

         ¶12. 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."

         ¶13. 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 work issue."

         ¶14. 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.

         ¶15. 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, [4] and 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.

         ¶16. 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.

         ¶17. 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 answer questions.

         ¶18. 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.

         ¶19. 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.

         ¶20. 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).

         ¶21. 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]."

         ¶22. 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."

         ¶23. 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 the claim."

         ¶24. Wright filed a notice of appeal from the final decision of the Commission. Both Turan Foley and Dr. ...


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