RENDERED: APRIL 2, 2015 TO BE PUBLISHED
oi5ujarrittr (Courf f7firttfutitv 2014-SC-000220-WC
MOSEN KHANI APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2013-CA-002070-WC WORKERS' COMPENSATION NO. 11-WC-73224
ALLIANCE CHIROPRACTIC; APPELLEES HONORABLE OT1'0 D. WOLFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
An Administrative Law Judge (A1.0) denied Mosen Khani's (Dr. Khani)
claim for workers' compensation benefits. The Workers' Compensation Board
(the Board) affirmed the ALJ, and the Court of Appeals affirmed the Board. On
appeal to us, Dr. Khani argues the ALJ erred: (1) when he stated that he was
treating Dr. Khani as a lay witness rather than as an expert witness; (2) when
he determined that Dr. Khani had not suffered an injury as defined by the Act;
and (3) when he did not award Dr. Khani temporary total disability income and
temporary medical expense benefits. Having reviewed the record, we affirm.
I. BACKGROUND.
Dr. Khani filed an application for resolution of injury claim alleging that
he suffered injuries to his upper extremities, neck, low back, left lower
extremity, and dental bridge on February 28, 2011, August 22, 2011, and August 23, 2011. According to Dr. Khani's claim form, these injuries occurred
while he was "moving or assisting patients."
At the time of his alleged injuries, Dr. Khani was the owner and operator
of Alliance Chiropractic, LLC (Alliance). Dr. Khani purchased workers'
compensation insurance through Kentucky Employers' Mutual Insurance
(KEMI) and was a covered employee under the policy. KEMI provided a defense
on behalf of Alliance and, because it perceived there might be a conflict of
interest, intervened and presented a separate defense in its own name. Both
KEMI and Alliance contested Dr. Khani's claim arguing, in pertinent part, that
his conditions pre-existed and were unrelated to the alleged work injuries.'
During the course of litigation, the parties filed numerous medical records and
reports and Dr. Khani testified by way of deposition and at the final hearing.
We summarize that evidence below.
A. Dr. Khani's Testimony.
Dr. Khani has been a practicing chiropractor since obtaining his degree
in 1988, and he has owned and operated Alliance since 2000. As a
chiropractor, Dr. Khani is required to continuously bend, push, pull, twist, and
lift patients. Dr. Khani stated that, because of the physical nature of his work,
"there's not a day that I don't go to the office and don't get injured, just soft
tissue injuries." As a result, Dr. Khani has suffered from aches and pains in
his neck, back, shoulders, and upper and lower extremities. However, these
symptoms changed following three work-related injuries.
KEMI is not participating in this Appeal.
2 On February 28, 2011, Dr. Khani experienced pain in his neck and left
arm while he was adjusting a patient. He described the pain as being similar
to what he had felt in the past but stated that it did not resolve so he sought
treatment with Dr. Arar. Dr. Arar ordered diagnostic tests which, according to
Dr. Khani, showed muscle wasting and a disc protrusion. Following those
diagnostic tests, Dr. Arar prescribed medication.
On August 22, 2011, Dr. Khani experienced low back and left leg pain
when he caught a patient who had lost his balance and was falling. On August
23, 2011, Dr. Khani experienced neck and bilateral shoulder pain while he was
adjusting a patient. Dr. Khani treated conservatively following these incidents.
Dr. Khani also testified that, because of pain after the February 2011
injury, he clenched his jaw while treating patients and broke a dental bridge.
However, Dr. Khani did not know the date this occurred.
Dr. Khani admitted that he had experienced similar symptoms prior to
these injuries, and he admitted that he had received treatment for similar
complaints, particularly in 2006. However, Dr. Khani stated that his pre-
existing symptoms had abated prior to his 2011 injuries.
Since these injuries, Dr. Khani has "self-limited" his activities and sought
relief through conservative treatment. However, he continues to have pain and
stated that he experiences increased back pain and leg numbness if he stands
for longer than an hour and that he has difficulty performing most of his job
related activities. Dr. Khani estimated that he treated 4,800 to 5,000 patients
3 per year before the injuries. Since the injuries, his practice has decreased by
30 to 40 percent and Dr. Khani has considered selling Alliance.
B. Medical Evidence.
Dr. Khani filed the October 6, 2011, May 16, 2012, and December 13,
2012 reports of Dr. Warren Gilkey. According to Dr. Bilkey, Dr. Khani suffered
a neck injury on February 28, 2011, a lumbar spine injury on August 22,
2011, and bilateral shoulder injuries on August 23, 2011 while treating
patients. Dr. Khani complained to Dr. Bilkey of neck pain with radiation into
the left upper extremity, headache, low back pain with radiation into the left
lower extremity, bilateral shoulder pain, and left upper extremity numbness
and tingling related to the alleged work injuries. Dr. Bilkey noted that Dr.
Khani had suffered from "chronic pain particularly in the neck and back and
shoulders prior to these work injuries" as a result of the "cumulative .. .
physical assertion" necessary to treat his patients. Furthermore, Dr. Bilkey
noted that Dr. Khani had undergone diagnostic tests in 2006 for his
complaints of pain and those tests revealed degenerative changes in the lumbar
and cervical spine and evidence of carpal tunnel syndrome, findings similar to
the results of testing following the 2011 injuries.
Following his examinations, Dr. Bilkey made diagnoses of work-related
cervical strain, cervical radiculopathy, lumbar strain, and bilateral shoulder
pain due to strain injuries and right shoulder labrum and rotator cuff tears.
Dr. Bilkey assigned Dr. Khani a 15% impairment rating for his cervical spine
condition and a 5% impairment rating for his lumbar spine condition.
4 However, because Dr. Khani had suffered from chronic neck and low back pain
before the 2011 injuries, Dr. Bilkey attributed 3% of each of those impairment
ratings to pre-existing and active pain. Dr. Bilkey assigned Dr. Khani a 14%
impairment rating for his shoulder conditions, all of which he attributed to the
work injury of August 23, 2011. Finally, Dr. Bilkey did not impose any
permanent restrictions on Dr. Khani; however, Dr. Bilkey stated that he did not
believe Dr. Khani would be able to continue working as a chiropractor long-
term.
Alliance and KEMI filed the August 29, 2011 2 and September 13, 2011
reports of Michael M. Best, M.D. Dr. Khani complained to Dr. Best of left sided
neck pain, left shoulder and arm pain, low back pain, right knee pain, and
numbness and tingling in both hands. Following his examination and review
of Dr. Khani's medical records, Dr. Best concluded that Dr. Khani's conditions
were not work-related. In doing so, Dr. Best indicated that "none of these
conditions were ever reported as work injuries" and that he knew of no "peer-
reviewed, scientific studies that demonstrate chiropractors have an increased
incidence of cumulative trauma injuries. Therefore, Dr. Best concluded that
Dr. Khani's conditions were "simply the 'natural aging process,'" and he
assigned no permanent impairment or restrictions.
Alliance filed the April 4, 2012 and January 26, 2013 reports of Dr.
Ronald J. Fadel. Dr. Khani complained to Dr. Fadel of low back pain with left
It appears that Dr. Best evaluated Dr. Khani on August 18, 2011, but did not 2
prepare his report until August 29, 2011.
5 leg sciatica and neck and left arm pain with left hand numbness and decreased
left arm sensation related to injuries in February and August of 2011.
Following his examination and review of Dr. Khani's medical records, Dr. Fadel
stated that Dr. Khani suffered only "temporary sprain injuries of his neck,
shoulder and lumbar spine as a result of mishaps at work." Dr. Fadel stated
that eight to twelve weeks of treatment would have been reasonable for those
work-related temporary sprains but anything beyond that would have been
treatment for Dr. Khani's underlying pre-existing conditions. Finally, Dr. Fadel
stated that Dr. Khani had no permanent impairment from his injuries, no
permanent restrictions, and his symptoms were "little different from those [Dr.
Khani] expressed in the past without trauma history."
KEMI filed the October 21, 2012 records' review report and the January
15, 2013 supplemental report of Dr. Russell L. Travis. Based on his review of
the medical records and the transcript of Dr. Khani's deposition, Dr. Travis
concluded that Dr. Khani had not suffered any permanent work-related injury.
In reaching that conclusion, Dr. Travis stated that the medical records did not
contain any specific reports of work-related injuries by Dr. Khani to his treating
physicians. Furthermore, Dr. Travis noted that Dr. Khani had complained of
and received treatment for similar symptoms prior to the alleged work injuries
and that the results of Dr. Khani's imaging and electrodiagnostic studies were
the same after the alleged work-injuries as they had been before. Finally, Dr.
Travis stated that any permanent impairment Dr. Khani has would have pre-
6 existed the alleged work injuries, and Dr. Bilkey's opinions to the contrary were
not supported by the medical records.
Finally, KEMI filed voluminous medical records from Norton Immediate
Care Center, River City Orthopaedic Surgeons, Dr. Michael Moskul, Dr. Kittie
George, and Kleinert, Kutz and Associates Hand Care Center showing
treatment Dr. Khani received for complaints of symptoms in his neck, low
back, shoulders, and upper and lower extremities in 1998, 2006, 2007, and
2008.
C. The Opinions Below.
Following the hearing, the AI,J rendered a 41 page opinion in which he
set forth in great detail the evidence filed by the parties. Based on that
evidence, the Al.,J found that Dr. Khani had not suffered a work-related injury
and dismissed his claim. In doing so, the AI,J relied primarily on the opinions
of Drs. Travis and Best.
For reasons that are unclear, since none of the parties raised the issue,
the AI,J stated in his opinion that:
Plaintiff is a chiropractor, and, in his discovery deposition and Final Hearing testimony, he often utilized medical terms, provided medical explanations, and gave what would be considered medical opinions regarding the cause of his alleged injuries and resulting limitations. It is noted Plaintiff is not considered an expert witness herein, but is considered to be only a lay witness.
Dr. Khani appealed to the Board arguing, as he does here, that the ALJ's
dismissal of his claim and the ALJ's finding that he is not an expert were
erroneous. The Board affirmed, finding that there was sufficient evidence of
substance to support the ALJ's finding that Dr. Khani had not suffered an 7 injury. As to the ALJ's finding that Dr. Khani was not an expert, the Board
noted that Dr. Khani had not raised that issue on reconsideration, which
limited its review to whether there was "substantial evidence contained in the
record to support the ALJ's conclusion." The Board, while not directly
addressing the ALJ's determination to treat Dr. Khani as a lay witness, found
there was substantial evidence to support "the ALJ's ultimate determination
and no contrary result [was] compelled."
Dr. Khani sought review by the Court of Appeals, which affirmed the
Board. The Court of Appeals, as did the Board, held that there was sufficient
evidence of substance to support the ALJ's finding that Dr. Khani had not
suffered an injury. As to the ALJ's finding that he would not treat Dr. Khani as
an expert, the Court stated as follows:
Kentucky Rules of Evidence (KRE) 702 provides that expert testimony must be based on sufficient data or facts, the product of reliable principles and resources, and that the principles and methods have been reliably applied to the facts of the case. In the matter at bar, ALJ Wolff made specific findings that some of [Dr.] Khani's testimony was evasive and, in the ALJ's view, formulated to support his claim for benefits. The ALJ has the sole province to determine the quality, character and substance of the evidence and to draw all reasonable inferences from that evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). The trial court is presumed correct in its rulings and judgments, and the burden rests with the appellant to overcome that presumption. Caudill v. Caudill, 212 Ky. 433, 279 S.W.656 (1925). [Dr.] Khani has cited no precedent for the error he asserts, and has not overcome the presumption of correctness in the ALJ's disposition of this issue. Accordingly, we find no error.
Khani v. Alliance Chiropractic, No. 2013-CA-002070-WC, 2014 WL 1159795, at
*3 (Ky. Ct. App. Mar. 21, 2014).
8 II. STANDARD OF REVIEW.
As fact finder, the ALJ was free to believe or disbelieve parts of the
evidence from the total proof, no matter which party offered it. Caudill v.
Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). Furthermore, the
ALJ had the sole authority to judge the weight, credibility, substance and
inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 418, 419 (Ky. 1985). Dr. Khani had the burden of proving every
element of his claim, including that his condition is related to a work injury.
Gibbs v. Premier Scale. Co./ Indiana Scale Co., 50 S.W.3d 754, 763 (Ky. 2001).
Because Dr. Khani failed to convince the ALJ, he must establish on appeal that
the evidence was so overwhelmingly favorable "as to reasonably compel a
finding in his favor." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
With these standards in mind, we address the issues raised on appeal.
III. ANALYSIS.
A. Dr. Khani did not offer any expert opinions; therefore, the ALJ's determination to treat Dr. Khani as a non-expert was not erroneous.
On appeal, Dr. Khani argues that the ALJ's determination to treat him as
a lay rather than an expert witness was error. Therefore, Dr. Khani asks us to
remand this matter to the ALJ so that he can "fully consider the expert
opinions of Dr. Khani and . . . provide an appropriate analysis based upon the
entirety of the lay and medical evidence." In support of his argument, Dr.
Khani notes that, as a duly licensed chiropractor, he is a physician pursuant to
KRS 342.0011(32), and therefore believes the ALJ should have treated his
9 opinions as "expert opinions." Alliance argues that the ALJ's determination
was correct because the ALJ found Dr. Khani's testimony to be "evasive,"
"contrived," and self-serving, thus removing Dr. Khani from the realm of the
"unbiased, objective witness or expert."
Initially, we note that the parties only objected to Dr. Khani's testimony
when he speculated about the potential value of Alliance. The parties did not
object to any of Dr. Khani's other testimony, and they did not question whether
Dr. Khani was or could testify as an expert witness. Furthermore, none of the
parties raised this as an issue until the ALA sua sponte included it in his
opinion. It is unclear why the ALJ considered this an issue; however, now that
it is one, we must address it because the analysis by the ALJ and the Court of
Appeals was faulty.
The key question is not whether Dr. Khani was an expert; it is whether
he rendered any opinions that could be deemed "expert opinions." KRE 701
provides that non-expert witnesses may provide opinion testimony if the
opinions expressed are: "(a) Rationally based on the perception of the witness;
(b) Helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue; and (c) Not based on scientific, technical, or
other specialized knowledge within the scope of Rule 7.02." None of the
participants involved in this litigation have set forth exactly what they believe
those opinions were. Therefore, we have reviewed Dr. Khani's testimony and,
in summary, he testified about what he was doing when injured; what
symptoms he felt after each of his injuries; what treatment he sought as a
10 result of his symptoms; how his symptoms have limited his ability to conduct
his activities; and how his post-injury symptoms differed, if at all, from prior
similar symptoms. In giving that testimony Dr. Khani may have used some
medical terminology; however, his testimony did not otherwise differ
significantly from the testimony given by nearly every workers' compensation
claimant. Furthermore, Dr. Khani's testimony, to the extent it contained
opinions, contained opinions based on Dr. Khani's perceptions of his
condition/symptoms, not on his "scientific, technical, or other specialized
knowledge." KRE 701. Therefore, Dr. Khani's testimony was not expert
opinion testimony. While it is true that Dr. Khani's perceptions are
necessarily filtered through his training and expertise as a chiropractor, his
testimony was purely personal in nature, describing his claim as any claimant
is entitled to do. This analysis can be extended to physicians, nurses, or other
medical personnel who may find themselves claimants in a worker's
compensation claim or plaintiffs in a personal injury action.
Because we believe it misstates the law, we must next address the
opinion of the Court of Appeals on this issue. The Court of Appeals correctly
set forth the criteria to be considered when determining whether to admit
expert opinion testimony, i.e. it must: "(1) . . . [be] based upon sufficient facts
or data; (2) . . . [be] the product of reliable principles and methods; and (3) [t]he
witness [must have] applied the principles and methods reliably to the facts of
the case." KRE 702. The Court of Appeals, apparently based on the preceding
criteria, found that the Al.,J was justified in treating Dr. Khani as a lay witness
11 because the ALJ found Dr. Khani's testimony was self-serving and less than
straightforward. We note that the testimony of many retained experts would
arguably run afoul of one or both of these criteria. And, while the ALJ's
findings regarding Dr. Khani's testimony certainly influence the weight to be
afforded that testimony, they are not findings that address the criteria for
determining the admissibility of expert opinion testimony. As set forth in KRE
702, findings regarding the sufficiency of the facts or data and the reliability of
the means and principles used to interpret the facts or data are necessary
precursors to an expert witness opinion admissibility determination. The ALJ
made no findings regarding any of those criteria. Therefore, the Court of
Appeals's reference to and apparent reliance on KRE 702 was misplaced.
Furthermore, the issue created by the ALJ was not whether to admit Dr.
Khani's testimony, but how to characterize if. As set forth in KRE 701, the
distinction between expert opinion testimony and lay opinion testimony is the
basis for the testimony. If the opinion is based on the witnesses' perceptions,
as Dr. Khani's was, it is lay witness opinion testimony. If the opinion is based
on "scientific, technical, or other specialized knowledge," it is expert witness
opinion testimony. KRE 701. In reviewing the ALJ's characterization of Dr.
Khani's testimony, the Court of Appeals should have used KRE 701, not KRE
702. Had the Court of Appeals used the correct rule, we feel certain it would
have concluded, as has this Court, that Dr. Khani simply did not provide any
expert witness opinion testimony.
12 Finally, Dr. Khani appears to have the appropriate credentials to offer
expert opinion testimony, and his status as a claimant would not necessarily
have excluded him from doing so. However, in this case, he simply did not do
so. Based on the preceding, although it appears to have been completely
unnecessary, the ALJ's determination to treat Dr. Khani's testimony as lay
witness opinion testimony was not erroneous.
B. The ALJ's finding that Dr. Khani had not suffered a work-related injury was supported by substantial evidence.
KRS 342.0011(1) provides, in pertinent part, that:
"Injury" means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. "Injury" does not include the effects of the natural aging process[.]
Dr. Khani argues the ALJ "misinterpreted" the medical evidence in
finding that Dr. Khani did not suffer a work-related injury. Furthermore, he
argues the ALJ's finding was "an arbitrary abuse of discretion and against the
overwhelming weight of the medical and lay evidence." In support of his
argument, Dr. Khani notes that his testimony regarding the three work-related
incidents is uncontroverted. However, whether the incidents Dr. Khani
described occurred was not the only question before the ALJ. The ALJ also had
to determine if those incidents caused an injury. As noted above, Dr. Travis
opined that all of Dr. Khani's symptoms and diagnostic test results pre-existed
the reported incidents and were not altered by those incidents. Dr. Travis then
concluded that Dr. Khani had not suffered an injury as a result of those
13 incidents. Dr. Best stated that he found "no objective evidence" that Dr. Khani
had any work-related conditions, and he opined that there were no studies
supporting Dr. Khani's alternative theory that his conditions could be the
result of cumulative trauma. As Dr. Khani notes, there was evidence to the
contrary, specifically his own testimony that his symptoms changed and the
opinion of Dr. Bilkey that the incidents did rise to the level of work-related
injuries. Furthermore, we note that Dr. Fadel's opinion would have supported
a finding of at least temporary injuries. While another AI,J, and even members
of this Court, might have found Dr. Bilkey's or Dr. Fadel's opinions to be more
persuasive, nothing about those opinions compelled such a finding. Drs.
Travis and Best extensively and in detail reviewed and summarized Dr. Khani's
medical records and set forth their reasons for their opinions, and we cannot
find, as a matter of law, that the ALJ erred in relying on those opinions.
Finally, Dr. Khani notes that the ALJ stated in his opinion that Dr. Khani
had not presented any evidence of a "structural change" as a result of the
injury. Dr. Khani points to that statement as evidence that the ALJ
misconstrued the law. Dr. Khani is correct that the law does not require a
claimant to prove a structural change to prove an injury. See Staples, Inc. v.
Konvelski, 56 S.W.3d 412, 415 (Ky. 2001). However, as the Al.,J noted in his
order on reconsideration, he understands a finding of a "structural change" is
not a necessary prerequisite to a finding of a work-related injury, and he did
not require Dr. Khani to prove such a change. Therefore, Dr. Khani's argument
14 that the ALJ's use of that phrase undermines the opinion is without merit, and
we affirm the ALJ's finding that Dr. Khani did not suffer a work-related injury.
C. Because the ALJ found no work-related injury, there could not have been a temporary work-related injury.
As we understand it, Dr. Khani is arguing that the ALJ was required to
determine whether his injuries were permanent or temporary, and whether he
was entitled to temporary benefits. Dr. Khani is correct that Dr. Fadel's
opinion would have supported a finding of a temporary injury and entitlement
to temporary benefits. However, it is axiomatic that, before there can be a
temporary injury, or a permanent injury for that matter, there must first be an
injury. Once the AI,J found that Dr. Khani had not suffered an injury, making
a determination as to whether the non-injury was temporary or permanent
would have been a trip down the proverbial rabbit hole. Therefore, we discern
no error in the ALJ's failure to make the requested findings or in his failure to
award temporary benefits.
IV. CONCLUSION.
For the foregoing reasons, we affirm.
All sitting. All concur.
15 COUNSEL FOR APPELLANT:
Charles E. Jennings
COUNSEL FOR APPELLEE:
Stephanie Letitia Kinney Brian T. Gannon Fulton 86 Delvin, LLC
Barry Lewis Lewis and Lewis Law Offices