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                                                           IJ
                              2014-SC-000220-WC

                                                     DATE4/
MOSEN KHANI                                                           A PELLANT


                  ON APPEAL FROM COURT OF APPEALS
V.                   CASE NO. 2013-CA-002070-WC
                WORKERS' COMPENSATION NO. 11-WC-73224


ALLIANCE CHIROPRACTIC;                                                APPELLEES
HONORABLE (MO D. WOLFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD




               OPINION OF THE COURT BY JUSTICE KELLER

                                  AFFIRMING

      An Administrative Law Judge (ALJ) 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.

      1   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




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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 Bilkey. 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



      2 It appears that Dr. Best evaluated Dr. Khani on August 18, 2011, but did not

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 ALJ rendered a 41 page opinion in which he

set forth in great detail the evidence filed by the parties. Based on that

evidence, the ALJ found that Dr. Khani had not suffered a work-related injury

and dismissed his claim. In doing so, the ALj relied primarily on the opinions

of Drs. Travis and Best.

        For reasons that are unclear, since none of the parties raised the issue,

the ALO 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 AI.,J 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 ALAJ 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 AI,J 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 ALJ was justified in treating Dr. Khani as a lay witness


                                          11
because the Al,,J 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 AI,J

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 AI„J - was not whether to admit Dr.

Khani's testimony, but how to characterize it - . 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 ALJ, 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 Al.,J

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 ALJ 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 & Delvin, LLC

Barry Lewis
Lewis and Lewis Law Offices




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