Released for Publication April 23, 2015.
ON APPEAL FROM COURT OF APPEALS. CASE NO. 2013-CA-002070-WC. WORKERS' COMPENSATION NO. 11-WC-73224.
FOR APPELLANT: Charles E. Jennings.
FOR APPELLEE: Stephanie Letitia Kinney, Brian T. Gannon, Fulton & Delvin, LLC; Barry Lewis, Lewis and Lewis Law Offices.
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.
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.
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 per year before the injuries. Since the ...