Austin Powder Company v. Billy Keith Stacy ( 2017 )

lN|PO‘RTANT NOT|CE
NOT TO BE PUBL|SHED OP|NI-ON
THls 0PlNloN ls DEslGNATED “NoT fo BE PuBLlsHED.”
PuRsuANT To THE RuLEs oF clvlL PRocEDuRE
PRoMuLGATED BY THE suPRElle couRT, cR 76.28(4)(c),
THls 0PlNloN ls NoT To BE PuBLlsHED AND sHALL NoT BE
clTED ontusED As BlNDlNG PREcEDENT lN ANY oTHER
cAsE lN ANY_couRT oF THls sTATE; HowEvER,
uNPuBusHED KENTucl695 S.W.2d 418, 419 (Ky. 1985]. In ‘
reaching his decision, the ALJ is free to choose to believe or disbelieve parts of
the evidence from the total proof, no matter which party offered it. Caudill v.
Maloney's Discoun,t-Stores, 560 S.W.2d 15, 16 (Ky. 1977). If the party with the
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burden of proof is successful before the ALJ, the question on appeal is whether
the ALJ’s opinion was supported by substantial evidence. Whittaker v.
Rowland, 998 S.W.2d 479, 481 (Ky. 1999]. 8ubstantial evidence is evidence of
Substance and relevant consequence, having the fitness to induce conviction in
the minds of reasonable people. Smyzer v. B.F. Gooc(l{n'ch Chen_m. Co., 474
S.W.2d 367 , 369 (Ky. 1971]. However, the ALJ’s discretion is not limitless and
we will reverse the ALJ if his opinion “is so unreasonable under the evidence
that it must be viewed as erroneous as a matter of law.” Ira A. Watson Dep’t.
Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). Furthermore, when there are
mixed questions of fact and law, we have greater latitude in determining if the
underlying decision is supported by lthe evidence. Purchase Transp. Servs. v.
Estate of Wilson, 39 S.W.3d 816, 817-18 (Ky. 2001]; Uninsured Employers'_
Fund v. Garland, 805 S.W.2d 116, 117 (Ky. 1991].
III. ANALYSIS.
Austin Powder argues that the ALJ’s findings that Stacy has a 6%
permanent impairment rating related to his hands and Wrists and a 2%
permanent impairment rating related to hearing loss are not supported'by
substantial evidence. We address each argument separately below.
A. Handl wrist permanent impairment rating
Austin Powder argues that the ALJ could not rely on Dr. Hughes’s
opinion for two reasons: (1) Dr. Hughes did not calculate his permanent
impairment rating in accordance with the §ui£e§; and (2] Dr. Hughes’s opinion
was insubstantial because he: (a) had a faulty history; (b) knew nothing of
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Stacy’s work duties; (c] could not identify the source of Stacy’s pain; and _(d]
relied on Stacy’s “hearsay” statement that he h'ad arthritis in his wrists We
address each argument in turn below.
1. Calculation of permanent impairment rating
Dr. Hughes admitted the QMS_ provides that, if active range of motion
testing shows a deficit, an evaluator should test motion passively. _Because he
believed he might cause Stacy pain if he performed passive range of motion
testing Dr. Hughes only measured Stacy’s active range of .motion. Austin
Powder argues that, because Dr. Hughes did not perform passive range of
motion testing, his permanent impairment rating lacks any credibility. W``e
disagree with Austin Powder’s argument for two reasons
First, we note that Austin Powder appropriately does not contest Dr.
Hughes’s finding that Stacy had decreased range of motion, a finding that both
of its experts, Drs. Gabriel and Schiller, also made. Thus, the issue is not
whether Stacy had a loss of range of motion but whether Dr. Hughes
appropriately arrived at his permanent impairment rating based on his
findings As noted in Section 16.4 page 451 of the §Be_s_, “Measurements of
active motion take precedence in the Guides . . . . [and] [s]ound clinical
knowledge and measurement techniques are necessary for appropriate
impairment evaluation and rating.” (Emphasis_in original.] Since the §M
states that active motion testing takes precedencc, we cannot say that D_r. .
Hughes’s clinical judgment to forego passive range of motion testing was
beyond acceptable practice under the Guides.
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Second, Austin Powder’s reliance on Jones v. Brasch-Bany General
Contractors, 189 S.W.3d 149 (Ky. App. 2006) is misplaced In Jones, the
parties introduced evidence from three physicians Id. at 151. Two of the
physicians assessed J ones a 10% permanent impairment rating and one
assessed him a 26% permanent impairment rating Id. The physician who
assessed the 26% permanent impairment rating admitted that Jones “did not
meet the textbook definition” necessary to support that rating Id. The
physician explained his permanent impairment rating by stating “that the
category definitions in the AMA Guides are meant to be used solely as the
name of the text implies, as a guide.” Id. at 152. Based on that physician’s
opinion, the ALJ found that J ones had a 26% permanent impairment rating
Id. The Board reversed the ALJ, holding that the finding of a “twenty-six
percent (26%) permanent impairment was not, as a matter of statutory law,
supported by substantial evidence.” Id.
The Court of Appeals affirmed, holding that:
[A_]n ALJ cannot choose to give credence to an opinion of a
physician assigning an impairment rating that is not based upon
the AMA Guides In other Words, a physician's latitude in the ``field
of workers' compensation litigation extends only to the assessment
of a disability rating percentage within that called for under the
appropriate section of the AMA Guides The fact-finder may not
give credence to an impairment rating double that called for in the
, AMA Guides based upon the physician's disagreement with the
disability percentages called for in the AMA Guides[.]
Id. at 153.
In Jones the physician assessed a permanent impairment rating that was
not supported by his findings and that was in excess of the rating provided for
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in the Qui__d§. There is no evidence that the permanent impairment rating
`` assigned by Dr. Hughes Was not supported by his findings or that it*was in
excess of the rating provided for in the Qu_id_§.. The dispute is with the method
Dr. Hughes used to measure Stacy’s range of motion, which is a different
matter entirely from that considered by the Court of Appeals in Jones.
As noted above, Dr. Hughes admitted that the G_ui_de_s requires both
active and passive range of motion testing; however, as set forth in the G_uhd_§
active range of motion takes precedence The ALJ might have discredited Dr.
Hughes’s opinion because he did not perform both active and passive range of
motion testing However, because active range of motion testing takes
precedence, Dr. Hughes’s permanent impairment rating, which was based on
active range of motion testing,``was consistent with the _Gririd£. Therefore, we
agree with the Court of Appeals that Dr. Hughes’s opinion regarding Stacy’s
wrist permanent impairment rating was based on the §u£l§.
2. Substantial evidence,
As set forth above, Austin Powder argues that Dr. Hughes’s opinion was
also insubstantial because Dr. Hughes; (a) had a faulty history; (b) knew
nothing of Stacy’s work duties; (c] could not identify the source of Stacy’s pain;
(d) relied on Stacy’s “hearsay” statement that he had arthritis in his wrists; and
[e) made no finding that Stacy suffered a harmful change, We address each in
turn.
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a. Fault``y History.
Austin Powder argues that Dr. Hughes did not have a complete
understanding of Stacy’s history of gout in his wrists as contained in Dr.
Belhasen’s records Dr. Hughes admitted that he was not an expert regarding
gout, and, as the Board noted, Dr. Hughes did not make any reference to Dr.
Belhasen’s reports The problem with this argument is that Dr. Belhasen’s
diagnoses-gout in the Wrists in July 2012 and localized osteoarthritis of the
wrists in August 2012-are arguably inconsistent The ALJ could have found
that Dr. Hughes’s failure to cite to Dr. Belhasen’s records made Dr. Hughes’s
opinion less credible; however, that failure did not render Dr. Hughes’s opinion
so insubstantial as to be unreliable as a matter of law'.
b. Failure to understand the physical demands of Stacy’s work.
Austin Powder argues that Dr. Hughes’s opinion is insubstantially
unreliable because Dr. Hughes could not state that Stacy repetitiver used his
hands and arms at work. Furthermore, he could not state with specificity what
actual movements Stacy made or how often he made those movements
According to Austin Powder, without that information, Dr. Hughes’s opinion
that Stacy suffered repetitive trauma to his wrists can be given no credence.
However, as stated above, while the ALJ might have found that this lack of
specificity from Dr. Hughes made his opinion less credible, it did not render it
so insubstantial as to be unreliable as a matter of law. In reaching this
conclusion, we note that Austin Powder_ha_s not cited us to any authority
stating that a physician who lacks Such Specific information regarding the
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nature of an employee’s work is foreclosed from expressing an opinion
regarding causation. Nor has it cited-us to any authority that an ALJ is
foreclosed from relying on such an opinion.
c. Source of Stacy’s pain.
Austin Powder argues that Dr. Hughes did not state specifically what the
source of Stacy’s pain is, thereby rendering his opinion unsubstantial.
However, we note that Dr. Hughes stated that Stacy “has developed bilateral
hand pain attributed to arthritis.” Thus, Dr. Hughes did render an opinion as
to a causative factor for Stacy’s pain,
d. Hearsay evidence of arthritis
Austin Powder argues that the only evidence Dr. Hughes had that Stacy
has arthritis came from Stacy’s self-report. While that may be true, there is
medical evidence that Stacy has arthritis in his wrists as reported by Dr.
Belhasen (localized primary osteoarthritis of the wrist) and Dr. Gabriel (mild
degenerative changes with inflammatory arthropathy of the wrist). Thus, Dr.
Hughes’s statement that Stacy has arthritis is supported by medical evidence
and not solely dependent for its credibility on Stacy’s self-report.
e. Failure to find a harmful change evidenced by objective medical
findings
KRS 342.001 1(1) defines injury as “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”
According to Austin Powder, Dr. Hughes made a diagnosis of pain, which is a
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symptom and not a harmful change in the human organism evidenced by
objective medical findings We agree with Austin Powder that “[a] patient's
complaints of symptoms clearly are not objective medical findings as the term
is defined by KRS 342.001 1(33),” Gibbs v. Premier Scale Co./Indiana Scale Co.,_
50 S.W.3d 754, 762 (Ky. 2001), as modified_on denial of reh'g (Aug. 23, 2001].
However, we note that “the existence of a harmful change” can “be established,
indirectly, through information gained by direct observation and / or testing
applying objective or standardized methods that demonstrated the existence of
symptoms of such a change.” Id.
Here, Dr. Hughes found evidence of loss of range of motion through the
use of a standardized method of testing and that finding demonstrated the
existence of pain, a symptom of the change. Furthermore, there is evidence
from Dr. Belhasen and Dr. Gabriel that Stacy has arthritis in his Wrists, which
is clearly a harmful change evidenced by objective medical findings.
Finally, We note that Austin Powder Stated that “Drs. Raichel, Belhasen,
Gabriel, and Schiller .- . . all diagnosed gouty arthritis, not cumulative trauma.” .
While it is true that none of those physicians made a diagnosis of cumulative
trauma, Austin Powder’s statement is not exactly a correct representation of
those physicians’ diagnoses Dr. Raichel made diagnoses of hypertension,
gout, hyperglycemia, B12 deficiency, testosterone deficiency, and anxiety.
However, we note"that Dr. Raichel did not state whether Stacy’s gout was in his
feet or wrists or both. Dr. Belhasen made two diagnoses - gout in the hands,
wrists, and feet in July 2012 and localized primary arthritis of the wrist in
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August 2012. He also noted that Stacy’s work activity caused his complaints of
pain to increase. Dr. Gabriel made diagnoses of chronic bilateral hand/ wrist
' pain, gouty/ degenerative arthritis bilaterally, and bilateral carpal tunnel
syndrome. Dr. Schiller stated that Stacy might have degenerative arthritis in 4
his wrists; however, he had insufficient information to categorically reach that
diagnosis. Even if Austin Powder were correct and all four physicians had
made a diagnosis of gouty arthritis, those diagnoses would not have compelled
the ALJ to find in Austin Powder’s favor. As noted above, the ALJ is free to
choose 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
1'5,l 16 (Ky. 1977). Here, the ALJ chose to believe Stacy’s proof, which he was
free to do. Therefore, we affirm the Court of Appeals with regard to Stacy’s
injury claim.
. B. Hearing loss permanent impairment rating.
KRS 342.7305(4) provides tha-t
When audiograms and other testing reveal a pattern of hearing loss
compatiblewith that caused by-hazardous noise exposure and the
employee demonstrates repetitive exposure to hazardous noise in
the workplace, there shall be a rebuttable presumption that the
hearing impairment is an injury covered by this chapter, and the
employer with whom the employee was last injuriously exposed to
hazardous noise shall be exclusively liable for benefits. '
Austin Powder does not dispute that Stacy’s audiological tests revealed
hearing loss compatible with exposure to hazardous noise. Furthermore, it
does not dispute that Stacy was repeatedly exposed to hazardous noise.
However, Austin Powder does dispute whether Stacy was injuriously exposed to
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hazardous noise while in its employ. In support of that position, Austin
Powder points out that Dr. Jones did not know the decibel level of noise to
which Stacy was exposed at work. -
Austin Powder did introduce evidence, through Smith, that the cab was
pressurized to reduce noise, the decibel level in the cab was below the OSHA
threshold, and Stacy’s hearing protection would have brought the decibel level
even lower. However, Stacy advised Dr. Jones that the drill was noisy and the
cab was not _pressurized. The ALJ was free to believe Stacy’s assessment of the
noise level of the drill, as was Dr. Jones. Furtheri'nore, based on Stacy’s
testimony that he did not realize he had a hearing loss until tested in
September 2012, the ALJ was free to infer Stacy’s hearing loss was caused,
partially if not wholly, by his work for Austin Powder. Therefore, we affirm the
Court of Appeals, the Board, and the ALJ with regard to Stacy’s hearing loss
claim.
IV. CONCLUSION.
The Court of Appeals is affirmed The ALJ’s findings that Stacy has
permanent impairment ratings for his lumbar spine and loss of grip strength
are vacated, as is his finding that Stacy is permanently totally disabled This
matter is remanded to the ALJ with instructions to determirie: (1) whether
Stacy suffered a lumbar spine injury entitling him to medical expense benefits',
(2] whether Stacy’s entitlement to lumbar spine medical expense benefits is
temporary or permanent; and (3) the extent and duration of Stacy’s wrist-
related disability. The ALJ should note that, by vacating the prior finding of
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permanent total disability, we do not intend to foreclose such a finding on
remand If the ALJ believes that the evidence supports such a finding on
remand, then he or she is free to make that-- finding and to award benefits
accordingly.
All sitting. All .concur.
COUNSEL FOR APPELLANT:
Walter Elliott Harding
Boehl Stopher & Graves, LLP
COUNSEL FOR APPELLEE, BILLY KEITH STACY:
McKinnley Morgan j
Morgan Collins 85 Ye'ast
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