Austin Powder Company v. Billy Keith Stacy

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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CITED OR.USED AS BINDING PRECEDENT IN ANY OTHER
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RENDERED: AUGUST 24, 2017
NOT TO BE PUBLISHED
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2016-SC-000347-WC
AUSTIN POWDER COMPANY APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NOS. 2014-CA-000918-WC & 2014-CA-000946-WC
V. WORKERS' COMPENSATION BOARD
NO. 12-WC-01514
BILLY KEITH STACY; APPELLEES
HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (AW) found that Billy Keith Stacy suffered
from an occupational noise-induced hearing loss and from work-related
repetitive trauma to his wrists and .low back. Based on those findings, the AW
found that Stacy is permanently totally disabled, and he awarded income and
medical expense benefits accordingly. Austin Powder Company appealed to the
Workers' Compensation Board (the Board), which affirmed in part, and
reversed and vacated in part. Both parties sought review before the Court of
Appeals, which affirmed the Board in part and reversed in part. I Austin
Powder appeals to this Court arguing that the portion of the AW's opinion
affirmed by the Board and the Court of Appeals was not supported by evidence
of substance and should be reversed in its entirety. Having reviewed the
record, the lengthy and well-reasoned opinions from below, and the arguments
of the parties, we affirm.
I. BACKGROUND.
Stacy testified that he worked as a drill operator for Austin Powder from
May 3, 2005 until he was laid off on April 1_6, 2012. Following his last day of
. .
work, Stacy filed workers' compensation claims for: cumulative-trauma injuries
to his wrists, hands, and low back; occupational hearing loss; and coal
workers' pneumoconiosis. The only claims in dispute on this appeal involve
Stacy's alleged work-related injuries to his wrists and hands and his hearing
loss; therefore, we do not address any of the evidence filed in his coal workers'
pneumoconiosis claim.
Stacy operated a piece of heavy equipment called a drill. As a drill
operator, Stacy was required to measure and lay out grids along an area to be
surface mined and to mark where he would drill holes for blasting. This
required him to climb in and out of the drill's cab. Once an area was marked,
1 The Board rendered its opinion before this Court rendered Hale v. CDR
Operations, Inc., 474 S.W.3d 129 (Ky. 2015). Thus, the Board stated that the AW, on
remand, had to determine what portion, if any, of Stacy's cumulative trauma injury
occurred while Stacy was employed by Austin Powder and the onset date of Stacy's
injuries. The Board then instructed the AW to apportion any entitlement to benefits
accordingly. The Court of Appeals, based on Hale, reversed the Board's findings ort
those two issues.
2
Stacy sat in what he described as a non-pressurized, heated/air-conditioned
cab and operated the drill by manipulating a number of switches and levers.
Stacy also had to clean the tracks and grease the drill. He described his job as
not requiring a great deal of physical exertion and testified that he wore
hearing protection while working.
Stacy testified that he could sit for long periods without difficulty but
experienced back pain when standing for more than fifteen minutes and when
walking. Using his hands caused· swelling and pain in his hands and wrists.
Stacy stated that he was not receiving any specific medical treatment for his
physical conditions. As to his hearing loss, Stacy did not realize he had a
problem until after he had his hearing checked, although he did report that his
children sometimes told him to turn down the volume on the television.
Hirley Smith, blasting coordinator for Austin Powder when Stacy worked
there, testified that the cab was pressurized to reduce exposure to noise and
dust. According to Smith, the noise level in the pressurized cab had been
measured at 74.2 to 76 decibels and the hearing protection Stacy wore reduced
the noise level by 32 decibels.
In support of his injury claim, Stacy filed reports from Dr. Hughes; the
August 22, 2012 note from Baptist Southeast Orthopeadics/Dr. Belhasen; the
physical capacities evaluation of Dr. Raiche!; and the April 29, 2013 NCV
report from M&G Neurophysiology. Austin Powder filed several reports and the
deposition of Dr. Schiller, the deposition of Dr. Hughes, the July 25, 2012 note
from Baptist Southeast Orthopeadics/Dr. Belhasen, and the report of Dr.
3
Gabriel. In support of his hearing loss claim, Stacy filed the September 6,
2012 report from audiologist Robert Moore. Pursuant to KRS 342.315(2) and
803 KAR 25:010(11), the Department of Workers' Claims filed the February 19,
2013 Form 108-HL, Medical Report- Hearing Loss of Drs. Jones and Ormond.
Austin Powder filed the deposition of Dr. Jones. We summarize that medical
evidence below.
The parties, the AW, the Board, and the Court of Appeals discuss Dr.
Hughes's reports in detail. For reasons that are .unclear, those reports are not
in the record before us; however, neither party has indicated that the reports
were not filed with the Department of Workers' Claims or were not properly in
evidence, or were not in the record before the Board and the Court of Appeals.2
Although Austin Powder objects to the AW's reliance on Dr. Hughes's reports,
it does not dispute the accuracy of the AW's summary of those reports or the.
Board's quotes from those reports.3 Therefore, we adopt the following
summary of Dr. Hughes's reports by the AW and the following quotes from Dr.
Hughes's reports by the Board as our own.
The Plaintiff submitted the Form 107 from Dr. Hughes dated
November 28, 2012. Mr. Stacy related to Dr. Hughes an
employment history of being employed as a drill operator where
· 2 The Court of Appeals issued an order to the Department of Workers' Claims
requesting that it supplement the record by producing documents associated with
Stacy's injury claim. The Department did provide a supplement; however, the
supplement that this Court has contains records related to Stacy's coal workers'
pneumoconiosis claim, not his injury claim.
3 We note the AW stated in his opinion and award that Dr. Hughes assigned an
18% permanent impairment rating when Dr. Hughes had actually assigned a 16%
permanent impairment rating. The AW corrected that finding in his order on
reconsideration.
4
[he] had a gradual onset of lower back pain with standing and
walking beginning approximately five years ago. He feels okay
when lying or sitting and the pain occur[s] when he is changing
drill bits and walking or bending over. He does not have leg pain
and no tingling of°the legs. He has been running .equipment and
performing surface mining for 41 years. He can run the drill while
sitting but is unable to run rock trucks, graders, loaders, ahd
dozers.
He has a past history of hypertension and gout affecting
particularly the right foot and was unable to work when:the gout is
active. He has had pain in both hands for the past seven years.
His hands swell and he is unable to grasp a handrail or even use
toggle switches on the drill when his hands are swollen. The pain
flares up when he tries to use his hands. He has also experienced
an 80% hearing loss.
Dr. Hughes reviewed the medical report of Dale Williams, DC;
evaluation by Michael Raiche!, DO; an audiogram dated September
6, 2012; diagnostic studies, and performed a physical examination
on him.
Based on the foregoing, Dr. Hughes diagnosed the Plaintiff with
lower back pain and bilateral hand and wrist pain and reduced
range of motion and strength.
Dr. Hughes opined that the Plaintiffslong history of repetitive
injuries ;,ts a consequence of his occupation as a heavy equipment
operator for the past 41 years is the cause of his complaints. Dr.
Hughes notes that Mr. Stacy's lower back pain has interfered with
his ability to operate heavy equipment because he cannot stand,
walk, or lift. He is able to sit. This has interfered with his ability
to perform ordinary tasks of daily living at home as well[.] He has
developed bilateral hand pain attributed to arthritis, which also
limits his ability to use his hands for ordinary tasks at home or in
his job as a driller and heavy equipment operator.
Using the Fifth Edition of the AMA Guides, Dr. Hughes assessed
the Plaintiff an 18% functional impairment rating. MMI has not
been reached, as he has had no significant treatment for the lower
back or bilateral hand condition. Dr. Hughes does not feel the
Plaintiff retains the physical capacity to return to the type of work
he was perform~ng at the time of his injury. He should avoid any
prolonged standing or walking; lifting he would suggest 10 pounds
regularly and 20 pound[s] on occasion. He cannot get on and off
5
the equipment safely because.of hand problems and should avoid
bending and twisting the lumbar spine.
_Attached to the Form 107 was an additional report dated
December 19, 2012, in which Dr. Hughes opined the Plaintiff
would be at MMI and that the impairment rating remained the
same, and the restrictions would remain the same. He is of the
opinion that the Plaintiff is incapable of returning to his former
occupation.
The Board quoted from Dr. Hughes's reports as follows:
With respect to causation, [Dr. Hughes] stated as follows:
Within reasonable medical probability, ):he plaintiffs
long history of repetitive injuries as a consequence of
his occupation as a heavy equipment operator for the
past 41 years is the cause of his complaints.
Mr. Stacy has lower back pain, which is a consequence
of his occupation, and he has bilateral hand pain,
which, as he understands it, had been attributed to
arthritis, which also is a consequence of long term
repetitive trauma as a consequence of his occupation.
Under the heading "Explanation of Causal Relationship," Dr.
Hughes provided the following: ·
Mr. Stacy's lower back pain has interfered with his
ability to operate heavy equipment because he cannot
stand, walk or lift. He is able to sit. This has
interfered with his ability to do the ordinary tasks of
daily living at home as well. He has developed
bilateral hand pain attributed to arthritis, which also
limits his ability to use his hands for ordinary tasks at
home or in his job as a driller and heavy equipment
operator. ·
Dr. Hughes assessed a 16% impairment rating broken down as follows:
Lower back pain 5%
Reduced range of motion of the left wrist 5%
Restricted range of motion of the left wrist 1%
6
Reduced grip strength $[sic]6%[.]
In his deposition, Dr. Hughes admitted that he did not Imow how often
Stacy performed various tasks or how much force he used in doing so.
Furthermore, Dr. Hughes could not cite to any specific studies to support his
finding that Stacy had suffered cumulative-trauma injuries. However, he
stated that he believed such studies exist. As to his impairment ratings, Dr.
Hughes admitted that the AMA Guides to the Evaluation of Permanent
Impairmen~ (the Guides) states that loss of grip strength should not be used
when a person has hand/wrist pain. He also admitted that he only did active
range of motion testing when the Guides requires both active and passive
testing if there is a d_eficit. Finally, Dr. Hughes stated that he had no
explanation for Stacy's wrist/hand complaints other than trauma from
repetitive motion.
The Baptist Southeast Orthopeadics/Dr. Belhasen notes indicate that
Stacy complained of bilateral wrist, ankle, and foot pain, and he has a history
of gout. According to Dr. Belhasen, Stacy had apparently learned to control his
gout with diet and medication when he had an acute episode. However, Stacy
noted that his wrist pain had gotten progressively worse and that work activity
"at times [made] his hand pain quite severe." Dr. Belhasen made diagnoses of
gout in the wrists, ankles, and feet in his July 2012 note and "Localized
Primary Arthritis of the Wrist" in his August 2012 note. He stated that Stacy's
• Linda Cocchiarella and Gunnar B.J. Andersson, AMA Guides to the
Evaluation of Permanent Impairment (5th ed. 2012).
7
work as a heavy equipment operator "increased [his] hand and wrist pain," and
noted that Stacy could undergo surgery but that the surgery would likely fail if
Stacy continued working.
Dr. Raiche! listed diagnoses of: hypertension, gout, hyperglycemia, B12
deficiency, testosterone deficiency, and anxiety. His evaluation indicated that
Stacy can only work two hours per day, can only sit and stand for one hour per
day, and sh.ould avoid repetitive hand movements and crawling, squatting, etc.
The M&G Neurophysiology record indicated that Stacy underwent an NCV on
April 29, 2013.which showed evidence of bilateral carpal tunnel syndrome.
Dr. Schiller first evaluated Stacy on February 28, 2013. Stacy advised
Dr. Schiller .that he suffered from low back and wrist pain with wrist and hand
swelling when working. However, Dr. Schiller noted that Stacy had no active
complaints of pain or swelling on that day. Dr. Schiller's examination.revealed
no neurological or range oCmotiori deficits in Stacy's wrists, hands, or lumbar
spine. He made a diagnosis of age-related degenerative changes of the lumbar
spine and noted that Stacy might have arthritis in his wrists; however, he did
not have enough information to render a conclusive hand/wrist diagnosis.
Based on his findings, Dr. Schiller assigned Stacy a 0% permanent impairment
rating for Stacy's back but stated that, because he did not have sufficient
information, he could not assign an impairment rating for Stacy's wrists. Dr.
Schiller stated that Dr. Hughes's impairment ratings were not supported by the
Guides, and that it appeared Dr. Hughes did not know how to use the Guides.
Finally, Dr. Schiller stated that, based on his research, repetitive trauma
8
cannot cause degenerative changes, which are likely related to genetics;
therefore, absent a specific traumatic event, Stacy could not have suffered a
work-related injury.
Dr. Schiller re-evaluated Stacy on May 8, 2013 and reviewed Dr.
Belhasen's medical records. According to Dr. Schiller, Dr. Belhasen found
evidence of "fluid collections over the dorsal aspect of both wrists and a dorsal
portion of [Stacy's] hand" and made a diagnosis of gout involving both wrists
and ankles. Dr. Schiller's examination on May 8 revealed decreased wrist
range of motion bilaterally, but no crepitus, complaints of pain, or evidence of
carpal tunnel syndrome, and the ability to make fists with both hands. Based
on his records review and examinations, Dr. Schiller concluded that Stacy
suffers from "psychosomatic complaints related more to the secondary gain of a
lawsuit than anything else."
Dr. Gabriel examined Stacy at the request of Austin Powder on May 14,
2013 and found decreased wrist range of motion bilaterally and positive Tin el 's
sign bilaterally, but negative Phalen's and median nerve tests. X-rays of
. Stacy's wrists showed mild degenerative changes with inflammatory
arthropathy and Dr. Gabriel made diagnoses of chronic bilateral hand/wrist
pain, gouty/ degenerative arthritis bilaterally; and bilateral carpal tunnel
syndrome. According to Dr. Gabriel, Stacy's complaints are "more likely than
not' related to genetic factors and other "comorbid medical risk factors" rather
that cumulative trauma, which "has not been confirmed as a reason to develop
9
degenerative arthritis." Finally, Dr. Gabriel stated that Stacy had not reached
maximum medical improvement and could use his hands "as tolerated."
Iri his report, audiologist Moore stated that Stacy has moderate to severe
high frequency hearing loss; however, he did not address whether Stacy has a
hearing-related permanent impairment rating. In their report, Ors. Jones and
Ormond stated that Stacy's pattern of hearing loss is compatible with
hazardous workplace noise exposure. They assigned Stacy a 2% permanent
impairment rating, which they attributed to that exposure.
In his deposition, Dr:. Jones testified that, pursuant to OSHA guidelines,
exposure to noise of less than 85 decibels over an eight-hour day is not deemed
to be an injurious exposure. Furthermore, he stated that exposure to noise at
73 decibels or less, with or without hearing protection, would not be expected
to produce hearing loss. Dr. Jones stated that, once a person has hearing loss,
his condition will not improve, but it could·worsen with additional exposure.
Finally, Dr. Jones confirmed his conclusion that Stacy suffered an
occupational noise-related hearing loss; however, he could not state whether
Stacy's last injurious exposure occurred at Austin Powder.
Based on the preceding evidence, the AW found that Stacy suffered an
occupational hearing loss and that Stacy ·was last exposed to "occupational
noise while .employed" by Austin Powder. In so finding, the AW noted that Dr.
Jones's·opinion is granted presumptive weight pursuant to KRS 342.315 and
Austin Powder had not overcome that presumption. However, because Stacy's
'
10
hearing loss permanent impairment rating was less than 8%, the AW awarded
medical expense benefits only.
The AW also found that Stacy suffered cumulative trauma injuries to his
lumbar spine and wrists. In doing so, the ALJ specifically found Stacy's
testimony to be credible and the opinion of Dr. Hughes to be the most
persuasive. The AW then found that Stacy has a 16% permanent impairment
rating as assigned by Dr. Hughes and that, based on his age, education, work
experience, and limitations, Stacy is permanently totally disabled.
Austin Powder appealed to the Board, which affirmed in part, vacated in
part, and remanded. The Board found that Dr. Hughes's Form 107 and
depo_sition testimony supported his objective medical findings. However, the
Board found that Dr. Hughes's assignment of a permanent impairment rating
based on Stacy's loss of grip strength and lumbar spine condition were not
supported by and are contrary to the Guides. However, the Board found that
Dr. Hughes's determination of permanent impairment rating for loss of wrist
range of motion was appropriate under the Guides. As to Stacy's hearing loss,
the Board found that Stacy's report to Dr. Jones that the drill was "a pretty
noisy piece of equipment" was sufficient to support Dr. Jones's opinion .
regarding causation. Thus, the Board affirmed the AW's finding that Stacy has
a 6% permanent impairment rating related to his wrists but vacated the AW's
findings as to Stacy's other injury-related permanent impairment ratings. The
Board also vacated the AW's finding of permanent total disability and
remanded for the AW to make a new determination regarding the onset date of
11
and the extent and duration of Stacy's disability. Finally, the Board noted that
the absence of a permanent impairment rating for Stacy's alleged back injury
was not determinative of the existence of said injury. Therefore, the Board
instructed the AW on remand to determine if Stacy had suffered a repetitive
trauma back injury and if Stacy is entitled to medical expense benefits for
treatment of any such injury.
Stacy and Austin Powder sought review by the Court of Appeals. The
Court of Appeals affirmed the Board's opinion vacating the AW's findings
regarding Stacy's lumbar spine and grip strength permanent impairment
ratings. The Court of Appeals also affirmed the Board's remand for findings
regarding entitlement to medical expense benefits for Stacy's alleged lumbar
spine injury. In doing so, the Court noted that neither party had raised any
issues with those findings by the Board. The Court also affirmed the Board's
finding that the AW did not abuse his discretion by relying on Dr. Hughes's 6%
wrist-related permanent impairment rating and Dr. Jones's 2% hearing-related
permanent impairment rating.
II. STANDARD OF REVIEW.
The AW as fact finder has 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). In
reaching his decision, the AW 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 15, 16 (Ky. 1977). If the party with the
12
burden of proof is successful before the AW, the question on appeal is whether
the AW's opinion was supported by substantial evidence. Whittaker v.
Rowland, 998 S.W.2d 479, 481 (Ky. 1999). Substantial evidence is evidence of
substance and relevant consequence, having the fitness to induce conviction in
the minds of reasonable people. Smyzer v. B.F. Goodrich
G
Chem.
.
Co., 474
S.W.2d 367, 369 (Ky. 1971). However, the AW's discretion is not limitless and
we will reverse the AW if his opinion "is so unreasonable under the evidence
that it must be viewed as erroneous as a matter oflaw." 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 the 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 AW'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. Hand/wrist permanent impairment rating.
Austin Powder argues that the AW 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 Guides; and (2) Dr. Hughes's opinion
was insubstantial because he: (a) had a faulty history; (b) knew nothing of
13
Stacy's work duties; (c) could not identify the source of Stacy's pain; and (d)
relied on Stacy's "hearsay" statement that he had arthritis in his wrists. We
'
address each argument in turn below.
1. Calculation of permanent impairment rating.
Dr. Hughes admitted the Guides 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. We
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 9n his
findings. As noted in Section 16.4 page 451 of the Guides, "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 Guides
states that active motion testing takes precedence, we cannot say that Dr.
Hughes's clinical judgment to forego passive range of motion testing was
beyond acceptable practice under the Guides.
14
Second, Austin Powder's reliance on Jones v. Brasch-Barry 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 Jones 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 AW found that Jones had a 26% permanent impairment rating.
Id. The Board reversed the AW, 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 AW 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
15
in the Guides. There is no evidence that the permanent impairment rating
assigned by Dr. Hughes was not supported by his findings or that itwas in
excess of the rating provided for in the Guides .. 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 Guides requires both
active and passive range of motion testing; however, as set forth in the Guides
active range of motion takes precedence. The AW 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 Guides. Therefore, we
agree with the Court of Appeals that Dr. Hughes's opinion regarding Stacy's
wrist permanent impairment rating was based on the Guides.
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.
16
a. Faulty 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 AW 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 repetitively 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 AW 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 uru;eliable as a matter of law. In reaching this
conclusion, we note that Austin Powder has not cited us to any authority
stating that a physician who lacks such specific information regarding the
17
nature of an employee's work is foreclosed from expressing an opinion
regarding causation. Nor has it cited us to any authority that an AW 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 op~ion 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 342.0011(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
18
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 342.0011(33)," Gibbs v. Premier Scale Co./Indiana Scale Co.,.
50 S.W.3d 754, 762 (Ky. 2001), as modified
. .
on cienial ofreh'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. Raiche!, 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. Raiche! made diagnoses of hypertension,
gout, hyperglycemia, B12 deficiency, testosterone deficiency, and anxiety.
However, we note.that Dr. Raiche! 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 carp;;i.l tunnel.
syndrome. Dr. Schiller stated that Stacy might have degenerative arthritis in
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 AW to find in Austin Powder's favor. As noted above, the AW 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
15, 16 (Ky. 1977). Here, the AW 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 that
When audiograms and other testing reveal a pattern of hearing loss
compatible with 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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I
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 AW was free to believe Stacy's assessment of the
noise level of the drill, as was Dr. Jones. Furth~rmore, based on Stacy's
testimony that he did not realize he had a hearing loss until tested in
September 2012, the AW 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 Appe,als, the Board, and the AW with regard to Stacy's hearing loss
claim.
IV. CONCLUSION.
The Court of Appeals is affirmed. The AW'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
' (1) whether
matter is remanded to the AW with instructions to determine:
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 AW 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 AW 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
Morgan Collins & Yeast
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