IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR.USED AS BINDING PRECEDENT IN ANY OTHER 

CASE IN ANY_COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS, · 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

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ACTION. 
RENDERED: AUGUST 24, 2017 

NOT TO BE PUBLISHED 

"uptttut Qlnutf nf ~tnfurku 

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; 

HON. R. SCOTT BORDERS, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

APPELLEES 

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 Chem. Co., 474 G . 

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 

matter ' is remanded to the AW with instructions to determine: (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 wristrelated 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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