# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOTTO BE PUBLISHED AND SHALL NOT BE CITED OR.USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY_COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, · RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: AUGUST 24, 2017 NOT TO BE PUBLISHED 

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2016-SC-000347-WC

AUSTIN POWDER COMPANY APPELLANT
ON APPEAL FROM COURT OFAPPEALS 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 LawJudge (AW) found thatBilly Keith Stacy suffered from an occupational noise-induced hearingloss 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 ofAppeals, which affirmed the Board in part and reversed in part.I Austin Powder appeals to this Courtarguingthatthe portion ofthe AW's opinion affirmed by the Board and the Court ofAppeals was not supported by evidence ofsubstance and should be reversed in its entirety. Having reviewed the record, the lengthy and well-reasoned opinions from below, and the arguments ofthe 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 offonApril 1_6, 2012. Following his last day of

. . work, Stacyfiled workers'compensation claims for: cumulative-traumainjuries 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 ofthe evidence filed in his coal workers' pneumoconiosis claim. Stacy operated a piece ofheavy equipment called a drill. As a drill operator, Stacywas required to measure and lay out grids along an area to be surface mined and to markwhere he would drill holes for blasting. This required him to climb in and out ofthe drill's cab. Once an areawas marked,

1 The Boardrendered 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 whatportion, ifany, ofStacy's cumulative traumainjury occurred while Stacy was employed byAustin Powder and the onset date ofStacy's injuries. The Board then instructed the AW to apportion any entitlement to benefits accordingly. The Court ofAppeals, based on Hale, reversed the Board's findings ort those two issues. 2Stacy satin whathe 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 hisjob as not requiring a great deal ofphysical exertion and testified that he wore hearing protection while working. Stacy testified that he could sit for longperiods 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 thathe was notreceiving any specific medical treatment for his physical conditions. As to his hearing loss, Stacy did notrealize 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 coordinatorfor Austin Powderwhen Stacyworked 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 hearingprotection Stacywore reduced the noise level by 32 decibels. In support ofhis injury claim, Stacy filed reports from Dr. Hughes; the August 22, 2012 note from Baptist Southeast Orthopeadics/Dr. Belhasen; the physical capacities evaluation ofDr. Raiche!; and theApril 29, 2013 NCV report from M&G Neurophysiology. Austin Powder filed several reports and the deposition ofDr. Schiller, the deposition ofDr. Hughes, the July 25, 2012 note from Baptist Southeast Orthopeadics/Dr. Belhasen, and the report ofDr. 3Gabriel. In support ofhis hearing loss claim, Stacy filed the September 6, 2012 report from audiologistRobert Moore. Pursuant to KRS 342.315(2) and 803 KAR 25:010(11), the Department ofWorkers' Claims filed the February 19, 2013 Form 108-HL, Medical Report- Hearing Loss ofDrs. Jones and Ormond. Austin Powder filed the deposition ofDr. Jones. We summarize that medical evidence below. The parties, the AW, the Board, and the Court ofAppeals discuss Dr. Hughes's reports in detail. Forreasons that are .unclear, those reports are not in the record before us; however, neitherparty has indicated that the reports

were not filed with the Department ofWorkers' Claims orwere not properly in evidence, orwere not in the record before the Board and the Court ofAppeals.2 Although Austin Powder objects to theAW's reliance on Dr. Hughes's reports, it does not dispute the accuracy ofthe AW's summary ofthose reports or the. Board's quotes from those reports.3 Therefore, we adopt the following summary ofDr. Hughes's reports by theAW 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. Stacyrelated to Dr. Hughes an employmenthistory ofbeing employed as a drill operatorwhere

· 2 The CourtofAppealsissued an orderto theDepartment ofWorkers' Claims requestingthatit supplementtherecordbyproducing documents associated with Stacy'sinjuryclaim. The Departmentdid provide a supplement; however, the supplementthat this Courthas containsrecords relatedto Stacy's coalworkers' pneumoconiosis claim, nothisinjury claim. 3 We notethe AW statedinhis opinion and award thatDr. Hughes assigned an 18% permanentimpairmentratingwhenDr. Hughes had actually assigned a 16% permanentimpairmentrating. The AW corrected thatfinding inhis orderon reconsideration. 4[he] had a gradual onset oflower back pain with standing and walkingbeginning 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 butis unable to run rock trucks, graders, loaders, ahd dozers. He has a past history ofhypertension and gout affecting particularly the rightfoot and was unable to work when:the gout is active. He has had pain in both hands for the past sevenyears. 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% hearingloss. Dr. Hughes reviewed the medical report ofDale 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 Plaintiffwith lower back pain and bilateral hand and wrist pain andreduced range ofmotion and strength. Dr. Hughes opined that the Plaintiffslong history ofrepetitive injuries ;,ts a consequence ofhis occupation as a heavy equipment operator for the past41 years is the cause ofhis complaints. Dr. Hughes notes that Mr. Stacy's lowerback pain has interfered with his ability to operate heavy equipment because he cannot stand, walk, orlift. He is able to sit. This has interferedwith his ability to perform ordinary tasks ofdailyliving 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 hisjob as a driller and heavy equipment operator. Using the Fifth Edition oftheAMA Guides, Dr. Hughes assessed the Plaintiffan 18% functional impairment rating. MMI has not been reached, as he has had no significanttreatmentfor the lower back or bilateral hand condition. Dr. Hughes does not feel the Plaintiffretains the physical capacity to return to the type ofwork he was perform~ng at the time ofhis injury. He should avoid any prolonged standing orwalking; lifting he would suggest 10 pounds regularly and 20 pound[s] on occasion. He cannot get on and off
5the equipment safelybecause.ofhand 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 ofthe opinion that the Plaintiffis incapable ofreturning 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 ofrepetitive injuries as a consequence of his occupation as a heavy equipment operator for the past 41 years is the cause ofhis complaints. Mr. Stacy has lower backpain, which is a consequence ofhis occupation, and he has bilateral hand pain, which, as he understands it, had been attributed to arthritis, which also is a consequence oflongterm repetitive trauma as a consequence ofhis occupation. Under the heading "Explanation ofCausal 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 orlift. 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 hisjob as a driller and heavy equipment operator. · Dr. Hughes assessed a 16% impairment rating broken down as follows: Lower backpain 5% Reduced range ofmotion ofthe leftwrist 5% Restricted range ofmotion ofthe left wrist 1% 6Reduced grip strength $[sic]6%[.] In his deposition, Dr. Hughes admitted that he did not Imow how often Stacyperformed various tasks or howmuch 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-traumainjuries. However, he stated that he believed such studies exist. As to his impairmentratings, Dr. Hughes admitted that theAMA Guides 

### to the Evaluation ofPermanent Impairmen~ (the Guides) states thatloss ofgrip strength should not be used when a person has hand/wrist pain. He also admitted that he only did active range ofmotion testing when the Guides requires both active and passive testing ifthere 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 ofbilateral wrist, ankle, and foot pain, and he has a history ofgout. According to Dr. Belhasen, Stacyhad apparently learned to control his goutwith diet and medication when he had an acute episode. However, Stacy noted that his wrist pain had gotten progressivelyworse 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 PrimaryArthritis ofthe Wrist" in his August 2012 note. He stated that Stacy's

• Linda Cocchiarellaand Gunnar B.J. Andersson, AMA Guides to the Evaluation ofPermanent Impairment (5th ed. 2012). 7work 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 onlywork 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 Stacyunderwent an NCV on April 29, 2013.which showed evidence ofbilateral carpal tunnel syndrome. Dr. Schiller first evaluated Stacy on February 28, 2013. Stacy advised Dr. Schiller.thathe suffered from low back and wristpain with wrist and hand swellingwhen working. However, Dr. Schillernoted that Stacy had no active complaints ofpain 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 ofage-related degenerative changes ofthe lumbar spine and noted that Stacymight 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 nothave sufficient information, he could not assign an impairment ratingfor Stacy's wrists. Dr. Schiller stated that Dr. Hughes's impairmentratings 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 8cannot cause degenerative changes, which are likely related to genetics; therefore, absent a specific traumatic event, Stacy could nothave suffered a work-related injury. Dr. Schillerre-evaluated Stacy on May 8, 2013 and reviewed Dr. Belhasen's medical records. Accordingto Dr. Schiller, Dr. Belhasen found evidence of "fluid collections over the dorsal aspect ofboth wrists and a dorsal portion of [Stacy's] hand" and made a diagnosis ofgout involving both wrists and ankles. Dr. Schiller's examination on May 8 revealed decreased wrist range ofmotion bilaterally, butno crepitus, complaints ofpain, or evidence of carpal tunnel syndrome, and the abilityto 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 ofa lawsuit than anything else." Dr. Gabriel examined Stacy at the request ofAustin Powder on May 14, 2013 andfound decreased wristrange ofmotion bilaterally and positive Tinel'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 ofchronic bilateral hand/wrist pain, gouty/degenerative arthritis bilaterally; and bilateral carpal tunnel syndrome. Accordingto 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 notbeen confirmed as a reason to develop

9degenerative 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 Stacyhas a hearing-related permanent impairment rating. In their report, Ors. Jones and Ormond stated that Stacy's pattern ofhearingloss is compatible with hazardous workplace noise exposure. They assigned Stacy a 2% permanent impairmentrating, which they attributed to that exposure. In his deposition, Dr:. Jones testified that, pursuant to OSHA guidelines, exposure to noise ofless 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 orless, with orwithouthearing protection, would not be expected to produce hearingloss. 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-relatedhearing loss; however, he could not state whether Stacy'slast injurious exposure occurred atAustin Powder. Based on the preceding evidence, theAW found that Stacy suffered an occupationalhearing loss and that Stacy·was last exposed to "occupational noise while.employed" byAustin Powder. In so finding, the AW noted that Dr. Jones's·opinion is granted presumptive weightpursuant to KRS 342.315 and Austin Powder had not overcome thatpresumption. However, because Stacy's '

10hearingloss permanentimpairmentrating was less than 8%, theAW awarded medical expense benefits only. The AW also found that Stacy suffered cumulative trauma injuries to his lumbar spine and wrists. In doing so, theALJ specifically found Stacy's testimonyto be credible and the opinion ofDr. Hughes to be the most persuasive. TheAW 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, Stacyis permanently totally disabled. Austin Powder appealed to the Board, which affirmed in part, vacated in part, and remanded. The Board found thatDr. Hughes's Form 107 and depo_sition testimony supported his objective medical findings. However, the Board found that Dr. Hughes's assignment ofa permanent impairmentrating based on Stacy's loss ofgripstrength and lumbar spine condition were not supported by and are contrary to the Guides. However, the Board found that Dr. Hughes's determination ofpermanentimpairmentratingfor loss ofwrist range ofmotion 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 ofequipment" was sufficientto support Dr. Jones's opinion

. regarding causation. Thus, the Board affirmed theAW's finding that Stacyhas

a 6% permanent impairmentratingrelated to his wrists butvacated the AW's findings as to Stacy's otherinjury-related permanent impairmentratings. The Board also vacated theAW's finding ofpermanent total disability and remanded for theAW to make a new determination regarding the onset date of 11and the extent and duration ofStacy's disability. Finally, the Board noted that the absence ofa permanent impairmentrating for Stacy's alleged back injury

was not determinative ofthe existence ofsaid injury. Therefore, the Board instructed the AW on remand to determine ifStacy had suffered a repetitive trauma back injury and ifStacy is entitled to medical expense benefits for treatment ofany such injury. Stacy andAustin Powder sought review by the Court ofAppeals. The Court ofAppeals affirmed the Board's opinion vacating theAW's findings regarding Stacy's lumbar spine and grip strength permanent impairment ratings. The Court ofAppeals 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 thatneitherparty had raised any issues with those findings by the Board. The Court also affirmed the Board's finding that theAW did not abuse his discretion by relying on Dr. Hughes's 6% wrist-related permanentimpairment rating and Dr. Jones's 2% hearing-related permanent impairment rating. II. STANDARD OF REVIEW. TheAW as fact finder has the sole authority tojudge the weight,

. credibility, substance, and inferences to be drawn from the evidence. 

### ParamountFoods, 

### Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). In reachinghis decision, theAW is free to choose to believe or disbelieve parts of the evidence from the total proof, no matterwhich party offered it. 

### Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). Ifthe partywith the 12burden ofproofis successful before the AW, the question on appeal is whether the AW's opinion was supported by substantial evidence. 

### Whittakerv. 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 ofreasonable people. 

### Smyzer v. B.F. Goodrich Chem. Co., 474 G

. S.W.2d 367, 369 (Ky. 1971). However, theAW's discretion is not limitless and

we will reverse theAW ifhis opinion "is so unreasonable under the evidence that itmust be viewed as erroneous as a matter oflaw." 

### IraA. Watson Dep't. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). Furthermore, when there are mixed questions offact and law, we have greaterlatitude in determining ifthe underlying decision is supported bythe evidence. 

### Purchase Transp. Servs. v. Estate ofWilson, 39 S.W.3d 816, 817-18 (Ky. 2001); 

### UninsuredEmployers'. Fund v. Garland, 805 S.W.2d 116, 117 (Ky. 1991). 

### III. ANALYSIS. Austin Powder argues that theAW's findings that Stacyhas a 6% permanent impairment rating related to his hands and wrists and a 2% permanentimpairmentratingrelated 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 13Stacy's work duties; (c) could notidentify the source ofStacy's pain; and (d) relied on Stacy's "hearsay" statement thathe had arthritis in his wrists. We ' address each argumentin turn below. 1. 

### Calculation ofpermanent impairment rating. Dr. Hughes admitted the Guides provides that, ifactive range ofmotion testing shows a deficit, an evaluator should test motion passively. Because he believed he might cause Stacy pain ifhe performed passive range ofmotion testing, Dr. Hughes onlymeasured Stacy's active range of.motion. Austin Powder argues that, because Dr. Hughes did notperform passive range of motion_testing, his permanentimpairmentratinglacks any credibility. We disagree with Austin Powder's argument for two reasons. First, we note thatAustin Powder appropriately does not contest Dr. Hughes's finding that Stacyhad decreased range ofmotion, a finding that both ofits experts, Drs. Gabriel and Schiller, also made. Thus, the issue is not whether Stacy had a loss ofrange ofmotion butwhether Dr. Hughes appropriately arrived at his permanentimpairmentrating based 9n his findings. As noted in Section 16.4 page 451 ofthe Guides, 

### "Measurements of active motion takeprecedence in the Guides

. ... [and] [s]ound clinical knowledge and measurementtechniques are necessary for appropriate .impairment evaluation and rating." (Emphasis_in original.) Since the Guides states that active motion testingtakes precedence, we cannot say that Dr. Hughes's clinicaljudgmentto forego passive range ofmotion testing was beyond acceptable practice under the Guides. 14Second, 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 ofthe physicians assessed Jones a 10% permanent impairmentrating and one assessed him a 26% permanentimpairmentrating. Id. The physician who assessed the 26% permanentimpairment rating admitted thatJones "did not 

### meet the textbook definition" necessary to support that rating. Id. The physician explained his permanent impairment rating by stating "thatthe category definitions in theAMA Guides are meant to be used solely as the

name ofthe text implies, as a guide." Id. at 152. Based on that physician's opinion, the AW found thatJones had a 26% permanent impairmentrating. Id. The Board reversed the AW, holding that the finding ofa "twenty-six percent (26%) permanent impairmentwas not, as a matter ofstatutory law, supported by substantial evidence." Id. The Court ofAppeals affirmed, holdingthat: (A]n AW cannot choose to give credence to an opinion ofa physician assigning an impairment rating that is not based upon the AMA Guides. In otherwords, a physician's latitude in the field ofworkers' compensation litigation extends onlyto the assessment ofa disabilityratingpercentage within that called forunderthe appropriate section oftheAMA 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 disagreementwith the disability percentages called for in theAMA Guides(.] Id. at 153. In 

### Jones the physician assessed

# apermanent impairmentrating that was not supported by his findings and thatwas in excess ofthe rating provided for 15in the Guides. There is no evidence thatthe permanent impairmentrating assigned by Dr. Hughes was not supported byhis findings or that itwas in

excess ofthe rating provided for in the Guides

.. The dispute is with the method Dr. Hughes used to measure Stacy's range ofmotion, which is a different matter entirelyfrom that considered by the Court ofAppeals in 

### Jones. As noted above, Dr. Hughes admitted thatthe Guides requires both active and passive range ofmotion testing; however, as setforth in the Guides active range ofmotion takes precedence. TheAW mighthave discredited Dr. Hughes's opinion because he did notperform both active and passive range of motion testing. However, because active range ofmotion testing takes precedence, Dr. Hughes's permanent impairmentrating, which was based on active range ofmotion testing, was consistentwith the Guides. Therefore, we agree with the Court ofAppeals that Dr. Hughes's opinion regarding Stacy's wristpermanentimpairmentrating was based on the Guides. 2. Substantial evidence. As set forth above, Austin Powder argues thatDr. Hughes's opinion was also insubstantialbecause Dr. Hughes: (a) had a faulty history; (b) knew nothing ofStacy's work duties; (c) could notidentifythe source ofStacy's pain; (d) relied on Stacy's "hearsay" statement thathe 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 ofStacy's history ofgoutin his wrists as contained in Dr. Belhasen's records. Dr. Hughes admitted that he was not an expertregarding gout, and, as the Board noted, Dr. Hughes did not make any reference to Dr. Belhasen's reports. The problem with this argumentis that Dr. Belhasen's diagnoses-goutin the wrists in July 2012 and localized osteoarthritis ofthe wrists inAugust 2012-are arguably inconsistent. TheAW could have found that Dr. Hughes's failure to cite to Dr. Belhasen'srecords 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 oflaw. 

### b. Failure to understand the physical demands ofStacy's work. Austin Powder argues that Dr. Hughes's opinion is insubstantially unreliable because Dr. Hughes could not state that Stacyrepetitivelyused his hands and arms atwork. Furthermore, he could not state with specificitywhat actual movements Stacy made orhow oftenhe made those movements. According toAustin 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 theAW 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 oflaw. In reaching this conclusion, we note thatAustin Powder has not cited us to any authority stating that a physician who lacks such specific information regarding the 17nature ofan employee's work is foreclosed from expressing an opinion regarding causation. Norhas itcited us to any authority that an AW is foreclosed from relying on such an opinion.



### c. Source ofStacy's pain. Austin Powder argues thatDr. Hughes did not state specificallywhat the

source ofStacy's pain is, therebyrendering 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 ofarthritis. Austin Powder argues that the only evidence Dr. Hughes had·that Stacy has arthritis came from Stacy's self-report. While thatmay be true, there is medical evidence that Stacyhas arthritis in his wrists as reported by Dr. Belhasen (localized primary osteoarthritis ofthe wrist) and Dr. Gabriel (mild degenerative changes with inflammatory arthropathy ofthe wrist). Thus, Dr. Hughes's statement that Stacyhas arthritis is supported by medical evidence and not solelydependent for its credibility on Stacy's self-report.


### e. Failure to find a harmful change evidencedby objective medical findings. KRS 342.0011(1) defines injury as "anywork-related traumatic event or series oftraumatic events, including cumulative trauma, arising out ofand in the course ofemploymentwhich 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 ofpain, which is a 18symptom 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. PremierScale 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 ofa 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 ofsuch a change." 

### Id. Here, Dr. Hughes found evidence ofloss ofrange ofmotion through the

use ofa standardized method oftesting and thatfinding demonstrated the existence ofpain, a symptom ofthe change. Furthermore, there is evidence from Dr. Belhasen and Dr. Gabriel that Stacyhas arthritis in his wrists, which is clearly a harmful change evidenced by objective medical findings. Finally, we note thatAustin Powder stated that "Drs. Raiche!, Belhasen, Gabriel, and Schiller

... all diagnosed gouty arthritis, not cumulative trauma."

. While it is true that none ofthose physicians made a diagnosis ofcumulative trauma, Austin Powder.'s statementis not exactly a correct representation of those physicians' diagnoses. Dr. Raiche! made diagnoses ofhypertension, 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 orwrists or both. Dr. Belhasen made two diagnoses

- goutin the hands, wrists, and feet in July 2012 and localized primary arthritis ofthe wrist in 19August 2012. He also noted that Stacy'swork activitycaused his complaints of pain to increase. Dr. Gabriel made diagnoses ofchronic bilateral hand/wrist

· pain, gouty/degenerative arthritis bilaterally, and bilateral carp;;i.l tunnel.

syndrome. Dr. Schiller stated that Stacymight have degenerative arthritis in his wrists; however, he had insufficientinformation to categoricallyreach that diagnosis. Even ifAustin Powderwere correct and all fourphysicians had made a diagnosis ofgouty arthritis, those diagnoses would not have compelled the AW to find in Austin Powder's favor. As noted above, theAW is free to choose to believe or disbelieve parts ofthe evidence from the total proof, no matterwhich partyoffered it. 

### Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). Here, theAW chose to believe Stacy's proof, which he was free to do. Therefore, we affirm the Court ofAppeals with regard to Stacy's injury claim. B. Hearing loss permanent impairment rating. KRS 342.7305(4) provides that When audiograms and other testingreveal a pattern ofhearing 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 exclusivelyliable 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 Stacywas repeatedly exposed to hazardous noise. However, Austin Powder does dispute whether Stacywas injuriously exposed to 20

Ihazardous noise while in its employ. In support ofthatposition, Austin Powderpoints out that Dr. Jones did notknow the decibel level ofnoise to which Stacy was exposed atwork. 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 hearingprotection would have brought the decibel level

even lower. However, Stacy advised Dr. Jones that the drill was noisy and the cab was notpressurized. The AW was free to believe Stacy's assessment ofthe noise level ofthe 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, theAW was free to infer Stacy's hearing loss was caused, partially ifnotwholly, byhis workfor Austin Powder. Therefore, we affirm the Court ofAppe,als, the Board, and theAW with regard to Stacy's hearing loss claim. IV. CONCLUSION. The Court ofAppeals is affirmed. The AW's findings that Stacy has permanent impairmentratings for his lumbar spine and loss ofgrip 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 entitlinghim 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 ofStacy's wristrelated disability. TheAW should note that, byvacating the prior finding of 21permanenttotal disability, we do not intend to foreclose such a finding on remand. Ifthe AW believes thatthe evidence supports such a finding on remand, then he or she is free to make thatfinding and to award benefits accordingly. All sitting. All .concur.

COUNSEL FOR APPELLANT: Walter Elliott Harding Boehl Stopher & Graves, LLP COUNSEL FORAPPELLEE, BILLY KEITH STACY: McKinnley Morgan Morgan Collins & Yeast



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