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Slaven v. General Electric Co.5/13/2005
n percent and the ALJ appears to have believed Dr. Goris's assessment was more accurate. The ALJ, as fact-finder, has the sole authority to determine the weight, credibility, substance, and inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Where evidence is conflicting, the ALJ may choose whom and what to believe. Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977). The ALJ may choose to believe parts of the evidence and disbelieve other parts, even when it comes from the same witness or the same party's total proof. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977).
Slaven contends the ALJ erred in stating that he received income from outsources, CDs, bonds, a farm, and from his package liquor store, and from extending this finding to a finding that Slaven is earning wages, per Mr. Mitchell's testimony. Rob Mitchell is a CPA who reviewed Slaven's business records from the liquor store. Mitchell acknowledged that Slaven received no wages from the liquor store, that Slaven's profits came from a Schedule C. However, Slaven admitted to hanging out at the store five or six times a week, waiting on some customers, and even putting up some stock (bottles). The Board looked at Slaven's argument and concluded:
The ALJ's conclusion that "Mitchell's testimony indicates that [Slaven] is earning wages" in the context in which it appears in the opinion, although not artfully stated, represents nothing more than a recognition that Slaven is capable of work. This is especially true in light of the medical testimony from Dr. Arias and Dr. Goris and the vocational testimony from Wagner and Clouse that Slaven can perform work. While there was other evidence which might support an award of total occupational disability, that evidence in no way compels the result Slaven seeks. See McNutt Construction/First General Services v. Scott, [40 S.W.3d 854 (Ky. 2001)].
We cannot say the ALJ or Board erred in evaluating the evidence.
Slaven next argues that he is totally disabled because Dr. Goris's testimony is inadmissible. With our conclusion that Slaven failed to object to Dr. Goris's review of the videotape of the surveillance, Dr. Goris's testimony stands and, again, under Paramount Foods, Inc., 695 S.W.2d 418, the ALJ is free to believe Dr. Goris.
Finally, Slaven argues that he is entitled to medical benefits for his hearing loss under Caldwell Tanks v. Roark, 104 S.W.3d 753 (Ky. 2003), which allowed medical benefits where there was an increase in the hearing loss although there was not an increase in the impairment rating. Dr. Mumford compared the 2002 audiogram with the 1993 audiogram and found virtually no change. Therefore, unlike Caldwell Tanks, there was no increase in hearing loss as well as no increase in impairment rating.
The function of the Court of Appeals in reviewing a decision of the Workers' Compensation Board is to correct the Board only where the Court perceives the Board has overlooked or misconstrued statutes, precedent, or has flagrantly erred in assessing the evidence so as to cause a gross injustice. Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992). We find no such errors and therefore AFFIRM the decision of the Workers' Compensation Board.
ALL CONCUR.
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