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Harrington v. TFE Group5/19/2005
ed by the claimant. The ALJ was concerned that the claimant neither sought nor received any medical care for the sunburn.
The burden of proof and risk of nonpersuasion are on the claimant relative to each and every essential element of the claim. Snawder v. Stice, 576 S.W.2d 276 (Ky.App. 1979). See also Burton v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky. 2002). As a finder of fact, the AU has the sole authority to determine the quality, character and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). In addition, the AU has the sole authority to judge the weight and inferences to be taken from the evidence. Miller v. East Ky. Beverage/PepsiCo, Inc., 951 S.W.2d 329 (Ky. 1997). As the fact finder, the AU may reject any testimony and believe or disbelieve various parts of the evidence. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).
In order to reverse a decision of the ALJ, it must be demonstrated that there was no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). There is no doubt that the evidence regarding the actual occurrence of a work-related injury is conflicting. The Board observed that there was certainly sufficient evidence to support both an award of benefits as well as the dismissal issued by the ALJ. The Board also stated that it is only by the barest of margins can it be said that the conclusions of the AU are totally without merit. The Board also indulged in dicta that another finder of fact might have interpreted the evidence differently, although that kind of speculation is of no benefit to the claimant.
In this instance, Harrington was unsuccessful in his burden of proof before the ALJ. The question on appeal is whether the evidence was so overwhelming, upon consideration of the entire record, as to compel a finding in his favor. See Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984). Compelling evidence is evidence that is so overwhelming that no reasonable person could arrive at the same conclusion reached by the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.App. 1985). As long as there is any evidence of substance which supports the decision of the ALJ, the Board or Court cannot reverse on appeal. Special Fund v. Francis, supra.
The Board may not substitute its judgment on appeal for that of the AU in matters involving the weight to be given to the evidence in questions of fact. KRS 342.285(2).
A careful review of the record in this case indicates that the AU considered all the lay and medical testimony in the record in very great detail. The Board, in a unanimous opinion, determined that it was within the province of the AU to rely on the evidence presented to him. The Board correctly determined that it did not have the authority to overrule the AU or substitute its judgment for his in matters involving the weight to be given to the evidence in questions of fact. Both the Board and the Court of Appeals were sympathetic to the claimant, but as a matter of law, could not reach his complaints. The Court of Appeals correctly stated that the evidence here was not so overwhelming as to require it to supersede the findings of the Board or the ALJ. See Western Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky. 1992)
The opinion of the Court of Appeals is affirmed.
All concur.
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