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Bowling v. Leslie County Board of Education4/22/2005
r, by order of the Commissioner issued August 15, 2003, Bowling's case was assigned to ALJ King for purposes of final adjudication. In addition to Bowling's testimony by deposition and at hearing, evidence submitted for the ALJ's consideration consisted of medical records and reports from Dr. Williams, Dr. Gilbert, Excel Rehabilitation Services, Mary Breckinridge Hospital, Hazard ARH and Dr. Timothy C. Kriss. Also submitted was a copy of Bowling's July 10, 2002, CDL medical examination report.
The ALJ reviewed the conflicting evidence and concluded that any work-related injury received on August 3, 2001, had resolved itself by August 22, 2001, and that the current complaint, surgery, etc., related to a subsequent non- work related injury. The Board affirmed and Bowling appeals to this Court.
The claimant in a workers' compensation claim bears the burden of proving each of the essential elements of his claim. Snawder v. Stice, 576 S.W.2d 276 (Ky.App. 1979). 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 the 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).
Since Bowling was unsuccessful below, the question on appeal is whether the evidence was so overwhelming as to compel a finding in his favor. Paramount Foods, 695 S.W.2d 418. Compelling evidence has been defined as evidence so persuasive that it was clearly unreasonable for the ALJ not to be convinced by it. Hudson v. Owens, 439 S.W.2d 565 (Ky. 1969). We must also be mindful that it is not enough for Bowling to show that the record contains some evidence which might support a reversal of the ALJ's decision. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). So long as the ALJ's determination is supported by any evidence of substance, it cannot be said that the evidence compels a different result. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
In Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992), our Supreme Court set the standard of review as:
" he WCB is suppose to decide whether the evidence is sufficient to support a particular finding made by the ALJ, or whether such evidence as there was before the ALJ should be viewed as uncontradicted and compelling a different result."
Id. at 687. In further review before the Court of Appeals,
he WCB is entitled to the same deference for its appellate decisions as we intend when we exercise discretionary review of Kentucky Court of Appeals decisions in cases that originate in circuit court. The function of further review of the WCB in the Court of Appeals is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.
Id. at 687-688.
The issue on appeal in this case relates to a finding of fact. In our review of the record, we find no compelling evidence in favor of Bowling. The evidence is conflicting, but the evidence is not so overwhelming as to compel a different result.
For the foregoing reasons, we do not believe the ALJ and the Board were clearly erroneous and therefore we affirm.
ALL CONCUR.
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