Paramount Foods, Inc. v. Burkhardt

• Decision Date: 13 June 1985
• Docket Number: No. 84-SC-1070-DG,84-SC-1070-DG
• Citation: Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985)
• Parties: PARAMOUNT FOODS, INC., Appellant, v. John BURKHARDT and Workers' Compensation Board, Appellees.
• Court: Supreme Court of Kentucky

Page 418

695 S.W.2d 418

PARAMOUNT FOODS, INC., Appellant, v.John BURKHARDT and Workers' Compensation Board, Appellees.

No. 84-SC-1070-DG

Supreme Court of Kentucky.

June 13, 1985.

Rehearing Denied Sept. 26, 1985.

Timothy P. O'Mara, Kendrick R. Riggs, Middleton & Reutlinger, Louisville, for appellant.

Allen Weiss, David L. Waterman, Morris, Garlove, Waterman & Johnson, Louisville, for appellee.

WINTERSHEIMER, Justice.

This appeal is from an opinion of the Court of Appeals which reversed a judgment of the circuit court affirming the decision of the Workers' Compensation Board not to award permanent partial total disability benefits to Burkhardt.

The questions presented are whether the Court of Appeals applied the proper standard of review and whether the Court of Appeals invaded the province of the Workers' Compensation Board as to fact finding.

Burkhardt, age 63 and a 35-year employee at the time of the accident, fell into a large pickle tank and dislocated his right shoulder.After a brief hospitalization, he returned to work and continued to work for almost a year.At that time he was returned to the hospital for a shoulder manipulation.This procedure was successful, and he was released to return to work.Shortly thereafter, he decided to retire.

The Board awarded temporary total benefits, but denied any permanent partial or permanent total benefits based on the evidence.The circuit court upheld the decision of the Board.The Court of Appeals determined that the Board had attempted to overrule Osborne v. Johnson, Ky., 432 S.W.2d 800(1968), and that all the evidence indicates that the claimant had suffered a permanent injury and sustained a loss to future earning capacity as a result of the injury.This Court then granted discretionary review.

This Court reverses the decision of the Court of Appeals because the wrong standard of review was applied to this situation.In order to reverse the findings of the Board unfavorable to a claimant, the evidence must be so overwhelming as to compel a finding in his favor of permanent occupational disability.Howard D. Sturgill & Sons v. Fairchild, Ky., 647 S.W.2d 796(1983);Wagoner v. Smith, Ky., 530 S.W.2d 368(1975).

Here the Court of Appeals limited its review of the Board's finding of fact to whether the decision and award was clearly erroneous.The Court of Appeals ignored the standard set out in Sturgill, supra that in order to reverse the finding of the Board, the claimant must present evidence that is so overwhelming as to compel a decision in his favor.The Court of Appeals chose some evidence over other in the record and made its own decision.

The Board, as the finder of fact, and not the reviewing court, has the authority to determine the quality, character and substance of the evidence presented to the Board.Here, the findings of the Board were based on evidence of substantial quality and the reviewing court is bound by the record.Armco Steel Corp. v. Mullins, Ky., 501 S.W.2d 261(1973).The only medical...