Tucker v. Tri-State Lawn & Garden, Inc.

LESTER, Judge.

This is an appeal from a judgment affirming an order of the Workers’ Compensation Board dismissing appellant’s claim.

Linda Tucker hurt her back on August 1, 1978, while in the employment of appellee, Tri-State Lawn and Garden, Inc. She notified the employer of the incident but did not “miss any substantial amount of work.” However, even though she claimed she had continuing back problems for which she was seeing a doctor, she failed to relate this to Tri-State. In December, 1979, Tucker left her employment and the following month, she took a clerical position with Construction Machinery Corporation where she remained at least until the filing of her application for adjustment of her claim.

In January, 1982, appellant again experienced back problems for which she underwent conservative treatment. However, in October of that year, it became necessary for Dr. James Carothers to remove a herniated disc which he indicated, based upon his observation and surgical procedure, was a fresh rupture of less than six weeks duration as of the time of removal. Interestingly enough, Linda Tucker failed to mention the 1978 incident to the orthopedic surgeon contenting herself with merely relating that she started having back and right leg pain in January, 1982. As to a causative relationship between the 1978 and 1982 problems, Dr. Carothers characterized it as a “possibility.”

The Board, in dismissing the claim, found that the employee had “failed to prove a sufficient relationship between the work-related injury on August 1, 1978, and the subsequent herniated disc surgery over four years later.” Upon appeal, the circuit court pointed out:

In her Petition for Appeal, Appellant claims ‘. there was no probative and material evidence within the record to support the conclusion of the Board that the Appellant’s disability lacked a direct nexus with her work-related injury of August 1, 1978.’ While that may roughly paraphrase the test where the Board has made an Award, it is not the test where the Board has denied benefits. Rather it is whether the evidence of record compels a contrary conclusion that an award should have been made. The Appellant, of course, bears the risk of non-persuasion. After review of this record, the Court is of the opinion the evidence of record does not compel a contrary conclusion to that of the Board.

Upon appeal to this Court, the cause was assigned to a panel which submitted a draft opinion, designated “to be published,” which purported to reverse the Daviess Circuit Court relying upon the reasoning that:

The legislature, by enacting KRS 342.285 and 290, has carefully and succinctly stated the standard which the trial and appellate courts are to employ when reviewing the correctness of the board’s orders and awards. Neither of these sections require a worker to prove his case by overwhelming evidence that would compel a finding in his favor.

In light of the foregoing, the case was submitted to the entire court in order that its position regarding the “substantial” as opposed to the “compelling” evidence rule in compensation law be resolved. This, of course, involves the more significant issue of our adhesion to stare decisis.

On at least three occasions, this Court has attempted to thwart the “compelling evidence” principles which date back to Lee v. International Harvester Co., Ky., 373 S.W.2d 418 (1963) and Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443 (1954). This effort has been made most recently in three Court of Appeals opinions designated to be published in Burkhardt v. Paramount Foods, Inc., (Nov. 2, 1984); Francis v. Center Coal Co., (August 2, 1985) and the present appeal. Our court of last resort has reaffirmed its adherence to the rule in Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985), while reversing this Court’s views to the contrary. The fact that we stated a position in at least three cases does not necessarily make it so, which brings to mind the words of Charles Lutwidge Dodgson writing under the pseudonym of Lewis Carroll in Alice in Wonderland:

I told you thrice, what I tell you three times is true

as well as the same author speaking through Humpty Dumpty to Alice in Through the Looking Glass:

I told them once, I told them twice [THRICE] they would not listen to advice.

The doctrine of stare decisis et non quei-ta movere (to stand by precedent and not to disturb settled points) was embedded in the law prior to the admission of this Commonwealth to the Union. Of those who question its validity, we would ask, as did Attorney Harper representing Erick Boll-man during the February Term, 1807, of the Supreme Court of the United States:

Shall it be said that each individual judge may rightfully disregard the decisions of the court to which he belongs and set up his own notions, his prejudices, or his caprice, in opposition to their solemn judgment? This is not the principle of our law; this is not the tenure by which we hold our rights and liberties. Stare decisis is one of its favorite and most fundamental maxims. It is behind this wise and salutary maxim that courts and judges love to take refuge, in times and circumstances that might induce them to doubt of themselves, to dread the secret operation of their own passions and prejudices, or those external influences, against which, in the imperfection of our nature, our minds can never be sufficiently guarded. In such times and circumstances, a judge will say to himself, “I know not how far my judgment may be blinded or misled by my own feelings or the passions of others, by the circumstances of the moment, or the views and wishes of those with whom I am connected, but here is a precedent established under circumstances which exclude all possibility of improper bias. This precedent is, therefore, more to be relied on than my judgment; and to this I will adhere as the best and only means of protecting myself, my own reputation, and the safety of those who are to be affected by my decision, against the danger of those powerful, though imperceptible influences, from which the most upright and enlightened minds cannot be considered as wholly exempt.”

Mr. Harper concluded his presentation with yet another inquiry, as well as his view, namely:

Again let it be asked, is not the law to be considered as settled by these repeated decisions? Are we still, as to this most important point, afloat on the troubled ocean of opinion, of feeling, and of prejudice? If so, deplorable indeed is our condition.

Misera est servitus, ubi lex est vaga aut incerta.

This great principle, stare decisis, so fundamental in our law, and so congenial to liberty, is peculiarly important in our popular governments, where the influence of the passions is strong, the struggles for power are violent, the fluctuations of party are frequent, and the desire of suppressing opposition, or of gratifying revenge under the forms of law and by the agency of the courts, is constant and active. Ex Parte Bollman and Ex Parte Swartwout, 4 Cranch 75, 89 2 L.Ed. 554, 559 (1807).

Lest it be argued that stare decisis has no place in this jurisdiction we need go no farther than refer to Ballard County v. Kentucky County Debt Commission, 290 Ky. 770, 162 S.W.2d 771 (1942), wherein the court quoted with approval 14 AmJur.P. § 61 at 284, 285:

While, perhaps, it is more important as to far-reaching juridical principles that the court should be right than merely in harmony with previous decisions, in the light of higher civilization, later and more careful examination of authorities, wider and more thorough discussion and more mature reflection upon the policy of the law, it nevertheless is vital that there be stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should not be encouraged to seek re-examination of determined principles and to speculate on a fluctuation of the law with every change in the expounders of it. As to many matters of frequent occurrence, the establishment of some certain guide is of more significance than the precise form of the rule, and substantial justice may often be better promoted by adhering to an erroneous decision than by overthrowing a rule once established.

It lies within the memory of most of the active members of the bench and bar that, insofar as this level of the Court of Justice is concerned, the primary purposes of the intermediate appellate tribunal were to afford every litigant the right of an appeal and to correct any errors committed at the trial level. Conversely, it is not our function to establish new rules of law or enunciate changes in Kentucky jurisprudence. This view is best capsulized in SCR 1.030(8)(a) to the effect:

The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.

If we, or any one of us, disagree with an established rule of law, then we point out its fallacy but simultaneously adhere to it. In this particular case, for us to announce in the early part of 1986 anything contrary to the June, 1985, opinion in Paramount Foods, supra, is violative of our duty and function.

We have listened with some interest to the argument that Section 2 of our Constitution requires that we reach a result which would abolish the compelling evidence rule. We content ourselves with saying that we find no arbitrary power being exercised over the rights of freemen in the requirement that a workers’ compensation claimant must have adduced compelling evidence to overcome an adverse finding of the Board. We must not overlook the fact that an applicant for compensation does not have a right to it but only the privilege of asking for it by virtue of legislative enactment. Other constitutional contentions we consider to be without merit.

HAYES, C.J., and CLAYTON, COOPER, DUNN, GUDGEL, HOWARD, WHITE^* and WILHOIT, JJ., concur. HOWERTON, Judge, concurs in result only. MILLER and REYNOLDS, JJ., abstain. COMBS and McDONALD, JJ., dissent.