dissenting.
I respectfully, but strongly, dissent. The majority opinion is a witty and well-written dissertation on the doctrine of stare deci-sis. Stare decisis is a well-established doctrine to which this writer subscribes wholeheartedly, where appropriate. The majority of my brethren feel that they are inexorably bound by the decision of our Supreme Court in the case of Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
The issue in this case is much larger than the question of stare decisis. It involves the very fundamental principle of separation of powers. In other words, is the judiciary’s unconstitutional exercise of legislative power legitimized by the doctrine of stare decisis?
Section 27 of the Kentucky Constitution divides our government “into three distinct departments”, and confines each to “a separate body of magistracy, to-wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." [Emphasis added].
Section 28 states that “[n]o person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others.”
Our Workmen’s Compensation Act is purely legislative. What provisions did the legislature make for appeals to the circuit court and to this Court? KRS 342.285 and KRS 342.290 are plain, clear, and unambiguous. The pertinent part of KRS 342.-285(3) states:
No new or additional evidence may be introduced in the circuit court... but the court shall otherwise hear the cause upon the record as certified by the board and shall dispose of the cause in summary manner. The court shall not substitute its judgment for that of the board as to the weight of evidence on questions of fact, its review being limited to determining whether or not:
[[Image here]]
(d) The order, decision, or award is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record[.] [Emphasis added].
The pertinent portion of KRS 342.290(1) dealing with appeals to this Court states:
The judgment of the circuit court shall be subject to appeal to the Court of Appeals. The scope of review by the Court of Appeals shall include all matters subject to review by the circuit court and also errors of law arising in the circuit court and upon appeal made reviewable by the Rules of Civil Procedure where not in conflict with this chapter. [Emphasis added].
The concluding phrase of KRS 342.290(1) makes it abundantly clear that the legislature did not ever intend to let the rules of this court thwart or interfere with the law as passed.
It took the vote of at least fifty-one members of the House of Representatives, and the vote of at least twenty senators, as well the signature of our Governor, to pass this Act in 1964. Those people in turn were elected by the citizens of this Commonwealth, and their verbal acts represent the public policy of this state. In view of *120this painstaking procedure, and Sections 26, 27 and 28 of our constitution, is it not the height of presumption to think that seven or thirteen members of our appellate judiciary could legally override or modify the wishes of our citizenry? There is no express or implied basis for the majority’s compelling evidence rule in any part of the Worker’s Compensation Act. The effect of this rule is to ignore the plain and unambiguous provisions of KRS 342.285 and KRS 342.290 in blatant violation of Sections 27 and 28 of the Kentucky Constitution. By virtue of Kentucky Constitution § 26, the rule is void.
This dissenter authored the opinions in Paramount Foods, Inc., supra, Francis, supra, and the original opinion reversing in the present appeal. I do not intend to be obstinate, or obstreperous, but as long as our constitution contains Sections 26, 27 and 28, and as long as KRS 342.285(3)(d) and KRS 342.290 remain on our statute books, I shall be compelled to continue to apply the law as written. If the legislature repeals that part of subsection (d) calling for the clearly erroneous rule and replaces it with the compelling evidence rule, I would willingly adhere to the ruling in Paramount.
The clearly erroneous rule is nothing new to our judiciary as expressed in CR 52.01 since we adopted the new rules in the early fifties. The clearly erroneous rule is a well-established principle of review in all administrative law texts as well. See 2 Am.Jur.2d Administrative Law § 661 (1962). Under the clearly erroneous rule, the court may set aside a determination of fact “... when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at § 662.
I think it is significant that the en banc court did not conclude that the trial court and the Workmen’s Compensation Board were not clearly erroneous in denying benefits. They simply held as in Paramount that the evidence did not compel a finding in favor of the claimant.
In the present case, the majority relies on the fact that the neurosurgeon considered the disk removed from appellant’s back to be a “fresh rupture of less than six weeks duration” and that she “failed to mention the 1978 incident to the orthopedic surgeon.” Appellant never contended that she ruptured her back when she hurt it on August 1, 1978. She testified that she had been in good health prior to the accident and that after the injury she experienced a great deal of pain and discomfort. Both the neurosurgeon on behalf of the appellant and Dr. Quader on behalf of the appel-lee, testified that the chain of events as related by appellant was consistent with their findings and their evaluations of impairment. Appellant testified that she “lifted a short block for a small engine for [a] walk-in customer”. She stated that she experienced difficulty from that time on which became progressively worse.
Although it is obvious that the rupture occurred a few years later, neither the fund nor the employer seriously contended that there was no causal connection between the injury of August of 1978 and the subsequent rupture. In view of the uncon-tradicted lay and medical evidence, it is my opinion that the board’s denial of benefits was clearly erroneous within the meaning of KRS 342.285(3)(d).
As stated earlier, stare decisis is an essential legal principle. However, a decision which contradicts and ignores a controlling statute is void by virtue of § 26 of the Kentucky Constitution and does not stand as a legal precedent within the doctrine of stare decisis.
For these reasons, I would reverse the judgment of the Daviess Circuit Court.
McDONALD, Judge, dissents by separate opinion.