dissenting.
I concur with the result reached by Judge Combs in his dissent, but for the following reasons:
KRS 342.285(3) is uncomplicated and plainly written. It limits appellate review *121of factual issues to a determination of whether: “(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 dilemma confronting us, as an intermediate appellate court, is the language found in the latest of a series of cases, namely, Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985), which states, “[T]he evidence must be so overwhelming as to compel a finding....” Thus, it is argued that our Supreme Court has superimposed a “compelling evidence” standard of review on the “clearly erroneous” standard as required by the statute.
This judicially fabricated standard of review arose first, I believe, in the opinion of Blankenship v. Lloyd Blankenship Coal Co., Ky., 463 S.W.2d 62 (1971). In that opinion the court gave a history of KRS 342.285(3), the statute’s various changes in the legislature, and a lengthy analysis of how substantial evidence relates to the burden of proof. The case states:
Stated another way, if the whole evidence is such that the fact-finder cannot be compelled as a matter of law to find one way or the other, and in fact is unable to find one way or the other, the party with the burden of proof loses. [Emphasis added.]
Almost immediately on the heels of Blankenship is Smyzer v. B.F. Goodrich Chemical Company, Ky., 474 S.W.2d 367 (1971), with a substantial evidence standard. It states:
Although a court cannot substitute its evaluation of the weight and credibility of the evidence for that of the Workmen’s Compensation Board, nevertheless, the findings of fact of the board when it decides in favor of the claimant must be supported by substantial evidence. Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men. [Emphasis added.]
The Supreme Court, in its judicial function of interpretation of statutes, has absolute authority to tell the lower courts what statutory language means. It may interpret “clearly erroneous,” as found in KRS 342.285(3)(d), to mean “compelling evidence” or “substantial evidence” or “material evidence” or “clear and convincing evidence” or what have you, but my review does not show that the statute has been so construed.
The cases, the last of which is Paramount Foods, Inc., supra, have interpreted other cases; however, KRS 342.285(3)(d) has not been specifically construed by the Supreme Court. That leaves us in a bind.
It is noteworthy by its absence that none of the opinions cited by the majority refer to KRS 342.285(3)(d) in the body of the opinions. In fact, the majority cite Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443 (1954), which is more in keeping with the dissent. Therefore, I feel compelled to follow the law as the legislature gives it, particularly since it is so plainly written. And while the majority opinion is intimidating, I am reminded of the words of Francis Bacon, “Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.”