DISSENTING.
I respectfully dissent. In my view, the majority opinion overstates or misapplies the ability of the Workers’ Compensation Board to review the factual findings of the Administrative Law'Judge. I acknowledge the oft-stated standard of review for the appellate- courts of a workers’ compensation decision “is to correct the [Workers’ Compensation] Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed án error in assessing the evidence so flagrant as to cause gross injustice.” E.g., Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Butler’s Fleet Serv. v. Martin, 173 S.W.3d 628, 631 (Ky.App. 2005); Wal-Mart v. Southers, 152 S.W.3d 242, 245 (Ky.App. 2004). See also Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) (if the fact-finder finds in favor of the person having the burden of proof, the burden on appeal is only to show that there was some substantial evidence to support the decision); cf. Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005) (if the ALJ finds against the party having the burden of proof, the appellant must “show that the ALJ misapplied the law or that the evidence in her favor was so overwhelming that it compelled a favorable finding”).
In this case, the factual dispute presented is whether Huff, when he 1⅝ his lighter in proximity to .the round silver object, (a) *820was aware the object was a firework or a smoke bomb of some sort and was trying to light it; or (b) did not know what it was and was investigating a potentially dangerous object by seeking to .illuminate it better with his-lighter.. The testimony considered by the ALJ and his discussion and findings are as follows: ■ ■ .
Discussion of Evidence
1. Plaintiff -James Huff is a 38-year-old resident of Fordsville, Kentucky. He began work for the [Employer] as a heavy equipment operator in 2007. On the date of injury, August 26, 2011, he was working a riverbank project at a public park. He reported to work between 6:00-7:00 a,m. It had been “headlight dark” when he arrived, and it was still dark when he started work, (depo p. 28). After attending a 10-min-,ute safety meeting with the job.site superintendent he had moved on to his assignment for the day, which was to work with Keith White in moving telephone poles that had been taken down. He still had to use the headlights on the forklift when work started. Besides being dark, it was cloudy. White was his spotter on the ground. This was still before 7:00 a.m. They were in a fenced-in, secure area.
He believes the accident happened about 15 minutes after he started work that day, right after 7:00 a.m. He was looking for dunnage boards to lay the telephone poles on when White walked up to him holding a black object that was between a tennis ball and a golf ball in size. White said he found the object next to some pallets on the ground. White asked him if he knew what the object was. White then handed the object to him. There was an indention [sic], or crevice, in the object. There were no symbols or markings on it. There was no visible fuse, or “nothing indicating that it was flammable or ex-
plosive in any way.” (p. 37). He described what happened next, at page 38:
Around the outside, looking for markings, lettering, anything. Look inside the crater, cratered-in indention spot, reach in my pocket to take out my lighter ,. to shine a light inside—to look for anything of "indication. I don’t even remember if I got close to it. I mean it exploded instantly; I mean ... it just exploded. Like I said, I doh’t remember if I even touched it or got close to it ..: as soon as I struck my lighter, it was no hesitation. ' It was an explosion.
Asked why he didn’t just discard the item, he said, “Same reason why Keith was curious on what the item was when he brought it over to me. I mean, he could have took it to the superintendent also or he could have discarded it also. But yoü don’t know what you are discarding ... we had 13 different subcontractors. If some other contractor on the job site was using that particular item. But there was no contractors on the job site using explosives.” (p. 38-39).
Asked why he took out his lighter to investigate instead of taking the item to the superintendent, he said, “There was no initial danger at the time. I mean, nothing to. say that it was dangerous.” (P. 39).
Asked if identification of the object was, essential to the pending job task, he said “No ... it was just in the way. We had to clear out for that, so, I mean, if it was a piece of paper laying there, I’d have to pick it up and take it over to the dumpster , before I could set the telephone poles down. So anything right there in that immediate area, I would have to deal with.” (p. 39).
' Asked why he 'wouldn’t have discarded the object like a piece of paper on the *821ground, he said, “Because it was brought to me. If -I’d picked it up, I probably would have. But when it was brought to me and asked what it was, I was looking more closely on what it was ... I wish he (White) would have taken [it] to Dennis, the superintendent or someone more in charge than me to start off with.” (p. 40). ' He and White were equals, in terms of job titles, but he had more seniority.
He said his memory is sketchy on certain details of the accident. He said it was possible .that White told him not ,to ignite his lighter. He said White “spun around” when he took out his lighter, (p. 44). He said White must have been concerned/ that the object would explode. This all happened instantaneously. The object exploded as soon as he struck the lighter. The explosion “tore my palm out, and my thumb was literally hanging toward my upper arm.” (p. 47). He was not interviewed by the [Employer] after the accident, but he did speak with the human resources manager, Susan Summers, which, to the ALJ, is the same thing.
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8. The [Employer] filed a meteorological table documenting that sunrise on August 26, 2011, was at 6:13 a.m. The [Employer] also filed a weather analysis report. It states that while sunrise on August 26, 2011, was at 6:13 a.m., natural light from the sun without the need for artificial lighting was available beginning at'5:46 a.m. ■ The report further states that on August 26, 2011, “the sky- was clear, no precipitation- was occurring, and the temperature was near 69F.”
9. The [Employer] took the deposition of Keith White, a construction laborer at Hall Contracting since- July of 2011. White confirmed that he, Huff and others were moving telephone poles on the morning of Huffs injury. He believes they started work between 6-6:30 a.m., and that the injury occurred about an hour-and-a-half into the work day. He said the sun had risen by the time the work, day started, and that it was,fully light outside when the injury occurred, (p. ,9). Asked on cross examination whether it was overcast, he said, “It could have been overcast. I me,an it wasn’t bright sunlight but it was daylight.” (p. 25),-
He said that company policy was to notify a foreman or supervisor when a potentially dangerous object is found on the job site. He found two objects—a Roman candle and a silver ball about the size of a tennis ball near the roadway in front of the construction trailer office. The ball looked like it had sunk in the ground from a rain a day or two before. He picked up both objects. He was familiar with Roman candles, and knew that it had already been burnt, or used so he threw it back on the ground. He “wasn’t sure” about the silver ball, and that is why he picked it up and walked over to show it to Huff. (p. 30). There was sufficient natural light to fully examine the ball.' He said it looked like it had a thin- aluminum foil coating. “It was round and it has what I call a nipple ora place where a'-wick‘would be.” (p. 13). There appeared to be a “burnt spot” there; “it could have been a firework.” (p. 14-15). He did not see a wick or fuse. There were no markings on the ball. Over- the 15 or so feet it took him to reach Huff, he noticed the nipple area that could accommodate a wick or fuse, and became concerned that it might be dangerous. He said, “I-was looking (at) it and he (Huff) took it from me and started looking at it.” (p. 15). He said he and Huff “both commented it could be a smoke bomb or a firework or some*822thing.” (p. 17). After about 45-60 seconds, he said Huff then reached as if he was going to pull out a lighter, and, “I started to back up and I told him I wouldn’t do that.” (p. 17), The reason he backed up was “I didn’t know what it was. I was afraid of what it might be and I didn’t want to get in trouble. I had no idea. I just knew that it probably wasn’t a good idea.” (p. 18). He had turned away and was about six or s'even feet from Hüff when the object exploded. He said he was “a little” concerned about his own safety when it appéared as if Huff was going to light the object. On cross, he said that he would not have initially picked up the object if he thought it was dangerous. He gave statements about the incident to his employer, two police detectives, and possibly a workers’ compensation representative.
10. The [Employer] submitted testimony from Susan Summers, the human resource manager for the [Employer]. Huff’s accident occurred on a Friday, while she was out of the office, and thus began investigation of it over the weekend. When she contacted Jewish Hospital on Saturday, Huff had been released. She spoke with Huff and.his.father later that day. Huff -told her that he had lit the .object, and that the reason he had done so was because he thought it was a smoke bomb. When she asked him why he had lit the object, “He told me he did not know. He just made a stupid decision.” (p. 9). Huff never said he had not intended to light the- object. He, did not mention that he had used a lighter to be able to better see the object in dark conditions. She said White’s deposition testimony is consistent with what he had told her on August 30. She said Huff was terminated from employment (by letter dated August 31) based on his
actions in the subject incident. Prior to this incident, Huff was a good employee.
11. The' [Employer] submitted evidence from James Martin, a police officer in Owensboro." The call for help following Huffs accident was made at 7:03 a.ni., he was dispatched to the scene at 7:04 a.m., he arrived five minutes later. He said it was a “bring [sic], sunny and clear” morning, (p. 4). He spoke with Keith White, but does not remember speaking to Huff. Based on what White told him, he prepared an incident report stating that Huff “found what he thought was a smoke bomb at the construction' site. He picked it up ... and lit it, lit the short fuse. The item then exploded in his hand.” The ALJ reviewed the dispatch log and other attachments to Martin’s deposition.
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Findings and Conclusions
Employees injured while participating in “horseplay” are not entitled to compensation if the injury was independent of and disconnected from the performance of any duty of employment. Hayes Freight Lines v. Burns, 290 S.W.2d 836 (Ky. 1956); • This rule has developed from the “positional risk” theory—that the employer will only be liable for injuries for which the employment placed the employee in a position of risk to sustain. “Horseplay” is disconnected from such a risk and therefore does not arise out of and in the course of employment. Id. The Hayes Freight Lines case involved an employee who lost an eye when a firecracker exploded after a co-worker placed it at the end of the employee’s cigarette. The injured worker did not jerk the cigarette away or tell the co-worker not to the light the firecracker. The Court held that the worker therefore assisted in lighting the fire*823cracker, and his horseplay disallowed compensation.
In reviewing the evidence in this claim, the ALJ was mindful of Huffs testimony that he emphasized at' the Hearing—that he had not engaged in horseplay because he did not light the object; rather, he ignited his lighter to better examine the object and it exploded instantaneously. This theory was reinforced in [Huffs] Brief, where he argued that his “improper intent,” a requisite in the case law, had not been demonstrated. Haines v. Bellsouth Telecommunications, Inc., 133 S.W.3d 497 (Ky. 2004) [sic4]. But upon careful review of the evidence, the ALJ finds insufficient support for that position; Huff has not sustained his burden of proving the work relatedness of his injury. '
The ALJ found Huff to have given unreliable testimony as to the extent of daylight and the nature of the weather on the morning of his accident. The [Employer’s] evidence as to the weather that day and the testimony from Keith White confirmed that there was plenty of daylight as of 7:00 a.m., the earliest suggested time from the evidence for when the accident occurred. There was no need for ⅛ lighter to better illuminate the object/ Even if there had been inadequate light, there was recognition between the two men, according to White, that the object had an indention [sic] that might accommodate a fuse; that it might be a firework or smoke bomb; and that it might be dangerous—circumstances that create an act of horseplay in the very act of igniting the lighter. White said to Huff, “Bill, I wouldn’t do that,” when Huff appeared to be reaching for a lighter, and backed away but of concern for his own safety; Huff acknowledged that he heard and observed this from White and proceeded to ignite the lighter anyway. White said he and Huff were waiting for the' supervisor to return to their work area after a cell phone call to give instruction on where to move the telephone poles, so there was no reason not to leave the object alone until the supervisor returned, (p. 31-32). Huff ventured outside the course and scope of his employment in igniting the lighter, which therefore renders the resulting injury not compensa-ble. ■ • : ■
The ALJ also relied on the testimony from Summers, who spoke to Huff the day after the accident. Huff told her it was a “stupid decision” to light what was believed to be a smoke bomb; and he made no remark to her about not having intended to light the object, or about alleged darkness being the reason' he used the lighter to better see what he was holding. The ALJ believes that Huff acknowledged the nature of his actions to Summers because her company would not have otherwise abruptly terminated a good employee.
That long narrative is necessary because it demonstrates that the ALJ considered the testimony of Huff, the coworker White, the employer’s human resources administrator Summers, and police officer Martin and made the factual finding that Huffs testimony was not credible. The ALJ found that Huff was aware the object was a firework or smoke bomb and that he was trying to light it. In other words, the ALJ made a factual finding that Huff was lighting a firework on company time—a stupid decision, as acknowledged by Huff. While the Board or we might weigh the 'testimony differently or come to a different conclusion, the ALJ is the fact-finder.
*824“When one of two reasonable inferences may be drawn-from the evidence, the finders of fact may choose.” Jackson v. Gen. Refractories Co., 581 S.W.2d 10, 11 (Ky. 1979). Furthermore, KRS' 342,285(2) explicitly provides that “[t]he board shall not substitute its judgment for that of the [ALJ] as to the weight of the evidence on questions of fact.” In Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456 (Ky. 2012), the Kentucky Supreme Court addressed the authority of the ALJ and subsequently the Board’s and the courts’ standard of review:
KRS 342.285 designates the ALJ as the finder of fact in workers’ compensation cases. It permits, an appeal to the Board but provides that the ALJ’s decision is “conclusive and binding as to all questions of fact” and, together with KRS 342.290, prohibits the Board or a reviewing court' from substituting. its judgment for the ALJ’s: “as to the weight of evidence on questions of fact.” Thus, KRS 342.285 gives the ALJ the sole discretion to determine the quality, character, and substance of evidence. As fact-finder, an ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof.
366 S.W.3d at 461 (citations omitted). Evidence that would have supported but not compelled a different decision is an inadequate basis for reversal on appeal. Id. (citing McCloud v. Bethr-Elkhom Corp., 514 S.W.2d 46 (Ky. 1974)).
If the ALJ finds against the party having the burden of proof, on appeal the appellant must “show that the ALJ misapplied the law or that the evidence in [his] favor was so overwhelming that it compelled a favorable finding.” Gray, 173 S.W.3d at 241. Huff had the burden of showing work-related injury, and the ALJ found against Huff s. version of the events leading up to the explosion which resulted in the injury. From that finding flows the legal conclusion that Huff was engaged in horseplay, ie., “an action independent of and not connected with work.” Hayes Freight Lines, Inc. v. Bums, 290 S.W.2d 836 (Ky.1956). By contrast, the Board appears to have adopted a definition of “horseplay” as encompassing whimsical play, a definition that has not been adopted by Kentucky’s courts. In Hayes, Kentucky’s highest court addressed the concept of horseplay, as follows:
It is unquestioned that [employee] was injured, at his working, place during working hours, and, therefore, in the course of his, employment. The real question is whether the injury was sustained ‘by an accident arising out of his employment. KRS 342.005. The phrase ‘arising out of involves the concept of causal relationship between the employment and injury. If the injury occurred by reason, of some cause haying no relation to the employment, it cannot be said to arise out of the employment. Louisville & Jefferson County Air Board v. Riddle, 301 Ky. 100, 190 S.W.2d 1009 [ (1945) ]; Harlan-Wallins Coal Corp. v. Stewart, Ky., 275 S.W.2d 912 [ (1955) ]; Taylor v. Taylor Tire Co., Ky., 285 S.W.2d 173 [ (1955) ].
As the basis for annulling the award, [employer] strongly argues that the injury to the [employee] is not a compensa-ble injury because it did not arise out of his employment but was caused by horseplay. It seems to be the general rule that compensation is not recoverable under workmen’s compensation acts for injuries sustained through horseplay, .done independently of and unconnected with the work of employment, for the reason that such injuries could not be said to have been brought about while performing services growing out of and *825incidental to employment. 58 Am.Jur., Workmen’s Compensation, sec. 268; 13 A.L.R. 540, Annotation. But there are certain recognized exceptions to the general rule and we shall mention two of them here because of their possible application: (1) non-participation of an injured employee in the horseplay, and (2) where horseplay was known to the employer who permitted it to continue without interference. Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524; Tyler-Couch Const. Co. v. Elmore, Ky., 264 S.W.2d 56; Schneider, Workmen’s Compensation, Vol. 6, sections 1609,1612.
Hayes Freight Lines, Inc., 290 S.W.2d at 83T-38.5
The evidence, as found by the ALJ, was that Huff, the injured employee, did participate in the horseplay, and that the horseplay wás not known to Hall Contracting, the employer. Despite the majority’s assertion regarding the beneficent purposes of the Workers’ Compensation statutes, employers are not liable for injuries sustained by employees that do not “arise[ ] out and in the course of employment.]” KRS 342.0011(1); see Wells v. Gen’l Elec. Co., 318 S.W.2d 865, 867 (Ky. 1958) (holding that “[a] liberal construction of the [Workers’ Compensation] Act does not dispense with the imperative duty of a claimant to prove his case[]”).6 I would vacate the Board’s decision and remand with direction to reinstate the ALJ’s decision.
. Haines is an opinion of the Kentucky Court of Appeals.
. It should hardly be necessary to state that we are “bound, by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.” Kentucky Rules of Supreme Court 1.030(8).
. As an aside, in Wells, the court was interpreting KRS 342.004 which provided, at that time, "[t]his chapter shall be liberally construed on questions of law, as distinguished from questions of fact, and the rule of law requiring strict construction of statutes in derogation of the common law shall not apply to this chapter.” This statute was repealed in 1980. 1980 Ky. Acts.ch. 104, § 24. Despite thisi revocation, KRS 446.080(1), currently in effect, contains virtually identical language.