We conclude that there is nothing in this particular subsection of the statutes that modifies the principle stated in Osborne. With this conclusion established, the case is governed by Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (1972), in which the workman suffered a permanent functional impairment of 10% to the body as a whole but was able to continue in his regular employment. As in the case here under consideration, there was no other evidence to support a finding that a future impairment of earning power was probable.
It was established that claimant's injury is permanent, but not all permanent injuries may be classified as injuries of "appreciable proportions". In Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (1972), it was held that "appreciable proportions" means substantial or of significant consequence, and an injury which resulted in a fractured wrist and in which the attending physician expressed the opinion that Davis had a permanent impairment of the right extremity but could nevertheless perform all types of manual labor was held not to be of appreciable proportions. The injury here is a change in the texture of the tissue lining the mucous membranes and nasal passages. It causes head congestion and discomfort but has not disabled claimant from working.
In the case of Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), and more recently in Couliette v. International Harvester Co., Ky., 545 S.W.2d 939 (1976), the concept of "disability" was defined as an occupational disability or loss of earning capacity, as distinguished from purely functional impairment. Under these decisions when the employee returns to his regular employment, he is not entitled to recover permanent partial benefits unless his injury is of such "appreciable proportions" as to be indicative of future impairment of earning capacity as manifested by the nature of the injury, the age of the workman, and other relevant factors. In Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (1972), the claimant suffered a fracture of his right wrist and was given a disability rating of ten percent to the body as a whole. In commenting upon the rationale of Osborne v. Johnson, supra, the court stated at page 733:
Appreciable, in this sense, means substantial or of significant consequence. Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (1972). The board is the sole fact finder in compensation proceedings and the circuit court may not substitute its opinion for that of the board on the weight of the evidence.
We think the evidence warranted the board's finding of 50-percent occupational disability. Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731, relied on by the employer, is not controlling, because there the evidence was conclusive that Davis had not sustained any loss of immediate earning capacity, and the only question was whether he had incurred an injury of appreciable proportions such as to indicate the probability of future impairment of earning capacity. On the direct appeal the judgment is reversed with directions to enter judgment upholding the order of the Workmen's Compensation Board. On the cross-appeal the judgment is affirmed.
The total circumstances revealed by the evidence convince us that the Board was not required to find that Atcher had sustained a permanent bodily injury of substantial or significant proportions. Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (1972.) The judgment is affirmed.
The injuries clearly were of "appreciable proportions" in the sense that they were of substantial proportions or of significant consequence. See Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (decided March 17, 1972); Simmons v. Island Creek Coal Company, Ky., 479 S.W.2d 888 (decided April 28, 1972). On the second point, it is correct that the burden of proof is on the claimant.
We have been liberal in upholding its findings when favorable to the claimant. See, for example, Hawkins Brothers Coal Company v. Thacker, Ky., 468 S.W.2d 256 (1971); Island Creek Coal Co. v. Williams, Ky., 469 S.W.2d 64; and Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (decided today). It must not be overlooked, however, that in this instance its finding (on the question of permanency) was against the plaintiff, who had the burden of proof and risk of nonpersuasion.