WEST IRVING DIE CAST VS. COMP RICE (LOREN), ET AL.
Annotate this Case
Download PDF
RENDERED: NOVEMBER 12, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001248-WC
WEST IRVING DIE CAST
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-95492
LOREN RICE; HON. R.
SCOTT BORDERS,
ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, MOORE, AND VANMETER, JUDGES.
VANMETER, JUDGE: West Irving Die Cast (West Irving) petitions for the
review of an opinion of the Workers’ Compensation Board (Board) affirming the
order of an Administrative Law Judge (ALJ) that dismissed West Irving’s motion
to reopen Loren Rice’s workers’ compensation claim. For the following reasons,
we affirm.
On January 3, 2004, while working for West Irving, Rice injured his back
when he attempted to tighten a bolt located above his head. Dr. Robert Adams, a
psychologist, conducted a psychological examination of Rice on December 12,
2004, and subsequently diagnosed Rice with major depression with psychotic
features as a result of the work-related injury and loss of income. Due to the
depression, Dr. Adams assigned Rice a 75% impairment rating. Additionally, Dr.
William Kelly Vincent, Rice’s treating physician, opined that Rice suffered from
depression that was causally related to the work-related injury.
In an opinion and order dated April 15, 2005, the ALJ found as a result of
the work-related injury, Rice was permanently and totally occupationally disabled
due to his back injury and psychiatric condition. In so finding, the ALJ noted:
In this instance, the Administrative Law Judge is
persuaded by the testimony of Dr. Vincent, coupled with
that of Dr. Adams, as well as the Plaintiff’s credible
testimony that his prior emotional problems had resolved
before the January 3, 2004 [work injury].
Subsequently, West Irving appealed to the Workers’ Compensation Board, which
affirmed the ALJ’s order.
On November 2, 2007, West Irving filed a motion to reopen the claim,
arguing that Rice’s physical and psychiatric conditions had substantially improved
since the date of the ALJ’s opinion. In an order dated February 15, 2008, the ALJ
denied West Irving’s motion to reopen for failure to make a prima facie showing of
-2-
a change in Rice’s disability since the time of the award. West Irving petitioned
the ALJ for reconsideration, which the ALJ denied. West Irving then appealed the
ALJ’s order to the Board, which remanded the case to the ALJ on the basis that the
evidence established a prima facie case and directed the ALJ to issue an opinion on
the merits of West Irving’s claim to reopen.
In support of its assertion that Rice’s psychiatric condition had improved,
West Irving submitted the medical reports of Dr. Andrew Cooley and Dr. David
Shraberg, who both found that Rice has no residuals from a psychiatric standpoint
as a result of the work injury. Dr. Cooley conducted an independent medical
examination of Rice on June 30, 2006, and opined that Rice was not honestly
reporting symptoms and displayed a pattern of malingering. Dr. Cooley further
opined that Rice did not have a legitimate psychiatric disorder, stressing that he
administered four different cognitive measures testing effort and validity, all of
which Rice failed. In addition, Dr. Shraberg’s examination of Rice on October 2,
2007, revealed no evidence of a psychiatric disorder related to Rice’s work injury.
He further noted that Rice’s symptoms were lifestyle induced, associated with
opiate and tobacco dependency.
West Irving also submitted the medical report of Dr. Martin Schiller to prove
Rice’s physical condition improved since 2004. Dr. Schiller performed an
independent medical evaluation on March 22, 2007, which revealed multiple
Waddell findings indicating non-structural disease and pain behavior. Dr. Schiller
opined that Rice had reached maximum medical improvement, but due to
-3-
psychiatric problems and the diagnosis of malingering, assessment of the
impairment rating was difficult. Ultimately, Dr. Schiller assigned Rice a 0%
impairment rating to the body as a whole.
Dr. Robert Weiss evaluated Rice in 2004, and again on February 5, 2009.
He reported that his diagnosis of Rice had not changed since 2004 and he still
believed Rice did not need surgery or any additional treatment to his back, and that
Rice’s injury was nothing more than a strain on his lower back. Dr. Weiss stressed
that Rice had reached maximum medical improvement from the strain.
In response, Rice submitted the medical record of Dr. Adams who conducted
a psychological evaluation of Rice on March 31, 2009. Dr. Adams concluded that
Rice’s psychological condition had not substantially changed since his prior
examination in 2004. In a letter to Rice’s counsel, Dr. Adams further stated that he
disagreed with Dr. Cooley’s report, and believed that Rice’s lack of effort was due
to his depression, not because he was malingering.
Rice also submitted the medical report of Dr. Vincent, who stated that based
on Mr. Rice’s psychological, as well as his physical condition, he was not suited
for any kind of work that was to be performed in a forty-hour work week because
of his problems with concentration and his need to lie down throughout the day.
Dr. Vincent noted that he has increased the strength and quantity of Rice’s
antidepressant, and continues to prescribe Rice chronic pain medication and
muscle relaxants for his lower back pain.
-4-
Rice acknowledged that he takes medication for treatment of depression. He
also stated that since his injury, his crying spells have increased and now occur
once or more every day. In addition, Rice testified that he avoids his family, has
feelings of hopelessness, often has physical outbursts due to anger, and has
difficulty focusing his attention. Rice testified that he still experiences severe pain
in his lower back which radiates down his right leg and has recently moved down
his left leg as well. As a result of the pain, Rice has difficulty sleeping.
West Irving argues the Board erred by not reversing the ALJ’s order that
found Rice to still be “permanently and totally occupationally disabled” because
the finding was not supported by substantial evidence in the record. More
specifically, West Irving contends the evidence compels a finding that Rice no
longer suffers from a psychiatric condition or physical condition.
The standard for appellate review of a Board decision “is limited to
correction of the ALJ when the ALJ has overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the evidence so flagrant as
to cause gross injustice.” Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866
(Ky.App. 2009) (citing W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992)). We review an award by an ALJ to determine whether its findings were
reasonable under the evidence. Special Fund v. Francis, 708 S.W.2d 641, 643
(Ky. 1986). We note that the “ALJ, as the finder of fact, and not the reviewing
court, has the sole authority to determine the quality, character, and substance of
-5-
the evidence.” Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citation
omitted).
KRS1 342.125 provides, in part:
(1) Upon motion by any party or upon an administrative
law judge’s own motion, an administrative law judge
may reopen and review any award or order on any of the
following grounds:
(d) Change of disability as shown by objective
medical evidence of worsening or improvement of
impairment due to a condition caused by the injury
since the date of the award or order.
Well-settled is the notion that “the burden [of proof] is upon the one moving for a
reopening of a compensation award[.]” W.E. Caldwell Co. v. Borders, 301 Ky.
843, 847 193 S.W.2d 453, 454 (1946) (citations omitted).
In this case, the record reveals that after Dr. Adams’ psychological
evaluation of Rice in 2009, Dr. Adams concluded that no change had occurred in
Rice’s psychiatric condition since his psychological evaluation in 2004. Dr.
Adams also disagreed with Dr. Cooley’s conclusion that Rice was malingering,
and attributed Rice’s lack of effort to an inability to focus and an apathetic view
towards his life, both of which Dr. Adams believed were signifiers of Rice’s
depression. In addition, Dr. Vincent opined that Rice’s psychiatric condition had
deteriorated since 2005, citing Rice’s sleep disturbances with severe insomnia,
along with irritability towards his family. As a result, Dr. Vincent had to increase
Rice’s depression medication.
1
Kentucky Revised Statutes.
-6-
Dr. Vincent and Rice both offered evidence to support the court’s conclusion
that the physical condition of Rice’s lower back had not changed since his original
award in 2004. Dr. Vincent continues to prescribe pain medication, and has had to
increase the potency of medications Rice requires. Rice testified his back pain has
continued and increased, recently moving down both his right and left legs. Rice is
unable to lift objects, has difficulty completing daily tasks and sleeping through the
night.
Despite the introduction of Dr. Cooley’s and Dr. Shraberg’s medical reports,
both opining that Rice was not suffering from a psychiatric disorder, and any
symptoms were related to his dependence on narcotics, the evidence presented by
Dr. Adams, Dr. Vincent, and Rice was sufficient to support the ALJ’s conclusion
that Rice’s psychiatric condition had not improved since the original workers’
compensation award in 2004. Likewise, the medical reports of Dr. Schiller and Dr.
Weiss found Rice to have reached maximum medical improvement and stressed
that Rice did not require additional treatment for his lower back. However, Dr.
Vincent and Rice provided evidence to show that Rice’s lower back condition had
either not improved or deteriorated since 2004. Such evidence was adequate to
support the ALJ’s conclusion. See Square D Co., 862 S.W.2d at 309 (the ALJ has
the sole authority to weigh the evidence). Accordingly, we decline to disturb the
ALJ’s findings.
The opinion of the Workers’ Compensation Board is affirmed.
ALL CONCUR.
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Walter E. Harding
Louisville, Kentucky
Thomas M. Rhoads
Madisonville, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
