COOVERT (MICHAEL SCOTT) VS. COMP LOGAN'S ROADHOUSE, INC. AND GALLAGHER BASSETT SERVICES, INC. , ET AL.
Annotate this Case
Download PDF
RENDERED: MAY 6, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001320-WC
MICHAEL SCOTT COOVERT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-63505
LOGAN’S ROADHOUSE, INC.,
AND GALLAGHER BASSETT
SERVICES, INC.; HON. JOSEPH
W. JUSTICE, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, THOMPSON, AND VANMETER, JUDGES.
VANMETER, JUDGE: Michael Scott Coovert petitions for review of an opinion
of the Workers’ Compensation Board (“Board”) affirming an order of the
Administrative Law Judge (“ALJ”) denying Coovert’s motion to reopen. For the
following reasons, we reverse and remand.
On October 28, 2004, the ALJ approved the settlement agreement between
Coovert and Logan’s Roadhouse, which provided for a lump sum payment of
$20,000 for work-related injuries Coovert sustained during the course of his
employment at Logan’s Roadhouse. The agreement did not provide for a waiver
or buyout for past or future medical expenses.
Post-settlement, Coovert underwent back surgery on December 5, 2007.
Over a year later, Logan’s Roadhouse filed a motion to reopen the case to resolve a
medical fee dispute, contesting the reasonableness, necessity and causation of
Coovert’s ongoing medical treatment. The benefit review conference (“BRC”)
order listed the contested issues as: (1) entitlement to temporary total disability
(“TTD”) benefits related to the December 5, 2007, surgery and (2) reasonableness,
necessity, and causation of narcotic medications, injections, and spinal cord
stimulator.
A formal hearing before the ALJ was held; thereafter, the parties submitted
briefs for the ALJ’s consideration. In his brief, Coovert alleged for the first time
that the insurance adjuster for Logan’s Roadhouse had lied to him about his
entitlement to TTD benefits while he was recuperating from the 2007 surgery,
which amounted to fraud. The brief filed on behalf of Logan’s Roadhouse did not
address the issue of fraud.
-2-
In an opinion and order dated September 15, 2009, the ALJ found that
Coovert’s 2007 surgery was causally related to his work-related injuries, but
denied Coovert’s request for payment of TTD benefits following the 2007 surgery,
finding:
[Coovert] has testified to certain TTD benefits that he
was entitled to following his 2007 surgery. He has also
made an argument in his brief for TTD benefits. The
ALJ has searched the record and does not find any
pleadings raising this as a matter to be decided by him
other than an issue in the BRC order.
Coovert filed a petition for reconsideration, noting that the parties listed as a
contested issue at the BRC entitlement to TTD benefits related to the December 5,
2007, surgery.
By order dated November 3, 2009, the ALJ denied Coovert’s
petition for reconsideration, noting:
Plaintiff has filed a Petition for Reconsideration of
the Opinion and Order entered September 15, 2009, and
complains that the ALJ did not take up the issue of TTD
benefits following Plaintiff’s 2007 surgery. The issues
raised by the pleadings were medical dispute filed by the
Defendant/Employer questioning the reasonableness and
necessity of certain medical treatment and proposed
treatment. The only time that the TTD issue was raised
was at the BRC, when the Plaintiff asserted that as an
issue. Defendant/Employer did not brief the issues.
It was the opinion of the ALJ that this matter
should have been raised by a motion to reopen and
request payment of TTD rather than being raised at the
BRC when proof is closed. The ALJ does not remember
everything that was discussed at the BRC, but it is the
ALJ’s recollection that Plaintiff placed the issue in the
order rather than the parties listing it as an issue. It is
unfortunate if Plaintiff was due TTD benefits following
the [2007] surgery, but this should have been raised by
pleadings.
-3-
Coovert did not appeal from this order. Rather, Coovert filed a motion to
reopen pursuant to KRS1 342.125(1)(a), which provides for the reopening of a
claim due to fraud. In his motion to reopen, Coovert stated that the Workers’
Compensation carrier had paid for his surgery in 2007, and he had received TTD
benefits from Logan’s Roadhouse following the surgery. Coovert alleged that the
insurance adjuster for Logan’s Roadhouse falsely told him he was not entitled to
TTD benefits related to the 2007 surgery and instructed him to return the TTD
check, which he claims he did. Coovert argued that he was entitled to receive TTD
benefits while recuperating from the 2007 surgery and that Logan’s Roadhouse’s
misrepresentation that he was not so entitled amounted to fraud.
In response, Logan’s Roadhouse asserted a number of defenses, including
that Coovert’s motion to reopen was barred by the doctrine of res judicata, claim
preclusion pursuant to KRS 342.270(1), and the statute of limitations pursuant to
KRS 342.125 and KRS 342.185. By order dated February 19, 2010, the ALJ
summarily denied Coovert’s motion to reopen. Coovert appealed to the Board,
which affirmed. This appeal followed.
Our 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
1
Kentucky Revised Statutes.
-4-
the ALJ’s decision to grant or deny a motion to reopen for an abuse of discretion.
Hodges v. Sager Corp., 182 S.W.3d 497, 500 (Ky. 2005). The movant on a motion
to reopen bears the burden of making “a reasonable prima facie preliminary
showing of the existence of a substantial possibility of the presence of one or more
of the prescribed conditions” set forth in KRS 342.125 so as to justify reopening
the claim. Hall v. Hospitality Res., Inc., 276 S.W.3d 775, 779-80 (Ky. 2008)
(citation omitted).
In this case, the ALJ summarily denied Coovert’s motion to reopen without
making any findings of fact or conclusions of law regarding his claim of fraud.
Such findings are essential to meaningful appellate review. White v. Great Clips,
259 S.W.3d 501, 504 (Ky.App. 2008) (citing Shields v. Pittsburgh and Midway
Coal Min. Co., 634 S.W.2d 440, 444 (Ky.App. 1982)). Further, “‘[a]s a reviewing
body, neither we nor the Board should attempt to supplant such a finding of fact.’”
Great Clips, 259 S.W.3d at 504 (quoting Finley v. DBM Technologies, 217 S.W.3d
261, 266 (Ky.App. 2007)). Because the ALJ failed to make essential findings of
fact in this case as to the merits of Coovert’s claim of fraud, we are compelled to
reverse and remand for additional findings of fact.
The opinion of the Workers’ Compensation Board is reversed with
directions that the claim be remanded by the Board to the ALJ for further
proceedings consistent with this opinion.
ALL CONCUR.
-5-
BRIEF FOR APPELLANT:
Rodger W. Lofton
Paducah, Kentucky
BRIEF FOR APPELLEE LOGAN’S
ROADHOUSE, INC. AND
GALLAGHER BASSETT SERVICES
INC.:
James G. Fogle
Bowling Green, Kentucky
-6-
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.
