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Watson v. Fastrack Construction Inc.6/6/2005
Dr. Moore also referred Watson to Dr. Anne Mack. Dr. Mack testified by deposition. There were references in her deposition to some of Dr. Moore' s records. Dr. Mack prescribed different medications. In addition, she would have Watson do some therepy exercises such as a treadmill, bicycle, and she administered heat on the lower part of the back. Watson stated that the medications and therapy received from Dr. Mack did not help. In addition, Dr. Mack gave Watson injections one each on the right and left sides of the mid back. The injections would help for about a week, according to Watson. Watson stated that the pain was a constant ache that sometimes burns. The pain is located in Watson' s low back, right side, left side, the spine, buttocks and down the right side of her leg. She stated that she is not able to stoop, get down on her knees, stand or sit in a position for a long time, go up or down stairs easily or do manual labor.
One of the records from Dr. Moore, to which there was a reference, stated that he found muscle spasm in Watson' s low back. During Dr. Mack' s various visits with Watson, however, she never detected a spasm. There were no objective findings of injury to Watson' s back, other than the records of Dr. Moore, but those findings were uncorroborated by Dr. Mack.
Dr. Robert Smith, to whom Fastrack had sent Watson for examinations of her knee and back, also testified by deposition. He examined Watson on two occasions, the last being July 2004. He, too, detected no back spasm(s) but found her range of motion limited (by pain). He testified that as early as November 2003 when he saw her for the first time, there was nothing which prevented Watson from returning to work. Dr. Smith admitted on cross-examination that he had not reviewed Dr. Moore' s records or Watson' s physical therapy records. He seemed to be vague on other parts of her history and dates.
Board Decision
After finding Watson had conceded her knee injury had resolved, the Board further determined that Watson had the burden to show injury and total disability. It found she has not met that burden and had presented no evidence on partial disability. In so deciding, the Board found Watson lacked credibility. The reasons were that Dr. Mack found no evidence of spasm, that no treatment improved her condition and there was no objective evidence, other than tertiary records of spasm, of objective injury. Because Watson' s credibility was suspect, Dr. Mack' s opinions, being based on Watson' s complaints, were likewise suspect.
Parties' Claims
Watson contends that the Board erred as a matter of law: (1) in its ruling that Watson conceded the termination petition; (2) in its finding that Watson did not suffer compensable injury to her back; and (3) in its finding that Watson was not entitled to compensation as it is not supported by substantial evidence.
She also asserts she never conceded that Fastrack' s petition to terminate should be granted. Even that petition related to her knee injury she argues that it was still an open issue and included her back injury, too. As such, the burden to show no back injury never shifted from Fastrack to her. The Board, therefore, erred by placing the burden of persuasion on her and in ruling she had not met it.
Fastrack counters that the Board' s decision: (1) properly found that Watson conceded the employer' s petition by acknowledging that the undisputed evidence showed she was no longer under any restrictions pertaining to the knee injury and that was the subject of its petition ; and (2) properly denied Watson' s petition for total disability benefits associated with the July 30, 2003 low back injury.
Page 1 2 3 4 5 Delaware Personal Injury Attorneys
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