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Watson v. Fastrack Construction Inc.6/6/2005
Standard of Review
This Court' s scope of review of the Board' s decision is limited to whether the decision is supported by substantial evidence and free from legal error. Substantial evidence is such evidence as a reasonable person might accept as adequate to support a conclusion. The Court does not sit as a trier of fact, does not weigh the evidence, or determine the credibility of the witnesses. It does not make factual findings and conclusions. That is done by the Board. The Court is only to determine if the evidence is legally adequate to support the Board' s factual findings. In reviewing the evidence, the Court is to consider the record in light most favorable to the prevailing party below.
Discussion
A.
The first issue presented is whether the Board erred as a matter of law in its decisions dated September 27, 2004, and November 17, 2004, when it found that Watson stipulated to Fastrack' s petition for termination of benefits.
The Board opened the hearing by stating that there were two petitions, one a petition for review for termination of benefits while the other was a petition to determine compensation due. Fastrack stated that the parties agreed there was an injury to Watson' s low back but disagreed as to whether she required any total disability during the time specified. Watson countered that, as Dr. Morgan had taken her out of work with regard to her back, she was out of work for two separate injuries.
In both its decisions dated September 27, 2004, and November 17, 2004, the Board stated that Watson stipulated to the entry of the termination petition . It is a little unclear from the hearing transcript whether Watson actually stipulated to the termination petition. The transcript reads as follows:
Counsel for Watson: There was a Petition , the Petition for Review was filed with the Petition to Terminate an there was some confusion as to what accident or what injury was. There was a Legal Hearing held and the effect of that was basically just a continuance of that Hearing and we filed our Petition as well, so they' re kind of co-mingled, it' s really kind of difficult to do so.
*
Counsel for Fastrack: I don' t know if Mr. Bartkowski is opposing my Petition for Review, frankly.
Counsel for Watson: Well, with regard to the knee we' re not, but again it' s because it' s so, I' m not clearing her from the Board' s last Decision, what we' re here on and that' s why I don' t want to concede anything at this point in time just because I' m not sure what the final release (sic) were.
Counsel for Fastrack: Well, if where we are, where I think we are and that is that he' s not opposing on the knee and we' re only going forward on the back then I' ll defer to Mr. Bartkowski to put his case in first.
Counsel for Watson: Yeah, that' s fine, we' ll go first.
Hearing Officer: Fair Enough.
Counsel for Fastrack: Is that where we are Matt?
Counsel for Watson: Yeah, but I don' t want to concede to the Determination
Petition only because from the Legal Hearing it wasn' t clear what that Termination Petition was for.
Counsel for Fastrack: You' re not opposing the Petition as far as the May 19, 2003?
Counsel for Watson: Correct.
Thus, there was a question whether the second hearing was based upon just the petition for review for termination of benefits or whether the petition to determine compensation due was also considered. Fastrack' s petition indicates only May 19, 2003, as the date of the injury. That is the date of the knee injury. T
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