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Watson v. Fastrack Construction Inc.6/6/2005
here is no direct or indirect reference to the July 30, 2003, back injury. At a minimum, the record is to be considered in the light most favorable to Fastrack, the prevailing party before the Board, the Court will assume at this juncture that the initial hearing concerned only the petition for termination of benefits. The Court is satisfied that the record is sufficiently clear to show that: (1) Watson conceded that her knee injury no longer prevented a return to work, and (2) that Fastrack' s petition was essentially unopposed. This also means that at the second hearing in September, with the stipulation, the only matter in controversy was Watson' s petition to determine compensation.
There are several indications that Watson herself, and through counsel, conceded the issue of whether she was able to return to work after he knee injury . First, Watson stated that she was released, as to her knee condition, to go back to work by Dr. Moore in November of 2003. Second, Watson' s counsel agreed to proceed first after Fastrack proposed " (H)e' s not opposing on the knee and we' re only going forward on the back then I' ll defer to [Watson' s counsel] to put this Case in first." Third, her counsel stated he did not " want to concede to the determination petition only because from the legal hearing it wasn' t clear what the termination petition was for." Finally, her counsel stated that it was correct that he was not opposed to the petition to terminate as far as the May 19th injury.
Watson also contends that Fastrack was paying benefits for the back injury as well as for the knee injury. She draws this conclusion from the fact that she was receiving benefits after her back injury and continued to receive them after it was clear in November that the knee injury no longer prevented her from working. She asserts, therefore, that the burden remained with Fastrack to prove that there was a change in her condition or that she no longer suffered from the work-related back injury.
Watson claims two separate work-related injuries. Both parties agree that she suffered a knee injury and was entitled to receive benefits for that injury. They both agree that she has been released to return to work after surgery and rehabilitation to her knee. The two parties, however, do not agree on the second injury. Both parties acknowledge that Watson injured her back on July 30, 2003. However, while Watson claims that she was receiving benefits for two separate work-related injuries, Fastrack asserts she was receiving benefits only for the knee injury. Watson argues that she was taken out of work by her physician, Dr. Moore, and has remained out of work ever since due to the back injuries she sustained. Dr. Mack, to whom Watson was referred by Dr. Moore, has continued to keep Watson out of work. She asserts she was receiving temporary total disability benefits for both injuries and that the petition for termination of benefits was related to both the May 19th and July 30th injuries. Watson continues that there is further evidence that the compensation was for both injuries as Fastrack continued to pay the benefits after she was released and returned to work after her knee surgery. She alleges that, because Fastrack agreed that she suffered an injury to her back on July 30, 2003, and continued to pay benefits after she was able to return to work from the knee injury, the only interpretation can be that the benefits paid since the November 2003 " return to work" status were related to the back injury. Watson contends that, because Fastrack did not file its petition for termination of benefits for approximately four months after she was permitted to return to work from her knee injury, there was an implicit agreement t
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