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Watson v. Fastrack Construction Inc.6/6/2005
hat the benefits were then due to the back injury. She concludes from that, because there was the implicit agreement, Fastrack has the burden of proving that she was no longer disabled.
This conclusion is not correct. By law, an employer cannot cease payment of disability benefits until both parties agree to such termination or the Board orders termination of such payment. This statute does not require that such a petition must be filed immediately after the employee is deemed healthy enough to return to work. In addition, any agreement between Watson and Fastrack must be reduced to a memorandum signed by both parties-in-interest that is subsequently filed with and approved by the Department of Labor. Neither party has cited to any such memorandum. Therefore, the Court finds that there was no agreement as to payment of benefits for the July 30, 2003 injury . Further, the Board did not commit an error of law when it found that Watson stipulated to the termination of benefits in so far as they related to the May 19, 2003 knee injury.
The procedural consequences of all this are that: (1) there was an agreement that the knee injury had resolved and no further payments were due; (2) that the petition before the Board was Watson' s to determine benefits for the back injury; and (3) the burden shifted to her to show total disability.
B.
The second issue before the Court is whether the Board erred when it denied Watson' s petition to determine compensation due her. As the Court previously determined that the petition for termination of benefits did not include benefits for Watson' s back injury , the Court must now turn its attention to the petition to determine compensation due. As Watson filed the petition to determine compensation due, she has the burden or proving that there is a change in her situation.
This Court does not weigh the evidence or determine the credibility of a witness.
The Board is to determine the credibility of the expert witnesses and ascertain the appropriate weight to of each opinion. The Board is to make factual finding and draw conclusions. On appeal, the Court is to determine whether the Board' s decision is supported by substantial evidence is free from legal error.
After hearing the testimony presented at the hearing, the Board found that Watson was not credible. It also determined that neither expert witness was persuasive so it did not choose the testimony of one expert over that of the other. The Board is able to reject the conclusions of an expert when those conclusions are based mainly upon the subjective complaints of the patient. There is sufficient evidence to sustain the Board' s finding that Watson did not meet her burden of proving that there was a compensable injury to her on July 30, 2003, requiring total disability. The Board did not err as a matter of law in denying Watson' s petition for determination for compensation due.
Conclusion
For the reason stated herein, the decision of the Industrial Accident Board is AFFIRMED.
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