Important ruling on how often a petition to terminate total disability benefits can be filed.

The claimant filed a legal motion seeking to dismiss the employer’s termination petition as having been filed in violation of § 2347 of the Act. The Board disagreed and dismissed the motion. The Board cited the Supreme Court’s decision in Stikeleather v. Zappacosta, 293 A.2d 572 (Del. 1972), for the proposition that the original making of an award on a petition is not a “review” as that term is used in § 2347. As applied to this case, the Board reasoned that the claimant had achieved an award on the initial DCD Petition but there had been no “review” of that award. Accordingly, the § 2347 limitation on how frequently the Board may review an award was not implicated.

The Board further clarified that the prohibition contained in § 2347 refers to Board actions, not the actions of a party in filing a petition. In other words, a party filing a petition is not in and of itself a “review” as used in § 2347. The Board also addressed the issue of whether the six-month period should be measured from the date of the Board’s hearing or the date of the Board’s award. They cited a prior decision which clarified that the hearing itself is the actual “review” and, therefore, the six months must be measured between hearings. The implication of this is that the Board cannot hold a hearing to “review” an award more than twice a year, or once every six months. The Board commented that this is a reasonable time frame since, by not forcing a party to go through the time and expense of a hearing to review an award more than twice a year, they provide some breathing room for the litigants. 

^{Case Law Alerts, 1st Quarter, January 2018}

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