Thought Leadership

The claimant was injured at work on February 3, 2022, and began receiving total disability benefits. After a period of treatment, including surgery, the employer filed a Petition for Review, seeking to terminate the claimant’s ongoing total disability benefits. At the April 18, 2024, hearing on that petition, the employer’s expert testified that the claimant was able to return to full-duty work as of December 1, 2023. Although the treating doctor testified that the claimant was still totally disabled, the Industrial Accident Board granted the employer’s petition, holding that, as of December 31, 2023, the claimant was no longer totally disabled. 

Following receipt of the Board’s decision on the employer’s Petition for Review, the claimant filed a Motion for Clarification, seeking clarity on two issues: (1) how the Board determined that her disability period ended on December 31, 2023; and (2) how the employer met its burden of proof to show that total disability benefits had terminated without producing a labor market survey. In response to the claimant’s motion, the Board issued a September 27, 2024, Clarification Order. 

In its Clarification Order, the Board acknowledged that, in deciding that the claimant was no longer totally disabled as of December 31, 2023, it “placed more stock in the opinion of employer’s medical witness than claimant’s treating physician on that specific issue.” Next, the Board emphasized that, as of the date of the hearing, the claimant had been instructed by her treating physician not to return to work. The Board then held that, under Delaware law, specifically the Delaware Supreme Court’s decision in Gilliard-Belfast v. Wendy’s Inc., the claimant could remain totally disabled until her doctor stated otherwise. 

The employer appealed. The Delaware Superior Court affirmed the Industrial Accident Board, holding that its interpretation of Gilliard-Belfast in its Clarification Order was free from legal error. 

Since the Delaware Supreme Court issued its decision in Gilliard-Belfast in 2000, the Board has interpreted that case to mean that a claimant could rely on their treating doctor’s total disability order until the Board heard and determined the matter. The Clarification Order by the Board and the Superior Court’s decision affirming that Order are quite a departure from how Gilliard-Belfast has been interpreted to date. The employer has appealed the instant decision to the Delaware Supreme Court, so we should have clarification as to which interpretation is correct in the not-too-distant future. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 8, August 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}