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Nicole Johnson v. Community Systems, Inc., IAB Hearing No. 1351297 (May 11, 2011)

Employer filed a Petition for Review seeking to terminate Claimant's ongoing temporary total disability benefits. The parties' medical experts were in agreement that Claimant was capable of working in a full-time, light duty capacity, since approximately one week after the accident. The doctors were also in agreement that Claimant could perform the jobs identified in a Labor Market Survey prepared by Employer's vocational expert, which indicated that Claimant suffered no loss of earning capacity as a result of her work injury and work restrictions. Claimant argued, however, that she had a reasonable expectation that Employer would accommodate her work restrictions and she remained totally disabled pursuant to Hoey v. Chrysler, 1994 WL 149248 (Del. Super. Ct.).

Employer's representative testified that it has a written employment policy whereby employees' jobs are held for 26 weeks during an approved leave of absence. Following the work accident, Employer initially created a light duty position for Claimant. Claimant performed the specially created job for several weeks, before presenting a total disability note from one of her treating doctors. Several months later, Claimant indicated to Employer that she was completing physical therapy and would be released to full duty work in a few weeks. Thereafter, Employer unsuccessfully attempted to contact Claimant several times regarding returning to full duty work. Employer ultimately sent Claimant a termination letter, on three separate occasions, because she had been out of work longer than 26 weeks. All three termination letters were unclaimed by Claimant, although they were sent to the correct address.

Under the circumstances, the Board held that Employer had not "strung" Claimant along and she did not have a realistic expectation of continued employment with Employer. Therefore, it concluded that she was not a "Hoey" displaced worker. In so holding, the Board noted that Employer made its policies clear to Claimant both in writing, through an employment manual initially presented to her upon hire, and verbally. Claimant failed to contact Employer regarding returning to work after indicating to Employer that she anticipated a full duty release. Finally, the Board noted that Claimant refused to claim all three terminations letters, most likely because she knew the content of the letters based upon conversations with Employer and the general leave policy.

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