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State of Delaware v. Dawn Sturgeon, Del. Super., C.A. No. N10A-09-016, Slights, J. (June 9, 2011), 2011 WL 2416306

Employer filed a Petition to Terminate Claimant's ongoing total disability benefits which she had been receiving since September 2008, due to a recurrence of her initial 2005 low back injury. Employer presented testimony from its defense medical expert, Dr. Samuel Matz, indicating that Claimant was capable of returning to work with sedentary restrictions, so long as she could take breaks while working. Employer also presented a Labor Market Survey and vocational testimony identifying potential jobs available to Claimant within the restrictions recommended by Dr. Matz. Claimant testified that she did not believe she could work due to ongoing pain and side effects to her pain medications. Claimant did not present any expert medical testimony.

The Industrial Accident Board denied Employer's Petition to Terminate, holding that Employer had not demonstrated a change in Claimant's condition or circumstances, since the September 2008 recurrence of total disability, that allowed her to return to work in some capacity. Employer appealed the IAB Decision to Superior Court arguing that the Board committed legal error when it applied the "change of condition" standard set forth in 19 Del. C. §2347, regarding modifications of a prior award. Employer argued that the appropriate standard when considering a cessation of disability benefits, pursuant to Brokenbaugh v. Chrysler Corp., 460 A.2d 551 (Del. Super. 1983), is whether the claimant is no longer entitled to receive the compensation at issue. The Superior Court agreed with Employer, holding that when an employer petitions for a termination or cessation of benefits, evidence must be presented to demonstrate that the claimant is medically able to return to work and employment is available within his or her restrictions. In the instant case, the Superior Court held that the Board impermissibly required Employer to show a "change in condition" rather than to demonstrate that Claimant was no longer entitled to receive compensation. Accordingly, the decision was reversed and remanded.

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