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Martin v. Delaware Home & Hospital, No. 232, 2013 (Del. Supr.) (ORDER).

The Supreme Court affirmed two Superior Court decisions regarding Claimant’s discovery violation and eligibility for total disability benefits.

Claimant was sustained a compensable knee injury that necessitated a surgery in 2008. Claimant was released to return to work, with restrictions, during 2008. Claimant did not return to the workforce. In 2011, Claimant required a second surgery. Employer agreed that the surgery was compensable; however, contended that Claimant was ineligible for total disability benefits because she had not been employed prior to the 2011 surgery and therefore had no wage loss associated with the surgery.

During the discovery phase of the litigation, Employer issued requests for production to Claimant’s counsel asking for documentation of any job search that Claimant alleged she completed. No such information was produced. At the hearing, Claimant testified (over Employer’s objection) about her job search activities. The Board found that Claimant had not voluntarily removed herself from the workforce and therefore was entitled to total disability benefits. On appeal to the Superior Court, that Court concluded that the Board erred in allowing Claimant to testify regarding her job search, when that information was not disclosed prior to the hearing (and pursuant to Employer’s requests for production).

On remand, the Board precluded Claimant from testifying regarding her job search efforts because she had, once again, failed to produce any documentation of the same (Claimant did produce a handwritten note of employers she allegedly contacted 48 hours prior to the hearing – the Board found this late production unacceptable). The Board conclcuded that the Claimant could, therefore, not demonstrate that she intended to remain in the labor market prior to the 2011 surgery. Consequently Claimant was not awarded total disability benefits. The Superior Court affirmed the Board’s decision on remand.

The Supreme Court affirmed both Superior Court decisions.


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