Has the Board Misread Gilliard‑Belfast for 25 Years?

In the August 2025 What’s Hot publication, I wrote about a decision in UPS v. Smith. Smith was injured at work on February 3, 2022, and, as a result, 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 claimant was still totally disabled, the board granted employer’s petition for review, holding that the claimant was no longer totally disabled as of December 31, 2023.

Following receipt of the board’s decision on the petition for review, the claimant filed a motion for clarification on two issues: (1) how the board determined that the claimant's disability period ended on December 31, 2023; and (2) how the employer met its burden of proof to show total disability benefits had terminated without producing a labor market survey. In response to the motion, the board issued a clarification order on September 27, 2024.

In its clarification order, the board acknowledged that, in deciding that the claimant was no longer totally disabled as of December 31, 2023, it relied more on the medical witness presented by the employer than the physician who treated the claimant. 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 Supreme Court’s decision in Gilliard-Belfast v. Wendy’s Inc., the claimant could remain totally disabled until her doctor stated otherwise.

After the employer appealed, the Superior Court affirmed the board, holding that its interpretation of Gilliard-Belfast was free from legal error. Since 2000, when the Delaware Supreme Court issued its decision in Gilliard-Belfast, the board had interpreted that decision to mean that claimants 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 decision affirming that order appear to be quite a departure from how Gilliard-Belfast has been interpreted.

UPS appealed to the Delaware Supreme Court, arguing the interpretation followed by the board for 25 years: a claimant is entitled to rely on a treating doctor’s prohibition on working until the board decides the issue of disability. The Supreme Court declined to adopt the employer’s interpretation and affirmed the Superior Court decision. This appears to mean that, as long as a treating doctor has a claimant on total disability status, an employer will no longer be able to obtain an order from the board terminating the claimant’s ongoing total disability benefits. It will be interesting to see what will result from future litigation in this area.