Appellant's Opening Br. ("Opening Br.") at 7.Id. at 8; Brokenbrough v. Chrysler Corp., 460 A.2d 551 (Del. Super. 1983). Appellee's Resp. ("Resp.") at 6 ("The appropriate standard of review that the Industrial Accident Board or its Hearing Officer shall apply when considering a petition for termination of total disability benefits is whether the claimant remains totally disabled. . . .[T]he employer must first show that the claimant is . . . "medically employable.").
Castillo v. Brandywine Suites Hotel, IAB Hearing No. 1279137, at 10. See Brokenbrough v. Chrysler Corp., 460 A.2d 551, 553 (Del. Super. 1983) ("In petitions alleging cessation of disability, the `change of condition' standard is not an appropriate burden."). The Board, however, used the correct standard: whether or not Castillo is totally incapacitated for work purposes.
Jones v. Worthy Brothers, Inc., Del. Super., C.A. No. 89A-AP-4, Taylor, J.(Feb. 1, 1990) (ORDER).See, Bailey v. State, 2004 WL 745716 (Del.Super.Ct.), citing, Brokenbrough v. Chrysler Corporation, 460 A.2d 551, 553 (Del.Super. 1983). 8. Here there was substantial evidence for the Board to decide that Ms. Zaremba's benefits should be decreased.
Any claim of increase or decrease in the disability must be supported by comparison proof. Under Delaware law, a worker can be totally disabled economically, although only partially disabled physically. It is this total economic disability that is used in the displaced worker analysis.Brokenbrough v. Chrysler Corp., 460 A.2d 551, 552 (Del.Super.Ct. 1983).Id.
IAB Hearing at 78.Brokenbough v. Chrysler Corporation, 460 A.2d 551, 552-53 (Del.Super. 1983).Id. at 553.
That leaves only the fourth basis, namely recurrence, but there was no change in his condition when or after the agreement terminated. See Brokenbrough v. Chrysler Corp., 460 A.2d 551, 552-53 (Del.Super.Ct. 1983). There are two cases which have dealt with similar circumstances.
Del.Super., 460 A.2d 551 (1983).Id. at 553.
The employer's burden is to prove that the employee is no longer entitled to receive compensation.Brokenbrough v. Chrysler Corp., Del. Super., 460 A.2d 551 553 (1983). 7. Appellant argues that in light of the Board's statement, and because the Board's position changed after the second hearing despite Dr. Fink's almost identical testimony in both hearings, the only logical conclusion is that the Board improperly relied upon its own experience, thereby violating Turbitt v. Blue Hen Lines, Inc. The Court finds no merit in Appellant's argument.