Doctor's orders, not medical basis, still the Workers' Comp standard in Delaware

John O'Brien Mar. 2, 2007, 3:18pm


DOVER, Del. - The Delaware Supreme Court recently held a doctor's no work order is good enough for a Workers' Compensation claimant to receive total disability benefits, even if no medical basis is shown for it.

Shirley Smith was originally denied those benefits because she could not prove a recurrence of back pain, but the Supreme Court decided Wednesday that it didn't matter.

The justices put her case up against the 2000 Gilliard-Belfast v. Wendy's, Inc., decision that states if a claimant is instructed by his or her treating physician that he or she is not to perform any work, then the claimant is deemed to be totally disabled.

"This case raises the question whether the Gilliard-Belfast rule applies if the (Industrial Accident) Board determines that the treating physician had no medical basis for the no work order," Justice Carolyn Berger wrote, before ultimately penning that, "The Gilliard-Belfast rule applies, regardless of the reason for the doctor's decision to enter a no work order."

Smith worked at James Thompson & Co. on Aug. 9, 2002, when she injured her lower back. The opinion says she began a conservative course of treatment, and began seeing physiatrist Ganesh Balu in Sept. 2003.

The pain lingered until the following September, when Balu gave Smith a note authorizing light-duty work. She wasn't to lift more than 10 pounds and could not be required to constantly sit, stand, walk or stoop.

Smith got a job at Unitrac in Oct. 2004, where she worked full-time and abided by the light work order. She was laid off the next month however, then went to see Balu on Jan. 5, 2005.

"As of that date, however, Balu had not modified his prior work order, which allowed Smith to perform light-duty work with restrictions," Berger wrote.

But five days later, Balu's associate, Dr. Swami Nathan, completed a form for Smith that allowed her to receive Medicaid and Food Stamps. He added a note that said she could not work for 6-12 months.

Almost a month later, Balu gave Smith a similar note.

The Industrial Accident Board and Superior Court both sided with James Thompson & Co. The Board rejected Balu's testimony and concluded that Smith had not proven a recurrence of the total disability.

The Supreme Court conceded that James Thompson & Co.'s medical evidence was more credible than Smith's, but still reversed the Board's and Superior Court's decision.

The Court added that there is no evidence that Nathan and/or Balu acted in bad faith. Nathan did not testify.

"The question then becomes whether the Gilliard-Belfast rule applies to a treating physician's good faith, no work order where the physician acknowledges that the claimant is capable of some work," Berger wrote. "We hold that it does."

Justice Henry duPont Ridgely was the lone dissenter.

"In this case, the record shows that the treating physician did not hold a medical opinion that Smith was totally disabled," he wrote. "Nor did the treating physician give any medical reason for the no work order."

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