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Delhaize America4/29/2005
nding surgery. The medical experts for the employer and employee both agreed that the employee's surgery was reasonable and necessary. However, the employer's medical expert believed the employee was capable of sedentary duties while awaiting surgery. The Board agreed with the employer's medical expert and denied the employee compensation while she was waiting for her surgery. The Supreme Court held that the Board's decision to deny compensation to the employee for total disability while she waited for her surgery was "contrary to well-established Delaware law." The Supreme Court went on to state that, "a person who can only resume some form of employment by disobeying the orders of his or her treating physician is totally disabled, at least temporarily, regardless of his or her capabilities."
However, the Supreme Court's holding in Gilliard-Belfast cannot be divorced from the facts of that case and it certainly does not stand for the proposition that an employee is totally disabled merely because he is waiting for a surgical evaluation. The medical experts in King's case disagreed about whether King needed spinal fusion surgery. Indeed, Dr. Balu did not even know if King needed surgery at all when he placed her on "no work" status. He testified that he only put King on "no work" status so that she could have a surgical consultation with Dr. Kalamachi. Dr. Balu testified that King could do sedentary work. Dr. Townsend also testified that King could do sedentary work. The fact that both Dr. Balu and Dr. Townsend agreed that King could do sedentary work as of May 14, 2003, in conjunction with the fact that no doctor was of the opinion that as of May 14, 2003 King needed surgery, requires a finding that she was not totally disabled as of May 14, 2003. The Board's reliance on Gilliard-Belfast is misplaced. Therefore, I reverse the Board's decision that King was totally disabled as of May 14, 2003.
CONCLUSION
The Board's decision is affirmed in part and reversed in part for the foregoing reasons and remanded to the Board for further proceedings consistent with my decision.
IT IS SO ORDERED.
Very truly yours,
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