Defeating a Hoey Defense in Delaware Termination Petition Litigation

Posted by on 09.18.2017 in Featured, Uncategorized

The Hoey defense is applicable when an employer seeks to terminate the benefits of an employee that remains employed by the time of injury employer at the time the Termination Petition is litigated. If successful in establishing a Hoey defense, the employee can continue receiving total disability benefits despite being physically able to work and having earning power pursuant to a labor market survey.

Hoey and its progeny stemmed from a situation in which an employee, Ms. Hoey, was repeatedly told by the employer that there were attempts being made to find her light duty, and that a modified duty position would soon be available. The employer then attempted to terminate her wage loss benefits based upon her earning power identified in a labor market survey. However, the Court found that as she remained employed and was induced by the employer into having a reasonable expectation of continued employment, she was not obligated to look for work in the labor market. Therefore, she remained on temporary total disability (TDT).

The current trend among employees’ attorneys and certain panels of the Industrial Accident Board (Board) is to assert that Hoey applies to anyone who remains employed. In short, they are attempting to shape the defense to apply to a considerably broader range of employees by ignoring the Court’s language requiring “a reasonable expectation of continued employment.” This would be extremely problematic in that many long term or union employees remain “employed” almost indefinitely despite an extended absence from work.

How do we combat this defense in litigation? Recent favorable decisions we have received from the Board suggest that the crucial factor is presenting an employer fact witness to establish that the employee could not reasonably expect continued employment. For example, the employer does not have light duty. The important point though is that the employee must have been aware that there was no light duty, rather than there simply being no light duty available. Therefore, any and all efforts made to notify the employee of the lack of modified duty must be highlighted.

Finally, opening and closing arguments to the Board must stress that a broad application of the Hoey defense is contrary to public policy. Specifically, if an active employee’s benefits cannot be terminated, then employers are encouraged, and in fact would be forced to terminate employees or face indefinite TTD payments. While complex, the Hoey defense can be defeated with the right approach and evidence.

For more information please contact Geoffrey Lockyer at 215.972.7915 or 


Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.

This post by Weber Gallagher