Claimant was placed on an open total disability Agreement following a compensable 1/8/26 work accident involving multiple left fingertip amputations. The carrier scheduled a defense medical examination for 4/14/26, to address return to work capability, which was later rescheduled to 5/12/26 to accommodate a Legal Hearing as claimant’s attorney refused to have claimant sign a pre-defense medical examination form confirming he knew that tape recording the examination was not permitted. As a result of that Legal Hearing, the claimant was compelled to appear for the rescheduled defense medical examination and sign the doctor’s pre-examination form confirming he was aware of the policy prohibiting recording.

Claimant then failed to appear at the rescheduled defense medical examination. Claimant’s attorney admitted that the reason claimant failed to appear was because his office had not notified the claimant of the examination. Claimant’s attorney contended that the reason the claimant was not notified was because the claimant’s attorney was not personally notified of the examination, and therefore, there should be no fee/credit award to the carrier.

The Board rejected this argument and issued an order compelling claimant attorney to reimburse the carrier the full $2,250.00 no show fee, noting that appropriate written notice of the rescheduled examination was provided to claimant attorney, and the transcript of the first Legal Hearing specifically documented that claimant attorney was directly asked about the new Legal Hearing date by one of the Board members.

Should you have any questions regarding this Decision, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department.

Houdyshell v. Mountaire Farms Inc., IAB Hrg. No. 1566324 (June 24, 2026).

EMPLOYMENT LAW UPDATE

District Court Dismisses Employment Discrimination Claim Against Wal-Mat

The United States District Court for the District of Delaware granted Employer Wal-Mart’s Motion for Summary Judgment of an employment discrimination claim brought by a former employee.

Employee sustained a work-related physical injury and was placed on light duty. He then missed four days of work (not all consecutive) in violation of employer’s time and attendance policy. Prior to his work injury, he had accrued two violations for unauthorized absences. Following his absences, employee requested a leave of absence request that was ultimately denied. During the pendency of the leave request, employee was medically re-evaluated and offered light duty. Employee was re-evaluated again and was placed on sedentary duty and employer offered him sedentary duty.

Shortly thereafter, employee called out of work, which was his seventh occurrence, and employer terminated his employment for “exceeding the permitted number of absences under the Attendance Policy.”

Employee ultimately sued the employee for wrongful termination and retaliation for filing a worker’s compensation claim. Employee was not able to articulate a prima facie case on either

The Court held that employee did not meet his burden of proof for the employment discrimination claim because employee “could not perform the essential functions of his Orderfiller [sic] position, with or without a reasonable accommodation, at the time of his termination.” Additionally, the Court held that employee’s termination under the attendance policy was such that he was not “treated differently than any other similarly situated individuals.”

Moreover, the Court held that employee “failed to demonstrate a causal connection between his claim for workers’ compensation benefits and his termination.”

If you have any questions concerning the defense of employment discrimination claims, please contact an attorney in our liability department.

Cameron J. Willams v. Walmart, Inc. and Sam’s West Inc. d/b/a Sam’s Club; C. A. No.: 23-1414-MN-SRF (D. Del. July 27, 2026)

LITIGATION LAW UPDATE

90-Day Tolling Does Not Apply to Ordinary Negligence Claims

Plaintiff, as representative of the Estate of Felicia Trammel, filed suit against defendants claiming that the doctor’s treatment of Ms. Trammel resulted in death. The first two counts are for medical negligence. However, TidalHealth has moved for dismissal of Count III, negligent hiring and supervision of the doctor, claiming that Count III is barred by the statute of limitations. The question for review is whether plaintiffs’ timely sending of a Notice of Intent pursuant to 18 Del. C. § 6856(4), which tolls the statute of limitations for medical negligence claims for an additional 90 days, similarly tolls the status of limitations for the ordinary negligence claim against TidalHealth.

The Court reviewed §6856, which states that any claim “against a health-care provider for personal injury . . . arising out of medical negligence” must be brought within two years. However, because such claims must be accompanied by an affidavit of merit, signed by an expert, and so as to help prevent frivolous claims, the statute also provides for a 90-day tolling period, provided plaintiff sends the potential defendants a Notice of Intent to Investigate. The General Assembly reasoned that the additional 90-day period would allow an opportunity to assess the validity of a claim before suit is filed.

By contrast, an affidavit of merit is not required for other ordinary negligence claims against healthcare providers, including for negligent administration. Because there is no requirement to include additional support verifying the validity of an ordinary negligence claim, there is no need for an additional 90 days to file such a claim. In short, because Count III is not for medical negligence, the standard two-year statute of limitations for ordinary negligence claims applies. Count III for ordinary negligence was therefore dismissed as having been untimely field.

Trammel, et al. v. Malene Ingram, M.D. and Tidalhealth Nanticoke, Inc. C.A. No. N26C-01-330 KMM, July 14, 2026