Claimant filed Petitions seeking 9% permanency to the foot/ankle, and disfigurement benefits for both ankle scarring and altered gait. Claimant had undergone compensable surgery on 9/6/23 to address a peroneal tendon dislocation. Upon consideration of defense expert Dr. Gelman’s testimony, the Board rejected the opinion of Claimant’s medical expert, Dr. Rodgers, and awarded 5% permanency. The Board also awarded 3 weeks of disfigurement benefits for scarring, but nothing for altered gait. There was no attorney fee award on the permanency or disfigurement given Employer’s 30-day rule offer exceeded the Board’s award on those issues.

The Board emphasized that the AMA Guidelines for rating permanency are non-binding guides only. “What is important is the evaluation and how well it reflects the degree of loss of use sustained by the claimant as reflected by the evidence.” Both medical experts agreed there were essentially no objective examination findings, only subjective range of motion loss, with different findings on such testing between the two experts. The disagreement on range of motion measurements highlighted why rating permanency based on such testing, as recommended by Dr. Rodgers, was suspect. The 6^th Edition of the Guides, as preferred by Dr. Gelman, avoids over-reliance on suspect motion measurements. Dr. Rodgers over-stated the AMA Guides grade modifiers, inconsistent with his own testimony that the actual diagnosis was mild. Claimant had excellent response to the surgical procedure. Despite his residual symptoms, he had good functional abilities. Therefore, the 5% permanency rating was more appropriate.

As to disfigurement, the Board commented that there was little testimony from claimant as to the emotional impact of the scarring. The scar was just three inches long and not in a particularly noticeable location on the body. Although Dr. Rodgers testified there was some gait alteration when he examined claimant, upon observation, the Board stated the gait alteration was subtle and therefore not ratable.

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

Taylor v. CCHS, IAB Hrg. No. 1537065 (Apr. 28, 2026).

EMPLOYMENT LAW UPDATE

Delaware Court Grants Summary Judgment to Employer Concerning Employment Related Claims

The Delaware Superior Court granted summary judgment to employer Defendants concerning various claims arising out of the September 2021 termination of Dr. Megan Joyce (“Plaintiff”).

In September 2021, Plaintiff was participating in a treatment session from which a patient complaint arose. Employer Cadia reported the incident to the Delaware Department of Health, as Cadia is a mandatory reporter. Plaintiff was placed on suspension and was ultimately terminated.

In September 2023, Plaintiff sued Cadia under various theories including wrongful termination, which the Court adjudicated as a breach of contract claim.

Employer argued that Plaintiff’s employment was “at-will” and therefore can be terminated “at any time, with or without cause.” Plaintiff argued that there needed to be reasonable cause for her termination. While Plaintiff had an employment contract with Employer, there was no provision in the contract concerning the investigation of any claims of improper conduct by the employee.

To the extent that Plaintiff received an oral promise from the employer as part of her pre-employment negotiations, such conversations are barred by the parol evidence rule and are not part of the contract.

Accordingly, the Court held that “Cadia was entitled to terminate Joyce with or without good cause” and “was not obligated to articulate a basis for her termination.”

This case is yet another example of the importance pre-employment negotiations and making sure that all rights or promises are articulated in the four-corners of the employment contract.

If you have any questions about this case or about employment contracts, please contact an attorney in our liability department.

Dr. Megan Joyce v. Cadia Healthcare-Silverside, Cadia Healthcare, LLC and Jan Mundell (Del. Super. Ct. June 18, 2026)

LITIGATION LAW UPDATE

Negligent Procurement of Insurance Claims Accrue on Date of Procurement, Not Date of Discovery

First State Crane was sued for wrongful death following a crane incident on a construction site. First State’s insurance carrier denied coverage for the wrongful death claim, relying on an exclusion in the insurance policy for injuries suffered by other contractors, subcontractors, and employees. Once coverage was denied, First State filed suit against its insurance broker, L & W Insurance, LLC, for negligent procurement of insurance, breach of contract and breach of fiduciary duty.

L&W moved for dismissal, arguing that negligence and breach of contract claims are time-barred under the three-year statute of limitations and pursuant to the Delaware Supreme Court’s decision in Kaufman v. C.L. McCabe & Sons, Inc. Under Kaufman, the date of accrual for calculating the applicable statute of limitations is the date the policy is delivered to the client, not the date that coverage was denied following an incident or claim. Plaintiff argued that the relied-upon insurance provision was ambiguous, such that it should not be charged with having knowledge of L&W’s negligence until the carrier denied the claim. However, the Court noted that limitations periods may be pplied unforgivingly and that “identifying the wrongful act and separating it from the first notice of harm is sometimes difficult.” The Court followed Kaufman and confirmed that the date the carrier delivered the allegedly defective policy starts the clock for a negligent procurement claim, regardless of when the defect may be ultimately discovered.

The Court further considered, and ultimately rejected, Plaintiff’s argument that the discovery rule should toll the statute of limitations when the injury is (a) inherently unknowable and (b) the plaintiff is blamelessly ignorant. In rejecting this argument, the Court reasoned that commercial policy exclusions are not “inherently unknowable” and that plaintiff was in position to review the policy when it was provided.

First State Crane Services, Inc. v. L & W Insurance, LLC and The Cincinnati Specialty Underwriters Insurance Company, C.A. No. K25C-08-011 NEP, June 16, 2026