WHAT IS WORKERS’ COMPENSATION?

Workers’ Compensation is a system created by the Delaware Legislature, which provides benefits to workers who are injured or who contract an occupational disease while working.  The benefits include medical care, temporary disability payments and compensation for a resulting permanent impairment.  In the event of the death of an injured worker, benefits are payable to the family of the worker.  Benefits may be paid voluntarily or it may be necessary to petition the Industrial Accident Board for relief.

WHO IS COVERED?

Employers with one or more employees are required to carry workers’ compensation insurance.  Employers may not charge an employee any portion of the premium or expense of carrying workers’ compensation insurance.  Farm workers are exempt from the workers’ compensation statute.

Workers’ Compensation benefits have certain entitlement requirements which must be met in order to receive benefits.  The requirements are established by law in Title 19, Delaware Code and are administered by the Delaware Department of Labor, Division of Industrial Affairs, Office of Workers’ Compensation.  Workers considered to be independent contractors, rather than employees, are not covered.  Seamen, maritime workers, railroad workers and federal employees are covered under federal workers’ compensation law.

WHAT MUST A WORKER DO IF INJURED?

The worker should notify the employer of the accident as soon as possible.  If an employer is not made aware of an accident within 90 days, a worker will not be eligible for compensation until notice is given.  The notice may be given to the foreman, personnel office, or anyone in authority at the employer’s place of business.

WHO PAYS BENEFITS?

Benefits are paid by the employer or the employer’s workers’ compensation insurance carrier.  Employers are required by law to report an accident to the appropriate authority within 10 days after knowledge of the injury.  A report is required no matter how minor the injury.  An employer may be fined $100 to $250 for failure to file a first report of injury.

WHAT IF AN EMPLOYER REFUSES TO PROVIDE MEDICAL SERVICES AND/OR TEMPORARY DISABILITY BENEFITS?

If the employer denies the claim, the employee has two years from the date of the accident to file a petition for compensation due with the Office of Workers’ Compensation.  If the case goes to a hearing, the employee must arrange for the presence of a medical witness or the scheduling of a deposition prior to the hearing date.  Employees should be aware that employers are represented by attorneys.

WHAT IS THE LEGAL PROCEDURE IN FILING A PETITION?

Once a petition is filed, a pretrial hearing is scheduled by the Office of Workers’ Compensation.  At the time of pretrial, a pretrial memorandum is completed.  The employee lists all benefits that he/she is seeking and any witnesses needed for the hearing.  If the employee needs subpoenas issued to the witnesses, a list of the addresses needs to be supplied at this time.  The employee needs to be aware that he/she will need to make arrangements for the presence of a medical witness or the scheduling of a deposition prior to the hearing.

Usually there is a fee involved for medical testimony, payable to the employee.  Signed statements of medical records generally cannot be used as evidence.

If the employee is represented by an attorney, the attorney fills out the pretrial memorandum on the employee’s behalf.  A hearing date is then assigned.  The case may be heard by the Industrial Accident Board or by a Hearing Officer.  Hearings are held every day in the Wilmington and Milford Offices.

Petitions for wage replacement and petitions to terminate benefits are scheduled within 120 days from the date of the notice of pretrial.  The hearing is held in the office closest to the place where the injury occurred.  Although the hearing is not as formal as Superior Court, it is a formal proceeding.  The burden of proof falls on the party who filed the petition.

CAN AN EMPLOYER TAKE ACTION AGAINST A WORKER FOR FILING A CLAIM?

We are often asked: can I be fired if I make workers compensation claim? Delaware is very clear on this point: it is illegal for an employer to fire someone for this reason.

This Q and A appears on the Delaware DEPT OF LABOR WEBSITE

CAN AN EMPLOYER TAKE ACTION AGAINST A WORKER FOR FILING A CLAIM?

The workers' compensation statute prohibits the employer from firing or in any other manner discriminating against an employee because the employee has claimed or attempted to claim workers' compensation benefits, or because he/she has testified, or is about to testify in a workers' compensation case.”

If you feel you have been the victim of an unfair firing, please let us know right away so we can protect your legal rights.

Your 1st consultation is always free.

DO I HAVE THE RIGHT TO GO TO A DOCTOR OF MY CHOICE?

Yes. You have the right to treat with any physician, surgeon, dentist or other medical provider of your choice.

CAN MY EMPLOYER SEND ME TO THE “COMPANY” DOCTOR?

Yes. Your employer can require that you have an examination performed by their doctor in order to substantiate your claim.

DO I HAVE TO PAY TAXES ON MY WORKERS’ COMPENSATION BENEFITS?

No. Workers’ Compensation benefits are not taxable; however, child support payments can be withheld.

CAN MY EMPLOYER WITHHOLD MONEY FROM MY PAYCHECK FOR WORKERS’ COMPENSATION INSURANCE?

No. Your employer is responsible for workers’ compensation insurance coverage.

IF I WORK PART-TIME, AM I ENTITLED TO BENEFITS IF I AM INJURED?

Yes. Both full and part-time employees are covered under workers’ compensation.

WHAT ARE YOUR LEGAL FEES?

Most cases are handled on a contingent fee basis which means there is no fee unless we collect for you.

WORKERS' COMPENSATION BENEFITS

MEDICAL BENEFITS

All reasonable necessary medical treatment and hospitalization services are provided by the employer or the employer’s insurance carrier.  The employee has the right to choose the treating physicians.

TEMPORARY TOTAL DISABILITY BENEFITS

If there is lost time which extends beyond three days due to the injury, temporary total disability benefits become payable starting with the fourth day lost.  If, however, the disability extends beyond seven (7) days, the full disability period becomes compensable and no waiting period applies.  The benefit amount is 66 2/3 percent of gross weekly wages received at the time of the injury, up to a maximum established annually by the Secretary of Labor.

TEMPORARY PARTIAL BENEFITS

If the employee goes back to work part-time or at a lower rate than his/her pre-injury wage, the employee may be entitled to 2/3 of the difference between the pre-injury wage and his/her current wage.  Partial disability may be received up to 300 weeks.

PERMANENT IMPAIRMENT BENEFITS

When a job related injury or illness results in a permanent partial disability, benefits are based upon a percentage of certain “scheduled” or “nonscheduled” losses.  A “scheduled” loss is one involving arms, hands, fingers, legs, toes, eyes and ears.  A “nonscheduled” loss is one involving the back, heart, lungs, etc.

DISFIGUREMENT BENEFITS

An employee may file a petition for disfigurement one year post accident/surgery for any scar, burn, or amputation related to the work accident.  Disfigurement is paid out in a number of weeks up to 150 weeks depending on the severity of the scar.

MILEAGE

The injured claimant is entitled to get mileage back and forth for doctor and therapy visits.

Office Locations

We have six offices to serve you.  There is no charge for the initial consultation.  If you have questions about workers’ compensation, please call the office in your area today.

The information on this website is offered for general informational or educational purposes and does not constitute legal advice. It is our intention to keep the materials current but there is no guarantee they are up to date. Do not act or rely upon the information without seeking the advice of an attorney. Contact through this website does not create and attorney-client relationship. Our firm practices and is licensed in the following states: DE and PA.