There are several questions that our clients almost always ask during the course of their workers’ compensation case. In order to understand the progress of your case, it is necessary to understand a little about the nature of workers’ compensation insurance and the laws that govern it.

Q: Will I be compensated for my pain and suffering?

A: No. The workers’ compensation system is a compromise. Most working adults will experience some type of work injury in their lifetime, even if only a minor one. If pain and suffering were paid to every injured worker with a valid claim, the insurance policies would be so expensive that employers couldn’t afford it. The trade off, therefore, is fewer benefits for the injured worker, in exchange for insurance that is reasonable enough in cost that the law can require employers to carry it without driving them out of business (or out of Delaware). It is also much easier for the worker to access benefits than in personal injury cases, because the laws do not require that there has been negligence on the part of the employer, as is necessary for a claim in a personal injury lawsuit. If negligence on the part of the employer were required for a worker to have a valid claim, very few workers would receive any benefits. With certain exceptions (such as willful reckless behavior), almost any work related injury may be covered, even if it occurred through the employee’s own fault! In exchange, you cannot bring a civil suit against your employer or co-workers, and there is no pain and suffering award.

Q: When will my case be settled?

A: In a personal injury case, such as a car accident, there is a single monetary settlement of an agreed upon amount. In exchange for this, you sign a Release which terminates your right to all future claims. In workers’ compensation, most claims and benefits never “settle”, because they are designed to continue as long as the injured party meets the criteria to receive them, and as long as the established claim does not expire due to inactivity (consult your attorney regarding the statutes of limitations). Some benefits, such as payment of medical expenses and Temporary Total Disability wages may be paid for some period of time, discontinued when no longer needed, and then can be re-activated if needed again in the future. The only benefits that involve a “settlement” are Permanent Impairment and Disfigurement. These are one-time, lump sum payments that compensate you for a permanent medical disability resulting from a work injury. You do not, however, sign a Release when you accept these lump sum payments. Additional sums can be awarded if your medical condition changes for the worse in the future, but otherwise, they are one-time payments. Also, sometimes a worker may be offered a Commutation of some of all of the various benefits, which means that you accept a lump sum payment now in exchange for terminating your right to receive that type of benefit in the future. This type of settlement must be carefully considered since you would have no future right to those benefits if you have difficulty with your work injury in the future. Commutations are only offered by the insurance carrier in some cases, and you should discuss carefully with your attorney whether it is a wise decision to accept one in your individual circumstances.

Q: How is a workers’ compensation hearing different from a civil court trial?

A: In the event that a disputed claim cannot be resolved without litigation, the Delaware Department of Labor’s Industrial Accident Board has its own separate workers’ compensation court. The system is intended to streamline the litigation process so that disputed claims can be resolved much more quickly than a personal lawsuit. A civil court case often takes several years to arrive at a hearing, but a petition with the Industrial Accident Board will be heard within a few months after filing (the actual wait time depends on the type of petition). Workers’ compensation hearings do not involve a judge or a jury, they are heard before a panel consisting of three members of the Industrial Accident Board. Otherwise they proceed in fairly similar, if scaled down, fashion to a civil trial. Your attorney presents your case, most likely calls on your and your witnesses to testify, and the opposing counsel for the employer/insurance carrier does the same. Additionally, panel members may ask questions of their own. Most hearings take no more than a few hours to complete. Some time afterward the panel members will issue a written Decision in which the testimony is reviewed and their decision is explained. The wait for the decision after a hearing varies depending on the current workload of the Board, and may be anywhere from 14 days to several months. In the event of an unfavorable decision, there is also an appeal process available in certain circumstances. Any monies awarded to you by the Board should be issued by the insurance carrier within 30 days after the Decision is issued, unless an appeal is filed.

Q: Who decides how much money I will receive for my benefits?

A: Unlike a judgment awarded by a jury in a personal injury trial, calculations for the actual amounts you are eligible to receive for most benefits are specifically governed by Delaware laws. For example, the State declares a minimum and maximum wage compensation rate which is updated annually, and specifies how it is calculated from your pay rate prior to your injury. You cannot receive more than this maximum amount regardless of your pre-injury income. The Permanent Impairment Benefit is also governed by a complex system of calculations which involves the severity of your disability, your wage compensation rate, and the particular body part affected (click here for more information on this calculation).

That said, you should be aware that insurance companies can, and often do, make errors in determining your benefits. Your attorney will review these calculations and ensure that the proper methods are applied to secure the maximum benefits to which you are entitled. Also, when benefits are disputed by the insurance carrier, there is often room for negotiation in resolving the issue, most commonly involving Permanent Impairment and Temporary Partial Disability Benefits. Your attorney will advise you when it may be appropriate to persist all the way to a hearing, and when it may be to your advantage to negotiate these disputed benefits.