Frequently Asked Questions
- What is Workers' Compensation?
- Who is covered?
- What should an employee do if injured?
- What should an employer do if an employee is injured?
- Who pays benefits?
- What if an employer refuses to provide medical services and/or temporary disability benefits?
- Can an employer take action against a worker for filing a claim?
- What is the legal procedure in filing a petition?
- What Benefits are Available Through 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 Office of Workers' Compensation for relief.
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, however, these employers may elect to provide coverage.
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.
- Immediately notify the employer in writing of the injury or occupational disease and request medical services. Failure to give notice or to accept medical services may deprive the employee of the right to compensation.
- Give promptly to the employer, directly or through a supervisor, notice of any claim for compensation for the period of disability beyond the third day after the accident. In case of fatal injuries, notice must be given by one or more dependents of the deceased or by a person on their behalf.
- In case of failure to reach an agreement with the employer in regard to compensation under the law, file application with the Office of Workers' Compensation for a hearing before the Industrial Accident Board on the matters at issue within two years of the date of accidental injury or one year of knowledge of the diagnosis of an occupational disease or an ionizing radiation injury. All forms can be obtained from the Office of Workers' Compensation.
- Provide all necessary medical, surgical and hospital treatment from the date of the accident.
- Employers shall keep a record of all injuries received by employees and file a report (First Report of Occupational Injury or Disease) within 10 days in writing to the Office of Workers' Compensation and their insurance carrier.
- Ascertain the average weekly wages of the employee and provide compensation in accordance with the provisions of the law, for disability beyond the third day after the accident. All agreements for compensation must be submitted to the Office of Workers' Compensation for approval.
Benefits are paid by the employer or the employer's workers' compensation insurance carrier. Employers are required by law to file a First Report of Occupational Injury or Disease Form within 10 days after knowledge of a work related injury to the Office of Workers' Compensation and their workers' compensation insurance carrier. A first 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. Note: the report is not an admission of liability and can not be used as evidence in a contested claim.
If the employer denies the claim, the employee has two years from the date of accident to file a petition for compensation due with the Office of Workers' Compensation. An employee may file a petition with or without an attorney. There is no fee for filing a petition. The decision on whether an employee should have an attorney is an individual one that depends on the complexity of the case. The Office of Workers' Compensation will not provide an attorney for the employee. However, a workers' compensation specialist is provided to guide a claimant through the process of filing a petition and to answer any questions about the hearing process. 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 the employers are required to be represented by attorneys.
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.
Once a petition is filed, a pretrial hearing is scheduled by the Office of Workers' Compensation. At the time of the 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 need to be supplied at this time. The employee needs to be aware that he/she will need to make arrangements for the testimony of a medical witness and/or fact witnesses prior to the hearing.
Usually there is a fee involved for medical testimony payable by the employee. Signed statements or 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.
All 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 physician. Effective 5/23/08, Delaware put in place a new and comprehensive Health Care Payment System (HCPS) for medical treatment. A list of participating health care providers and information on the whole HCPS is available at the link below.
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 to seven days, the full disability period becomes compensable and no waiting period applies. The benefit amount is 66⅔ percent of gross weekly wages received at the time of the injury, up to a maximum established annually by the secretary of labor. (see Workers' Compensation Rate Chart link)
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 ⅔ 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, feet, toes, eyes, and ears. A "nonscheduled" loss is one involving the back, heart, lungs, etc.
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.
When a job-related accident or illness results in the workers' death, benefits are payable to the dependents of the worker as defined by the law. The weekly benefit payments are based upon the number of dependents, but the maximum total benefit payable to all of the worker's dependents cannot exceed 80% of the maximum rate established by the secretary of labor.
Children who are deemed to be dependents remain so until the age of 18 years or if a full-time student until the age of 25 years. If a child is physically or mentally disabled he/she may be eligible for further benefits.
The employer or its insurance carrier is responsible to pay up to $3,500 in funeral expenses for a job-related death.