Across the United States, employers are required to create a healthy and reasonably safe work environment for their employees. Most employers strive to provide this environment, although some fall short. Regardless of the safety precautions taken, employees regularly suffer work-related injuries or illnesses.
In Delaware, if you suffer a work-related injury or illness, you can apply for workers’ compensation.
Basic Employee Rights During a Workers’ Comp Claim
Although reporting requirements, protections and benefits differ from state to state, in almost every state, workers have certain rights after filing a workers’ compensation claim:
- An injured or ill worker has the right to file a workers’ comp claim.
- An injured or ill worker has the right to seek medical treatment from a doctor. In Delaware, an injured or ill worker is allowed to choose their own doctor, as long as they are a certified health care provider under the Delaware Workers' Health Care Payment System (HCPS).
- If your doctor says you can return to work, you can go back to your job.
- If your illness or injury makes it impossible for you to return to work either temporarily or permanently, you can receive disability compensation.
- If your employer, their insurance company or even the workers’ compensation court denies you compensation or if you disagree with any of their decisions, you have the right to appeal.
- If you want, you can be represented by an attorney throughout the workers’ compensation process.
Who Is Eligible for Workers' Compensation in Delaware?
Every employer in the state with one or more employees must carry workers’ compensation insurance. Employers pay the total cost of this insurance. An employer may not deduct money from employees' pay or charge them to pay for workers’ compensation insurance.
Workers’ compensation insurance in Delaware covers both part-time and seasonal employees.
Who Is Not Covered?
Domestic employees (such as housekeepers) and farm laborers are not covered by workers’ compensation. Their employers, however, can choose to cover them. Independent contractors are also not covered.
Are There Any Situations Where I Would Not Qualify for Workers’ Compensation?
Yes. If you intentionally injure yourself, if your injury resulted from horseplay with coworkers or if you intentionally ignored posted safety restrictions, you may be disqualified for workers’ compensation. If you are intoxicated or under the influence of drugs when injured, you may be ineligible for workers' compensation benefits.
Also, if you are off-site during your lunch hour and you are injured, you may not be eligible.
About Retaliatory Termination
Many workers who are injured or become ill on the job hesitate to file a workers’ compensation claim. They fear they will lose their jobs if they do. Often, they will use their own health insurance for medical treatment or vacation days if they need time off.
Doctors, however, are increasingly screening for injuries suffered on the job. If they determine that you have been injured at work, they may either charge your employer's workers’ compensation carrier or refuse to treat you because they don’t deal with workers’ comp claims.
If you want to receive medical treatment, your only option may be filing a workers’ compensation claim. This brings us back to the original concern — can my employer fire me if I file a workers’ compensation claim? The answer is no. It is against the law for an employer in Delaware to fire an employee based on their filing a workers’ compensation claim. Your employer, however, can fire or terminate you for other reasons while you are on workers’ compensation such as a history of poor performance, layoffs or the closing of a division or an office.
Delaware is an “at-will” employment state. In an at-will state, an employer can fire an at-will employee with or without a reason. On the other hand, an employee may leave for any reason or for no reason. An employer may not fire an at-will employee, however, for filing a workers’ compensation claim.
The situation is different for an employee working under a contract. Your employer may not fire you for filing a workers’ compensation claim. Your contract may specify reasons your employer can use to fire you or to terminate your contract. Contracts often contain a clause that says an employer may terminate an employee if they are unable to work for a specified period.
When an injured worker has reached Maximum Medical Improvement, which is the point at which the doctor does not believe they will get any better, they may be able to return to work with temporary medical restrictions. While an employer is required to observe any medical restrictions your doctor orders, they are not required to give you your old job back. Therefore, it’s important to stay in touch with your employer throughout the workers’ compensation process to arrange a light-duty schedule so that you can return to work in a new position.
If your employer cannot find you a new position that allows you to observe these medical restrictions, they can release you. You may be eligible to receive further workers’ compensation benefits, however, such as vocational retraining.
It’s much the same for employees with permanent work restrictions. Their employer needs to observe work restrictions, but as with employees who have temporary medical restrictions, if your employer cannot find you a new position that allows you to work with these permanent restrictions, they can release you.
Even if your employer terminates you because they are unable to find a new position that allows you to work with medical restrictions, you will continue to receive workers' compensation benefits until you recover from your injury or illness.
Important Things to Follow During a Workers’ Compensation Claim
Filing a successful workers’ compensation claim is not always easy. Employers and their insurance carriers may try to deny you benefits or pay you as little as possible. If you want to file a successful claim, do the following:
1. Observe All Filing Deadlines
In Delaware, an injured worker has 90 days to notify their employer that they have been hurt. If you wait longer than these 90 days, you may be ineligible for workers’ compensation benefits. The injury must be reported to your employer or to your supervisor at work. Telling a fellow employee that you are hurt does not qualify as giving notice.
If your employer and their insurance carrier deny you workers' compensation benefits, you have two years from the date of your injury to file a workers' compensation claim.
Sometimes an employee will not be aware that they been injured or that they are ill. Once the doctor diagnoses you with an injury or with an illness, the 90-day reporting period starts. If your employer denies your workers’ compensation benefits, you have one year from the date of the diagnosis to file a claim.
It is always in your best interest to file the notification to your employer as soon as possible. Employers and their insurance carriers look for reasons to deny a workers’ compensation claim. If you wait several days or weeks to report the injury, the insurance carrier may argue that you weren’t hurt and don’t require compensation benefits.
If you are denied benefits, you should file a workers’ compensation claim as soon as possible for the same reasons.
2. Seek Immediate Medical Treatment
Seek medical treatment as soon as you are injured at work or if you believe you have contracted an illness due to your work. If you are injured at work and notify your employer but then avoid medical treatment for several days or weeks, your employer and their insurance carrier will likely deny you benefits. It will also be harder for you to argue during a workers’ compensation hearing that you were injured.
When you receive medical treatment, make sure you inform every medical professional that you see that you were injured at work.
3. Doctor’s Orders
Following your doctor’s orders about treatment and other medical matters cannot be stressed enough. Unlike many other states, Delaware allows an injured or ill employee to pick their own doctor as long as they are workers’ compensation-certified.
Following your doctor’s orders to the letter will increase your chances of receiving benefits from your employer or winning a workers’ compensation hearing. If you don’t follow your doctor’s orders, your employer and their insurance carrier may argue that you could not have been seriously hurt since you didn’t follow your doctor's proscribed treatments.
Documentation is key to a successful workers’ compensation claim.
Documentation includes medical records, emails or letters from physician’s offices, receipts for any medications or specialist’s treatments as well as receipts for transportation needed to visit a doctor for a checkup or a treatment.
Keep a journal. Each day after the injury record how you’re feeling. Use a scale of one to 10, with one being little pain and 10 being unbearable pain. Do not write that every day was 10. A workers’ compensation judge will not believe that.
Instead, document how you feel when you get up, then throughout the day. Finally, record the pain you feel late at night and how well you slept. Your pain scale may move from a three to four in the morning to an eight or nine toward the end of the day, for example.
You should also document every medical visit and every conversation that you have with your employer’s insurance carrier. Write down what was said during meetings or phone calls and who participated.
Documentation of this kind adds credibility to your argument that you suffered a work-related injury.
5. Hire an Experienced Workers' Compensation Attorney
Your employer’s workers' compensation carrier spends every day fighting the claims of injured workers. They have employees whose only job is to find a way to deny injured or ill workers benefits. It's difficult for you on your own to prove your case against this onslaught of opposition. Being in a weakened condition because of an injury doesn’t help.
It makes sense to hire an experienced workers’ compensation lawyer to help you. An attorney can help you with the documentation of your case, help you find the medical treatment that you need, talk to witnesses and negotiate on your behalf.
Benefits Available Through Worker’s Comp
Every worker injured on the job in Delaware or who has contracted an occupational illness is eligible to receive certain benefits:
Injured or ill workers in Delaware are eligible for wage-loss benefits. These benefits are calculated using 66 2/3 of the worker's average weekly wage. This average weekly wage is based on how long the employee has been working for the employer. So there are different rates for someone who has been working for less than 13 weeks, 13 to 26 weeks and more than 26 weeks.
There are both maximum and minimum amounts that an injured worker may receive in benefits. The maximum current weekly amount is $725.89, and the minimum amount is $241.96. Wage loss benefits begin on the fourth day after an injury.
Your employer or their insurance carrier pay for all reasonable medical costs for a work-related injury. Medical benefits begin on the first day of the injury.
3. Temporary Total Disability Benefits
If the injured employee is off the job for more than three days, temporary total disability benefits begin on the fourth day. If the worker is still disabled on the seventh day, they receive wage-loss benefits for the entire first week.
4. Temporary Partial Benefits
An employee who returns to their job on a part-time basis and receives less in wages than they previously earned may be eligible to receive two-thirds of the difference between what they were previously making and their current wage. Workers’ compensation provides partial disability benefits for as long as 300 weeks.
4. Permanent Impairment Benefits
When a worker suffers a work-related illness or injury that leaves them with a permanent partial disability, they may receive scheduled or nonscheduled loss benefits. A scheduled loss involves fingers, hands, arms, toes, feet, legs, ears and eyes. Nonscheduled losses involve the lungs, the heart, the back, etc.
For instance, the scheduled loss for an arm is 250 weeks. If a doctor, using American Medical Association guidelines, rates that you have lost 20% of the use of your arm, you would receive benefits equal to 50 weeks of 66 2/3% of your average weekly wage. Unscheduled losses are capped at 300 weeks.
5. Disfigurement Benefits
If a work-related accident disfigures an employee, they have one year post-accident or post-surgery to file a disfigurement petition. Disfigurement benefits depend on the severity of the scar, and benefits are capped at 150 weeks.
6. Death Benefits
If a worker dies as a result of a work-related accident, their legal dependents are eligible to receive workers’ compensation death benefits. Payment amounts depend on the number of legal dependents, but payments to all eligible dependents cannot exceed 80% of the top rate set by the state’s Secretary of Labor.
Children qualify as dependents until they reach 18 or, if they are a full-time student, until they are 25. A mentally or physically disabled child may receive additional benefits.
An employer or their insurance company will contribute as much as $3500 for a funeral for a work-related death.
How to Cover All Your Bases During the Workers' Compensation Claim
If you have suffered a work-related injury or illness, you may be entitled to receive worker' compensation benefits. To receive those benefits, however, you often must overcome opposition from your employer or their insurance carrier, who may be hesitant to pay any benefits. It can be a difficult battle on your own, especially in an injured condition.
When you work with an experienced and knowledgeable workers’ compensation attorney from the Morris James Personal Injury Group, they will help you understand your rights and guide your claim through the workers’ compensation system in Delaware. They will work hard to ensure that this process goes as smoothly as possible for you and your family.
If you are interested in speaking to one of our attorneys, contact us today to arrange a free consultation.