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Workers' Compensation FAQs

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1. How does workers' compensation work in Delaware?

Workers’ compensation is a state governed system of no-fault insurance that provides benefits to employees or their surviving dependents for work-related injuries, diseases, and deaths. All Delaware employers with at least 1 employee are required by the state to carry workers’ compensation insurance. The Delaware Office of Workers’ Compensation administers the workers’ compensation system in the state.

If an employee suffers a work-related injury or illness, the employee is entitled to certain statutory workers’ compensation benefits, including lost wages and medical expenses. The claim is agreed upon between the employer and employee, or the employee can file a petition with the Delaware Office of Workers’ Compensation to determine the workers’ compensation benefits to be paid by the employer.

2. How do I file a workers’ compensation claim?

You must notify your employer in writing immediately of your injury or occupational disease, and request medical attention.

The employer must then file a First Report of Injury with the Delaware Office of Workers’ Compensation within 10 days.

The employer’s insurance company will contact you or your attorney to acknowledge or deny the claim. If the claim is acknowledged, you and your employer will sign an agreement to benefits which will be filed with the Delaware Office of Workers’ Compensation.

If the claim is denied, you should file a workers’ compensation petition with the Delaware Office of Workers’ Compensation for a hearing before the Industrial Accident Board. The time limit for filing such a claim is two years for most injuries, and one year from the date that you knew your disease may have been caused by your employment for occupational disease.

3. What are the different types of workers' compensation benefits?

Medical Benefits make an employer (or its insurance company) responsible for necessary medical expenses (including treatment, medications, and mileage reimbursement) related to a work-related injury or occupational disease.

Temporary Total Disability Benefits (lost wages) are payable if the employee cannot go back to work. They are calculated at 66⅔% of gross weekly wages received at the time of the injury, up to a maximum established by the Secretary of Labor.

Temporary Partial Benefits (reduced wages) are payable if the employee returns to work part-time or at a lower wage rate. This benefit is ⅔ of the difference between the employee’s pre-injury wage and the current wage and is payable for a maximum of 300 weeks.

Permanent Impairment Benefits are payable when an employee suffers a permanent partial disability as a result of a job-related injury or illness. The amount of the benefit depends on the type and extent of the disability, categorized as scheduled or nonscheduled losses. Scheduled losses include fingers, legs, arms, hands, or eyes. Nonscheduled losses involve body parts such as lungs, kidneys, heart, or back.

Disfigurement Benefits are available for a scar, burn, amputation, or other disfigurements caused by a job-related accident. The amount of the benefit depends on the severity of the disfigurement and is calculated in a number of weeks up to a maximum of 150 weeks.

Death Benefits are weekly payments made to the dependents of a worker whose death resulted from a work-related accident or illness. Payments are calculated based upon the number of dependents up to a maximum established by the Secretary of Labor. The employer (or its insurance company) may also be responsible for up to $3,500 in funeral expenses.

4. Can I collect unemployment if I was injured at work?

In Delaware, employees who are receiving temporary total disability benefits are not eligible to collect unemployment benefits at the same time.

5. How is a workers' compensation settlement determined?

Delaware law sets out specific formulas to calculate each type of benefit in a workers’ compensation claim. However, if an employee accepts a settlement or commutation, the amount of the settlement is determined by negotiations between the employee and the employer’s insurance company. The settlement amount should reflect the value of all the future benefits of the employee’s claim, however, the employer’s insurance company will inevitably try to minimize this amount. In negotiating any workers’ compensation claim or settlement, it is advisable to have an experienced attorney on your side. Commutations are voluntary as to both parties involved.

6. How long does it take for workers' compensation to pay you?

Delaware encourages prompt payment of workers’ compensation benefits and, once a settlement is reached between the employer and the employee, the employee should receive workers’ compensation payments in the same frequency as their regular paychecks prior to the work-related injury or illness. How long it takes to reach a settlement will depend on the facts of the case and the parties involved, in particular the employer’s insurance company. Typically, the insurance company will try to dispute liability and minimize the amount and duration of benefits in order to reduce their loss.

7. Should I accept a lump sum settlement? (What does that mean? How is that different from an overtime payout?)

Workers’ compensation is typically paid on a monthly basis. In some cases, the Delaware compensation board will consider a commutation of benefits, meaning the injured employee can receive a one-time, lump-sum payment that is negotiated and agreed between the employer and employee, instead of ongoing monthly payments.

The lump-sum payment will replace the right to future benefits therefore the agreed amount must consider any future expenses and the risk of additional complications. The advantage of a lump-sum settlement is that you get all of your settlement money in hand but the risk is that you accept an amount that is insufficient to pay for future medical expenses especially if you develop complications. It is therefore advisable to consult with an experienced workers’ compensation attorney before accepting a commutation of benefits.

8. How should I inform my employer if I’m injured?

You must notify your employer of your injury in writing immediately, and request medical attention. Many employers provide an accident report form that you can use to notify them of your injury, however, it is not essential to use an employer-provided form. If you do not properly notify your employer of your injury and request medical attention, you may lose your right to compensation.

9. How much time do I have to file a workers' compensation claim?

You should notify your employer of your injury or occupational disease immediately, and no later than 90 days after a work-related injury or 6 months after becoming aware that your illness is work-related, and request medical attention. The time limit for filing a workers’ compensation petition with the Delaware Office of Workers’ Compensation is 2 years from the date of the injury for work-related accidents. For occupational disease, the time limit for filing is one year from the date you became aware that your disease may be caused by your employment.

10. What should I do first if I am injured at work?

Seek medical attention for your injuries. Your health and safety come first, and failure to accept medical services can affect your right to compensation. A Delaware healthcare provider may provide a first visit or treatment without prior authorization from the employer in a workers’ compensation situation. After that initial treatment or consultation, the healthcare provider must obtain authorization for additional treatment.

Notify your employer in writing about your injury immediately, and about any claim for compensation for a period of disability beyond the third day after the accident. Failure to properly notify your employer can affect your workers’ compensation claim.

If there were any witnesses to your work accident, see if they will provide a brief written statement of that and obtain their full names and telephone numbers.

Contact an attorney with workers’ compensation experience. The workers’ compensation process is technical, and failing to comply with specific requirements and deadlines can affect your claim.

11. What types of payments can I receive for a work injury?

An employee who cannot work at all as a result of a work-related injury or occupational disease may be entitled to temporary total disability benefits. In Delaware, temporary total disability is 66⅔% of the employee’s gross weekly wages at the time of the injury, up to a maximum set by the state. Effective July 1, 2020, the weekly maximum in Delaware is $747.66. Temporary total disability benefits begin on the 4th day of missed work after a work-related injury. However, if the employee is out of work for 7 days or more, they will also be entitled to lost wages for the first 3 days of missed work.

An employee who has a reduced income as a result of a work-related injury or occupational disease (either because they have to reduce the hours they work or change to a lower-paying job) is entitled to temporary partial benefits. This benefit is calculated as ⅔ of the difference between the employee’s pre-injury wage and their post-injury wage and is payable for a maximum of 300 weeks.

12. How will taking a light-duty job affect my workers' compensation payments?

If you are still able to work following a work-related injury but you are limited in the number of hours you can work or the type of work that you can do, you may be eligible for partial disability benefits instead of total disability benefits. You can receive a paycheck for your work and partial disability benefits to compensate you for the drop in your wages. Partial disability benefits are payable for up to 300 weeks at ⅔ of the difference between your pre-injury and post-injury wages.

13. How long can you stay on workers’ compensation?

How long you can stay on workers’ compensation differs depending on state regulations, and your injury and recovery. In general, workers’ compensation payments will terminate when you are fully recovered and able to return to work. Compensation for medical bills and for permanent partial disability may also be available and can be paid even if you are able to return to work. In general, your claim will remain open for five years from the date of each payment. If, however, 5 years elapse without any payments being made, then your workers’ compensation claim will end.

14. Why can’t I see my own doctor?

In Delaware, you have the right to see your own doctor for treatment following a work-related injury. However, your employer also has the right to require you to see an employer-chosen doctor in order to confirm your own physician’s diagnosis and treatment plan. The employer-chosen doctor should be impartial. You should rely on the recommendations of your treating physician.

If your employer is insisting that you can only see a doctor that they have chosen to treat your injuries, they are in the wrong and you should seek the advice of a workers’ compensation lawyer to protect your rights.

15. Can I see a different doctor?

In Delaware, you have the right to choose your own doctor after an injury on the job. You do not have to use a doctor that is chosen by your employer. However, your employer can require you to see their chosen doctor in order to confirm the extent of your injuries, and that the medication and treatment prescribed by your own doctor is reasonable and necessary.

16. Can I apply for unemployment if the workers’ compensation insurance company denies my claim?

Unemployment benefits can be claimed by people who have lost their jobs and are ready, willing, and able to work. Workers’ compensation is paid to people who have been injured on the job, to compensate them for their medical bills and their lost wages while they are unable to return to work. You cannot claim temporary total disability benefits at the same time as unemployment benefits, and you are only entitled to claim unemployment benefits if you are willing and able to return to work. You should seek the advice of an experienced workers’ compensation lawyer if you think your workers’ compensation claim has been wrongly denied. They will explain your rights, and ensure you get the benefits that you are entitled to by law.

17. Can I collect workers’ compensation benefits if the accident was my fault?

In Delaware, there is a no-fault system for workers’ compensation, which means that you can still collect workers’ compensation benefits if you caused the accident that resulted in your injuries. However, you will not be able to claim workers’ compensation benefits if it is shown that you were drunk or under the influence of drugs at the time of the accident.

18. What is a First Report of Injury form?

A First Report of Injury form must be completed and filed by the employer with their workers’ compensation insurance carrier within 10 days of notice of a work accident resulting in personal injury. It provides details about the employee, the employer, the accident, and the employee’s injuries.

19. Can I file a new claim if I already had a medical condition and an accident makes it worse?

Yes, you can file a new workers’ compensation claim for a pre-existing medical condition or injury that is aggravated by an accident on the job. You will only be entitled to benefits for the worsening of the condition, and not for any already existing needs. A condition is considered aggravated if you can show that you have a new, increased, or accelerated need for medical treatment.

20. What if I am permanently disabled from my work injury?

Typically, if you are permanently disabled from your work injury, you will be entitled to workers’ compensation in Delaware. Two types of permanent disability benefits are available - Permanent Total Disability Benefits and Permanent Partial Disability Benefits. Permanent Total is paid if your disability completely prevents you from working. Permanent Partial is available when you are injured but can return to work with different duties or a different schedule. Losses are categorized as scheduled or unscheduled dependent on the body part injured, which affects the amount of benefits payable.

If you are permanently disabled from a work injury, it is important to understand and protect your rights and entitlements. Our attorneys at Morris James have decades of experience getting people the benefits that they need and deserve when they have been disabled as a result of an accident on the job.

21. How is my average weekly wage determined for my workers’ compensation payments?

Average weekly wage is the weekly wage earned by the employee at the time of their job-related injury, including overtime pay, gratuities, and regularly paid bonuses but excluding all fringe or other in-kind employment benefits. It includes the reasonable value of board, rent, housing, or lodging received from the employer. In most scenarios, the average weekly wage is calculated by taking the total wages paid to the employee during the 26 weeks immediately preceding the job-related injury, and dividing by 26.

22. If I’m permanently disabled can I just get a lump sum instead of weekly payments?

If you are permanently disabled, it is possible to agree a commutation under which you will receive a lump sum amount instead of ongoing weekly payments. The Commutation must be approved by the Industrial Affairs Board (IAB.) Delaware workers’ compensation law also outlines the permanency compensation for each body part and the amount of benefits paid for permanent injury to that body part e.g. a shoulder is worth 250 weeks and the neck is worth 300 weeks of compensation. Before you agree any lump sum amount, you should contact a workers’ compensation attorney for advice. A lump sum should cover any and all of your ongoing medical bills as a result of the accident, which can be difficult to consider or estimate for an injured victim.

23. What can I do if my employer doesn’t have workers’ compensation insurance?

In Delaware, all employers are required to carry workers’ compensation insurance, with the exception of farmworkers and independent contractors. If your employer does not compensate you for injuries from a work-related accident, you have 2 years from the date of your accident to file a petition with the Office of Workers' Compensation. If you are in this position, you should call a workers’ compensation lawyer to get advice and improve your chances of success.

24. What do I do if my employer and/or their insurance company denies my claim?

If you receive notification that your workers’ comp claim has been denied, or you cannot reach a settlement agreement with your employer, you can file a Petition to Determine Compensation Due with the Delaware Office of Workers' Compensation to begin the appeals process. This petition must be filed within 2 years of your job-related injury.

Then, both parties file a pre-trial memorandum with the Office of Workers' Compensation and attend a pre-trial scheduling conference. Finally, the parties present their cases to the Industrial Accident Board (IAB), which issues a final written decision, approving or denying the claim. The injured worker has 30 days to appeal the decision to the Superior Court. If the Superior Court also denies the claim, the claimant has 30 days to file an appeal with the State Supreme Court. You need an attorney for this process who is familiar with the locality and the intricacies of workers’ comp law.

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