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How Does Workers’ Compensation Work in Delaware?

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June 4, 2021

Workers' compensation, often simply called workers’ comp, is a no-fault insurance that protects employees when an employee is injured or becomes ill as a result of their job. It is available throughout the United States of America but is governed by state-specific rules in each individual state. In Delaware, the workers’ compensation system is administered by the Delaware Department of Labor’s Industrial Accident Board.

Workers’ compensation helps employees by providing benefits to injured employees (or their surviving dependents). 

Delaware employers must carry workers’ comp insurance

Under Delaware law, all employers with 1 or more employees are legally required to carry workers’ compensation insurance, and face severe financial penalties if they do not. Employers of farm workers are exempt from the requirement but can choose to provide workers’ comp coverage for their workers. Independent contractors are also exempt from the requirement but this is not a clear cut definition. It can be very difficult to determine whether a worker is an independent contractor or an employee who should be covered by workers’ compensation insurance. An employer or worker in a situation where this might be an issue, should seek good legal advice because it will have a huge effect on their rights and responsibilities. 

Delaware employers must maintain workers’ compensation insurance coverage for their employees. Employers have the option of purchasing insurance from an insurance provider licensed by the Delaware Department of Insurance, or by self-insuring (either individually or as a group.)

Workers’ comp covers work-related injury, death, and occupational disease 

Workers’ compensation is available to employees who suffer an injury, death, or illness as a result of their job. This includes aggravation of an old injury or illness. Anything from a broken bone due to a trip or fall at work to black lung or asbestosis caused by exposure to toxins may be covered by workers’ comp. It is not necessary to show that the employer is at fault or that the injured worker is free from blame in order to be eligible for workers’ comp benefits. Workers’ comp is a no-fault insurance so the worker’s behavior is irrelevant, unless they are not exercising reasonable care (such as operating machinery while intoxicated.)

Typically, the covered injury happens in the workplace but workers’ comp covers any work-related injuries, including injuries that occur while working away from the usual place of work, such as on a job site or while visiting a client.

Workers’ compensation benefits are broad 

Workers' compensation insurance will cover medical expenses (including treatment, medications, and mileage reimbursement) and lost wages (while out of work or on reduced wages) as a result of an occupational injury or disease. If an employee is completely out of work, the benefit is 66⅔% of the employee’s gross weekly wages. If an employee is receiving reduced wages, the benefit is ⅔ of the difference between the employee’s pre-injury wage and post-injury wage. More detailed information is available in our Workers’ Compensation FAQs.

Workers’ comp can also provide compensation, either in an agreed lump sum or recurring payments, when an employee is permanently disabled or disfigured. If an employee dies as a result of a work-related injury or illness, death benefits (including funeral expenses) may be payable under workers’ comp coverage to the dependents of the deceased worker.

Injured Delaware workers can use their own doctor

Some states require a worker to use a doctor designated by the employer for a work-related injury or illness. In Delaware, workers can choose their own healthcare providers for all treatment. An employer can, however, require the worker to see an impartial doctor chosen by the employer to confirm the treating physician’s diagnosis and treatment plan. 

The workers’ compensation claim process

When a worker is injured through work, or learns that their illness or injury has been caused by their job, they should notify their employer in writing immediately. Many employers have a standard form for this purpose. The employer must be notified within 90 days of a work-related injury, or within 6 months of learning that an illness is work-related. The employer is then required to file a First Report of Injury with the Delaware Office of Workers’ Compensation within 10 days of notification of a work-related injury or illness. 

The employer will also notify their workers’ comp insurance provider of the potential claim, and the insurance company will decide whether to acknowledge or deny the claim. If the claim is acknowledged, the worker and the employer will agree and sign an agreement to benefits. There may be some negotiation between the employer’s insurance provider and the worker about the agreed benefits. It is advisable for a worker to get legal advice at this stage to ensure that they are protected and obtain adequate compensation for all of their eligible expenses. Once the agreement is final, it is filed with the Delaware Office of Worker’s Compensation. The worker should promptly begin receiving workers’ compensation payments in the same frequency as their regular paychecks prior to the work-related injury or illness.

 If the employer’s insurance provider denies the claim or if the employer and employee cannot come to an agreement, the worker can appeal to the Industrial Accident Board. To do so, the worker must file a Petition to Determine Compensation Due with the Delaware Office of Workers' Compensation within 2 years of the job-related injury, or within 1 year of the date that they knew that their occupational disease may be job-related. There will be a hearing before the Industrial Accident Board, which will then approve or deny the claim. If the worker wishes to appeal the decision to the Superior Court, they must do so within 30 days. If the Superior Court also denies the claim, the claimant can appeal to the State Supreme Court within 30 days. A worker appealing against a workers’ comp denial needs an experienced workers’ comp attorney to navigate this process and the technicalities of workers’ comp laws.

Employers and employees can agree a lump sum payment

Sometimes an injured worker would prefer to receive their workers’ compensation benefits in one lump sum rather than in installments. In order to do this, the employer (or their insurance company) and the employee must agree the lump sum settlement (or commutation.) A commutation must also be approved by the Industrial Accident Board. Neither the employer nor the employee can be forced to agree to a lump sum payment rather than the standard installment payments.

Typically, the employer’s insurance company and the employee will have extensive negotiations to agree the amount of a commutation. The lump sum will replace the worker’s right to any future benefits for this injury/illness so it should reflect all future expenses, and account for the risk of potential complications. It is essential that the worker has good legal advice for these negotiations because the employee will not receive any future benefits, and the employer’s insurance company will work hard to minimize the compensation amount. 

A workers’ comp lawyer can protect a worker’s legal rights

Workers’ compensation claims are sometimes amicable and straightforward but can also be contentious and stressful. In either situation, a workers’ compensation claim can substantially affect a person’s life and income, and should be handled with care. It is a technical area of the law involving individuals, employers, private insurance companies, and state agencies. An experienced workers’ comp attorney can navigate the legal and practical obstacles to protect a worker’s legal rights, and obtain a fair compensation amount.


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