Delaware Workers' Compensation Claims: Eligibility, Filing, and Appeals
Learn about your rights under the workers' compensation system in Delaware.
If you are injured at work or contract an occupational disease in Delaware, you may be entitled to workers’ compensation benefits. Workers’ compensation is a no-fault system, meaning that you don’t have to show that your employer did anything to cause your injuries. And, with a few exceptions discussed below, you can collect benefits even if your actions contributed to your injury.
ELIGIBILITY FOR WORKERS’ COMPENSATION
In Delaware, all employers must carry workers’ compensation insurance. Most employees are covered by workers’ compensation. However, there are a few categories of workers that are not covered, including low-wage farm and household workers, some real estate agents, and government employees. Independent contractors also are not covered by workers’ comp.
An employee can recover workers’ comp benefits as long as the injury happened in the course of employment. This typically means that the injury occurred while the employee was on duty at work, or while the employee was away from work and performing a job-related task. For example, workers’ compensation would cover an employee who was injured while taking a company truck to a repair shop.
In addition to injuries caused by a one-time accident, you can also receive workers’ compensation for injuries or medical conditions that develop over time. Occupational diseases, such as “black lung” (a disease caused by inhaling coal dust), and repetitive trauma conditions, such as carpal tunnel syndrome, are also covered.
THE EMPLOYER’S DEFENSES
Although the workers’ compensation system generally doesn’t consider fault, some types of misconduct by an employee are grounds for a denial of workers’ comp. For example, a claim may be denied if the injury was caused by the employee’s intoxication, failure to use an available safety device, or fight with a coworker. Workers’ compensation may also be denied if the employee acted recklessly or intentionally caused the accident or injury.
To receive workers’ compensation benefits in Delaware, you must notify your employer of your injury within 90 days of your accident, unless your employer already knows about it. If you fail to give notice within this time you could lose your right to benefits. If you have an occupational disease, you must notify your employer within six months after you first learn that you developed a disease that could have resulted from your employment.
In addition to giving notice to your employer, you will also need to file a workers’ compensation claim. You can do this by filing a petition with the Office of Workers’ Compensation. The time limit for filing a claim is two years for most types of injuries. For occupational diseases, however, the deadline is shorter. You must file a petition within one year from the time you first became aware that your condition was caused by your job. If you and your employer are able to reach a written agreement as to what benefits you are entitled to, that will also satisfy the timing requirements.
TYPES OF BENEFITS
Workers’ compensation will cover any medical treatment, medicine, and equipment necessary to treat your injury. You can select the doctor you would like to treat you, but you must notify your employer of your choice within 30 days of your first treatment.
You are also entitled to receive a portion of your average weekly wages while you’re out of work and recovering from your injury. These benefits, called temporary disability benefits, are 66 ⅔% of your average weekly wages, subject to a minimum of $229.82 per week and a maximum of $689.45 per week (as of July 2016).
If you develop any permanent impairment as a result of your injuries, you are entitled to permanent disability benefits. There are two types of disability benefits. Permanent total disability benefits are available if you are completely disabled and no longer able to earn a living. Permanent partial disability benefits are available if you have some degree of disability, but you are still able to return to work in some wage-earning capacity.
Permanent total disability benefits are 66 ⅔% of the worker’s average weekly wages, subject to the same maximum and minimum weekly amounts described above. These benefits continue for as long as the disability persists.
Permanent partial disability benefits are a bit more complicated; they are divided into scheduled injuries and non-scheduled injuries. Scheduled injuries are those specifically listed in the Delaware Workers’ Compensation Act and include loss of an eye, loss of a limb, and other body parts. For each body part, the schedule lists a maximum number of weeks that benefits are payable. For example, for the total loss of an arm, the injured worker is entitled to receive 250 weeks of benefits. Generally, benefits are 66 ⅔% of the injured worker’s average weekly wages.
For a nonscheduled injury, benefits are based on the difference between the wages you earned before the injury and your earning power after the injury. You are entitled to compensation for your lost earning power at the rate of 66 ⅔% of the difference between your earnings before the injury and your earning power after the injury. So, if you were making $500 per week before the injury but are able to earn only $400 per week after the injury, you are entitled to compensation of $66.67 per week ($500 - $400 X 66 ⅔%) for up to 300 weeks.
The maximum and minimum weekly benefit amounts described above also apply to permanent partial disability benefits, whether scheduled or non-scheduled.
If you file a petition with the Delaware Office of Workers’ Compensation, your case will be scheduled for a hearing before either a hearing officer or the Industrial Accident Board. The hearing will take place in the Division of Industrial Affairs office nearest the site where the injury occurred. After the hearing, you can expect a decision within 30 days. The Industrial Accident Board’s decision is final unless either party files an appeal with the Superior Court within 30 days of the notice of the award.
For more information on the appeals process, see our article on appealing a denial of your Delaware workers’ comp claim.