If your workers' compensation claim is denied in Delaware, you have the right to file an appeal with the Office of Workers' Compensation. This article will explain the common reasons for a denial, how to file your appeal, and what will happen during the appeals process. (For an overview of eligibility and benefits, see our article on filing a Delaware workers' comp claim.)
First, it may be helpful to understand the possible grounds for a denial of workers' compensation. The insurance company may legally deny your claim for a variety of reasons. For example, your claim may be denied if you were off duty and not doing a work-related task when you got injured. Your claim may also be denied if you were intoxicated, failed to use an available safety device, or failed to notify your employer of your injury within the required time.
However, there are exceptions to every rule and whether your claim should be accepted depends on the circumstances of your injury. The insurance company may also deny your claim for an illegitimate reason, or simply to see if your claim will go away. You shouldn't accept a denial as a final statement of your eligibility for benefits.
To start the formal claim process, you will need to file a Petition to Determine Compensation Due with the Office of Workers' Compensation. Your petition must explain the dispute and why you need a hearing before the Industrial Accident Board. To file the petition by mail, send it to the following address:
Office of Workers' Compensation
4425 N. Market St., 3rd Floor
Wilmington, DE 19802
Although it is not required, it's best to send the petition by certified mail, return receipt requested. That way, you will have a record that your petition was received and on what date.
For most injuries, the petition must be filed within two years of the accident that caused your injury. However, in the case of an occupational disease, the petition must be filed within one year of the date that you became aware that your condition was caused by work. It is prudent, though, to file the petition within one year of the date you received the diagnosis of your occupational disease.
Once your petition is filed, you will receive notice of the date and time of a pre-trial scheduling conference. Before the conference, the parties must file a pre-trial memorandum with the Office of Workers' Compensation, which must include the following information:
The pre-trial memorandum will serve as a guide for what will be discussed during the pre-trial scheduling conference. The purpose of the conference is to focus the issues for the hearing, to identify and schedule the witnesses who will testify, and to get an estimate of how long the hearing will take.
The workers' compensation hearing (or "trial) will take place before the Industrial Affairs Board (or a hearing officer) in the office nearest to where the injury happened. The hearing will take place within 120 days of the date of the notice of the pre-trial scheduling conference. You will receive notice of the date, place, and time of the hearing from the Office of Workers' Compensation.
At the hearing, both sides will present evidence, question witnesses, and make arguments to the Board. A written decision will be issued within 14 days after the hearing and will be delivered personally or by certified mail. If you are awarded benefits, the first payment must be made within 14 days of the decision, unless the insurance company appeals the decision.
The Industrial Accident Board has prepared written rules governing the procedure for hearings before the Board. To view these rules, visit the Delaware workers' compensation website and select "Rules of the Industrial Accident Board." The Office of Workers' Compensation also has specialists available to help you file your petition and answer questions about the hearing process.
The decision of the Industrial Accident Board is final, but either party may appeal to the superior court for the county where the injury took place. The appeal must be filed within 30 days of the mailing date on the Board's written decision. The superior court does not hold another hearing; it decides the appeal strictly based on a review of the record of the hearing before the Board. The superior court may uphold the Board's decision, reverse the Board's decision, send the case back to the Board for further action, or take a combination of these actions.
If you're not satisfied with the decisions by the superior court, you can appeal to the Delaware Supreme Court. This appeal must be filed within thirty days of the superior court's decision. The Supreme Court's decision is final and binding.
Although injured employees are not required to have an attorney, it's usually a good idea to hire one if you need to appeal a workers' comp denial. Workers' compensation appeals can be complicated and follow specific procedural rules. You can also expect that an experienced attorney will be representing the insurance company.
Most attorneys will provide an initial consultation for free. And, if an attorney agrees to represent you, he or she will usually handle the case for a contingency fee. This means that the lawyer will take a percentage of any settlement or award recovered on your behalf. However, by state law, the attorney may not charge more than a 30% contingent fee.