Delaware Workers' Compensation Claims: Eligibility, Filing, and Appeals

Learn about your rights under the workers' compensation system in Delaware.

Updated by , J.D., University of Missouri School of Law

If you're 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

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.

Employer Defenses to a Workers' Comp Claim

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.

Filing a Delaware Workers' Comp Claim

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.

Delaware Workers' Comp: Types of Benefits Available

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.

Appealing a Workers' Comp Denial in Delaware

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.

Filing the Appeal

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.

Pre-Trial Conference

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 names and addresses of the witnesses who will testify at the hearing
  • a complete statement of what benefits you are seeking and why
  • a complete statement by the insurance company as to why the claim was denied
  • a copy of any doctors' reports
  • notice of your intent to use any videos or photographs at the hearing, and
  • an estimate of the time needed for the hearing.

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' Comp Hearing

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.

Appeals Through the Court System

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.

Contact a Delaware Workers' Comp Lawyer

Although injured workers are not required to have an attorney to file a workers' comp claim, it's usually a good idea to hire one if your claim is high value, complex, or if you need to appeal to a denial of benefits. Workers' compensation appeals can be complicated and follow specific procedural rules. Most attorneys charge a fee only if you win your case.

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