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Filing a Workers Compensation Claim - Delaware

This page provides answers to the following questions:

State of Delaware, Office of Workers' Compensation

1. I had an accident at work. How do I file a workers compensation claim in my state?

If you are injured on the job, you must immediately notify your employer in writing of the injury and request medical attention. Without providing notice to your employer or accepting medical attention for your injury, you may lose your right to compensation and/or additional benefits.

Your employer should file a First Report of Occupational Injury or Disease within ten (10) days to the Office of Workers' Compensation and to their insurance provider. This form must be completed no matter how minor the injury. When your employer files this form, it is not an admission of liability; however, your employer may be fined for failing to file this form. From the time of the accident, your employer should provide all necessary medical, surgical and hospital treatment from the time of your accident.

2. Should my employer have workers compensation insurance? How do I know if I am covered?

Employers with one or more employees are required to carry workers' compensation insurance. However, farm workers are exempt from this requirement.

Your employer or your employers insurance provider pays your benefits under Delaware law. If your employer refuses to compensate you for injuries or diseases contracted while you are on the job, you have two (2) years from the date of your accident to file a petition with the Office of Workers' Compensation. It is your decision whether or not you will require the assistance of an attorney to file a petition; however, a workers' compensation specialist is available to assist you in filing a petition and inform you of the hearing process should your claim proceed. Your employer will be expected to be represented by an attorney.

3. What are the conditions that enable me or prevent me from claiming benefits under my state's law?

Under the Delaware workers' compensation system, benefits are available to individuals who are injured or who contract an occupational disease while on the job. The Delaware legislature has designed the system to provide benefits that include medical treatment, temporary disability payments, compensation for permanent injury and/or disability, and benefits that may be paid to an individual's survivors in the event of a workplace death.

Under Delaware law (DE Code, Title 19), your ability to receive benefits is limited to situations or circumstances where personal injury is sustained by accident or arising out of and in the course of the employment. If you are injured while engaged in work-related tasks, whether at your place of work or while pursuing your employer's business elsewhere as a part of your work duties, you will be able to file a workers compensation claim with better opportunities to receive benefits. However, one situation, for example, that would not qualify you to receive benefits under this scheme is if a fellow co-worker who is motivated by personal reasons injures you.

4. What benefits might I be eligible to receive?

Under Delaware Workers' Compensation system, you are entitled to a range of benefits from medical benefits to death benefits payable to your survivors.

  • Medical Benefits: Your employer or your employer's insurance provider will pay for all necessary medical treatment for your injury or occupational disease. Delaware has established the Health Care Payment System for medical treatments. The system provides a fee schedule for all charges related to medical services provided and/or in compliance with Section 2322 of Title 19 of the Delaware Code.
  • Temporary Total Disability Benefits: When your injury results in you missing work for more than three days, you are entitled to compensation/wage-replacement benefits on the fourth (4th) day. If your injury causes you to miss work for seven days, you may receive compensation for the first three (3) days of missed work. This compensation is calculated based on a rate of two-thirds (66.67%) of your gross weekly wages, with a ceiling amount established by the Secretary of Labor.
  • TemporaryPartial Benefits: This is compensation related to wage differences if you are unable to resume work full-time because of your injury or you cannot work with maximum productivity as a result. This is usually calculated as two-thirds of the difference between your former wage and your current wage under your changed employment status.
  • Permanent Impairment Benefits: This is compensation for permanent disability or loss of function. If you qualify for these kinds of benefits, you should expect to receive a percentage of either a scheduled or non-scheduled loss. This will depend on whether your injury causes permanent disability or loss of function to an external body part, like a limb, or an internal body part, like an organ.
  • Disfigurement Benefits: You may file for benefits one (1) year after your injury for any scars, burns, or amputations resulting from your workplace injury.
  • Death Benefits: If your occupational injury or illness results in your death, benefits may be payable to your dependent survivors. The payments will depend on the number of dependents and personal characteristics of those dependents, including their age and their enrollment in full-time schooling. This is usually calculated at about eighty-percent (80%) of a maximum rate of wages determined by the Secretary of Labor.
5. How much time do I have to file my claim? What are the stages of the claims process? What should I expect?

If your employer refuses to compensate you for your injuries or you are unsatisfied with the compensation agreement between you and your employer, you have two years from the date of your injury to file a petition with the Office of Workers' Compensation. After you complete and file the petition, a pretrial hearing is scheduled by the Office of Workers' Compensation. At the pretrial, a pretrial memorandum is completed whereby you will list all benefits you are seeking and name any witnesses you may call for at the hearing. The next step is that a hearing date is assigned. The Industrial Accident Board or a Hearings Officer will conduct hearings. This is a formal proceeding, although different than a hearing that might be held before the Superior Court.

6. If I am not happy with the determination, how do I appeal?

After a pre-trial hearing has been held, you or your employer has up to thirty (30) days to request a mediation to resolve any issues or disagreements that persist past the pre-trial hearing. Decisions made by the Industrial Review Board are final and conclusive unless within thirty days of receiving a determination, either of the parties files for appeal. An appeal is filed with the state Superior Court. All appeals made in the Superior Court must comply with the rules of that court and are subject to the procedures and styling of that court.

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