Delaware Workers’ Comp Laws

Workers comp is an essential aspect of employee protection, considering the injuries and sicknesses caused by work-related accidents and hazards that are always a part of reality among employees throughout the country, including those in Delaware.

In its 2021 survey, the state’s Department of Labor recorded an average incidence rate of 2.3 cases of workplace injuries or diseases for every 100 full-time workers. Those that resulted in days away from work reached an average of 1.1 per 100 employees, while three in every 1,000 cases led to job transfers or restrictions.

To help injured employees offset any losses they may suffer as a result of their disability, Delaware provides financial reimbursement through its own laws and programs related to workers’ compensation. In 2022, the Delaware Office of Workers’ Compensation handled a total of 5,548 petitions involving injury-related claims, with the Industrial Accident Board overseeing 3,518 petitions that concern claim decisions. The state takes this data from the OWC and the ​​IAB into account as it continues to improve its guidelines and fine-tune the process for injured workers.

To help employees in Delaware become aware of and understand the state’s laws involving workers’ compensation, this article will present various relevant details. It has a comprehensive summary of the requirements, factors, and regulations involved in filing a work-related injury claim. It also tackles the types of benefits they can get and the steps they can take in case their claim is denied.

Delaware Workers’ Compensation Insurance Requirements

Delaware requires all employers with at least one employee to maintain workers’ compensation insurance, with only a few exceptions. This policy covers any costs related to an employee’s medical treatment and lost income in case of injury. If an employee dies in a workplace accident, their dependents can also receive death benefits through workers’ compensation.

When maintaining workers’ compensation insurance, an employer may not require any of their employees to pay anything related to their insurance premiums or maintenance. However, the state does grant employers the chance to participate in the Delaware Workplace Safety Program. Through this option, they will become eligible for discounted insurance premiums if they implement viable health and safety initiatives, provide relevant training for employees, and prevent any hazardous conditions at their workplace.

There are certain employers and employees who are not required to have Delaware’s workers’ compensation insurance. They include:

• Farm workers (whose employers can obtain coverage for them if they want to).

• Independent contractors.

• Household workers who earn a maximum of $750 in a three-month period.

• Real estate agents.

• Casual workers.

• Government employees.

• Partners and sole proprietors (who must have a weekly payroll between $1,234 and $4,950 if they choose to obtain workers’ compensation coverage).

Corporate officers and members of limited liability companies in Delaware are automatically covered by workers’ compensation coverage but may choose to be excluded. Additionally, if they opt to remain covered, they must have the same weekly payroll as partners and sole proprietors.

Employers can purchase workers’ compensation insurance from any carriers that are licensed to sell policies in the state. Any employer who does not have workers’ insurance coverage can be held financially liable for the losses of an injured worker. They can also be fined up to three times the amount that they would have been required to pay in insurance premiums.

Delaware Workers’ Compensation Benefits

Workers’ compensation insurance in Delaware provides employees with various benefits when they suffer any injury or illness at work. As mentioned above, these benefits can include monetary coverage for medical treatment and replacements for lost income. There are also death benefits and $3,500 in funerary expenses if a worker dies from their injury or sickness. Other benefits include:

• Mileage reimbursement when traveling to and from a healthcare facility for treatment or medical supplies.

• Replacements for worn-out or defective prostheses for workers who have lost a body part due to their injury.

• Temporary or permanent disability benefits for either partial or total disabilities.

• Disfigurement benefits for any scars, burns, or amputations that resulted from the worker’s injury.

According to Title 19, Section 2302 of the Delaware Code, however, workers are given different weekly wages depending on whether they have been working for less than 13 weeks, more than 26 weeks, or any time in between. As such, the length of their tenure will also affect any wage compensation benefits that they will receive if they are injured.

On average, an employee will receive benefits equal to 66.67% of their gross weekly wages. The Delaware Secretary of Labor establishes an annual cap on this amount.

An injured worker or their dependents will begin receiving any medical benefits on the first day of the worker’s injury or disability. Other benefits are only paid starting on the fourth day; however, if the worker remains disabled for more than seven days, they will also be compensated for the first three days of their disability.

In terms of duration, partial disability benefits are paid up to a maximum of 300 weeks from the date of the injury. Meanwhile, disfigurement benefits are given for up to 150 weeks, depending on the severity of the disfigurement in question.

The period for receiving benefits related to permanent injuries also varies under Title 19, Section 2326. For example, a worker who loses an arm or a leg will receive compensation for up to 250 weeks, while those who lose a hand or a foot will be compensated for a maximum of 220 and 160 weeks, respectively.

Another rule exists if an employee returns to work and is only capable of working part-time or at a lower rate compared to their former job; they can receive additional benefits equal to two-thirds of the difference between their pre-injury wage and their new wage.

How to File a Workers’ Compensation Claim in Delaware

When a workers’ compensation claim is filed in Delaware, both the employer and the injured worker have certain requirements that they must follow in order to make the process go smoothly. These include deadlines and forms used when filing for benefits, reporting an injury, or appealing a denied claim.

When is the Deadline for Workers’ Compensation Claims in Delaware?

The Delaware Code states that all workers must report any work-related injury they have sustained within 90 days from the date of the incident that caused it. Workers with occupational diseases must notify their employer within six months of reasonably determining or discovering their illness is work-related.

Any employee who fails to report their injury or sickness within these given deadlines will not be eligible for any workers’ compensation benefits. As such, it is recommended that they give notice to their employer or supervisor as soon as possible.

After reporting their injury and undergoing preliminary medical treatments, a worker will then have a maximum of two years to file a claim for compensation. Again, this deadline will start counting down from the date of the incident. The same period is allotted for any claims related to death benefits, though the deadline will instead begin ticking from the date of the injured worker’s death.

However, if an employee suffers an occupational disease or injury from ionizing radiation, they will only have a maximum of one year to file their claim. This one-year deadline will also apply if the person dies as a result of their injury or sickness.

A Step-By-Step Guide on Filing a Workers’ Compensation Claim in Delaware

The following is a step-by-step guide on how a worker can file a claim for compensation and receive injury-related benefits in Delaware. It will also offer an overview of the required forms and additional guidelines that are commonly involved in the process.

1. Reporting the Injury and Receiving Initial Medical Treatment

As stated above, a worker must report their injury or occupational disease within 90 days or six months from when it occurred, respectively. They must also seek medical care for their condition as soon as possible to mitigate any problems that can potentially worsen their injury or illness.

Delaware state law stipulates that employees are allowed to choose their own healthcare provider when seeking initial medical treatment. When doing so, an injured worker must notify their employer or the latter’s insurance carrier regarding their choice within 30 days. If the worker’s injury is compensable, their employer will then be financially liable for any treatment carried out by the worker’s chosen healthcare provider.

If the worker’s injury or the disability caused by it lasts for more than three days, they can submit a claim for compensation to their employer or supervisor. If the worker dies from the harm they suffered, the notification can be submitted on their behalf by their dependents.

2. Waiting for the Employer’s First Report of Injury and the Claim Decision

After receiving a notification regarding a worker’s injury, the employer must complete and submit the First Report of Occupational Injury or Disease to their insurance carrier and the OWC within 10 days from when they were notified. They must also provide their insurance carrier with a report regarding the injured employee’s compensation claim once it has been given to them.

The worker must wait during this time for the insurance company to make a decision. Their employer must also take into account the potential compensation that the worker will receive depending on their average weekly wage and the other aforementioned factors that dictate certain benefits, such as disfigurement.

3. Receiving Benefits

If their compensation claim is approved, the worker will sign an agreement with their employer regarding the benefits they will receive. The latter will then file the agreement with the OWC. From here, the worker can begin receiving their benefits from their employer’s insurance carrier and focus on recovering from their injury or sickness.

Meanwhile, the insurance carrier must file a receipt detailing any benefits given to the worker with the OWC. In instances involving an employee’s death, they must submit the agreement on compensation that was formed with the employee’s dependents.

4. Returning to Work

After recovering from an injury or sickness, an employee can return to work. However, they must take note that Delaware is an at-will employment state, meaning that employers can terminate their employees for any reason if there is no written or oral contract between them and for as long as the reason does not violate any of the state’s labor laws.

In addition, unlike in certain states, an employer in Delaware is not required to return an injured worker to their job position prior to their injury. Because of this, it is recommended for a worker to remain in touch with their employer while recovering to determine what their post-recovery employment options will be.

While Delaware follows at-will employment regulations, any employer in the state who has at least 15 workers must adhere to the Americans with Disabilities Act. This prevents employers from discriminating against any qualified individuals with disabilities who are seeking employment opportunities.

It must be noted that even after returning to work, an employee in Delaware can still receive medical benefits, depending on the nature of their injury and the long-term rehabilitative care that they may still require.

What Should One Do If a Workers’ Compensation Claim in Delaware Has Been Denied?

Delaware allows injured employees to file a petition for compensation with the OWC if their employer or the latter’s insurance carrier denies their claim. This can be done without an attorney, and no filing fee is involved. The OWC will then schedule a pretrial hearing where the worker will have to complete a memorandum listing the benefits they seek and the witnesses they wish to bring to the hearing. A worker can file a petition within two years from the date of the incident that caused their injury.

Even if a worker is not required to have legal representation throughout this process, their employers must be represented by lawyers. Because of this, it may be viable for them to have a lawyer of their own. The OWC will not provide them with a lawyer, though it will connect them to a specialist who can address any questions related to the hearing and the petition process.

If the case leads to a hearing, the worker will be responsible for making any arrangements involving witness testimonies and accounts from a medical expert. They will also shoulder any fees related to medical testimony; generally, medical records or statements are not admissible as evidence in such cases.

The hearing will be overseen by the IAB or a hearing officer at the office closest to the location where the worker was injured. If a petition for wage replacement or the termination of benefits has been filed, a hearing will be scheduled 120 days from when the worker received the notice involving the pretrial hearing.

Once the hearing is concluded, the IAB or hearing officer will issue a decision regarding the worker’s petition. If the worker disagrees with the decision, they will have 45 days to contest it by providing the board with another petition.

Legal Resources for Injured Workers in Delaware

Delaware State Bar Association

The Delaware State Bar Association provides legal assistance to the public through its online services. These include a Lawyer Referral Service that people can use to find attorneys that they can consult with regarding their respective cases for 30 minutes, with each consultation costing $35. 

The organization’s website also has a directory of informative links that help users learn more about local courts, legal clinics, and state laws. In addition, its Access to Justice Program redirects Delawareans to nonprofit organizations and law firms that provide assistance to low-income residents in civil law matters, including workers’ compensation.

Delaware Department of Labor - Workers’ Compensation

Employees who wish to electronically file a claim or learn more about the state’s guidelines regarding injury-related claims can visit the Delaware Department of Labor’s Workers’ Compensation page. Its resources, which include annual reports and documents describing state regulations, can be viewed online or downloaded. The section also offers access to the forms that an injured worker may need to file a claim or petition. 

For additional queries, people can contact the Delaware DOL by calling (302) 761-8200 (Option 1) or by sending an e-mail to DOL_DIA_WorkComp@Delaware.gov.

Delaware Legal Help Link

Delaware Legal Help Link is managed by nonprofit legal service providers and community organizations that focus on assisting low-income Delawareans with civil law concerns. The website has a directory that leads users to other firms and organizations that provide legal assistance. Its Legal Help Finder also offers referrals for potential legal representation based on a user’s location. Additionally, people can access resources that discuss different topics, including employment law matters such as workers’ compensation and discrimination.

Delaware Courts - Limited Legal Assistance

Employees who choose to represent themselves as they appeal denied workers’ compensation claims can visit the Legal Assistance section on the Delaware Courts website. Here, they can sign up for a one-time, 15-minute consultation with a volunteer lawyer who can address questions related to their case. However, this service is only available for those who have not previously received any legal assistance. After the consultation, users are redirected to other legal service providers that can help them.

People can schedule an appointment for a consultation by calling (302) 255-0476 or by registering in person through the Information Desk on the first floor of the Leonard L. Williams Justice Center.