DELAWARE WORKERS’ COMPENSATION CLAIM HANDLING GUIDELINES
- 1 DEFINITIONS
- 2 EXCLUSIVE REMEDY -2304
- 3 JURISDICTION AND LIMITATIONS OF ACTIONS
- 4 COMPENSABILITY
- 5 EXCLUSIONS AND DEFENSES
- 6.1 Calculation of Average Weekly Wage
- 6.2 Total Disability Benefits
- 6.3 Partial Disability Benefits
- 6.4 Compensation for Permanent Injury - Paid in addition to total or partial disability benefits
- 6.5 Disfigurement
- 6.6 Punitive Damages/Pain and Suffering
- 6.7 Medical Benefits
- 6.8 Death Benefits
- 6.9 Huffman Suits
- 6.10 Counsel Fees
- 6.11 Litigation Costs
- 6.12 Loss of Sight
- 6.13 Loss of hearing
- 7 SUBROGATION
- 8 ATTORNEYS
- 9 CLAIMS PROFESSIONALS
- 10 LITIGATION AND APPEAL
- 11 SETTLEMENT
- 12 INSURANCE
Includes all those who employ others unless specifically excluded, and if the employer is insured, the term shall include the insurer.
1. Spouse and minor children of a farm employer unless the spouse or minor child is a bona fide employee of a farm employer and is named in an endorsement to the farm employer's contract of insurance
2. Any person whose employment is casual and not in the regular course of the trade, business, profession or occupation of his or her employer
a. “Casual employment," as used in this paragraph, means employment for not over 2 weeks or a total salary during the employment not to exceed $100 and, subject to the above, repairs and maintenance of employer's regular business shall not be construed as casual employment
3. Inmates in the custody of the Department of Correction
4. A sports official at a sports event in which the players are not compensated
5. Executive officers of covered employers are covered by the Act
6. Sole proprietors and partners are not covered by the Act, but may elect coverage
1. A contractor or a sub-contractor is deemed an employer under the Act, and is responsible for covering their employees.
2. Independent contractors – an individual that performs work for a “contracting” entity in exchange for remuneration, but who is not an employee of the contracting entity.
a. Can elect coverage, or be covered by the contracting entity.
3. General contractor must obtain a certificate of valid insurance from independent contractor or sub-contractor, which must remain valid through date of any work injury. If general contractor fails to do so, the employees of the subcontractor will be covered by the general contractor for workers compensation purposes.
4. How a person deemed an independent contractor depends on multiple factors. Most important is amount of control over work retained by “employer”; can employer terminate the relationship at will; which party furnishes the materials needed for the work; does the worker maintain control over the method and manner that the work is completed
EXCLUSIVE REMEDY -2304
1. Employee injured in course and scope of employment cannot file suit against the employer, or co-worker, in civil court for damages. Workers Compensation is the sole remedy.
2 If the employer is not covered, then employee can pursue civil remedies for damages.
Employees are entitled to Workers’ Compensation Benefits for injuries arising out of and sustained in the course of employment that occur in the State of Delaware.
Under Section 2303 of the Delaware Workers’ Compensation Act, Delaware jurisdiction can be conferred to injuries that occur outside the state of Delaware. An employee will be entitled to benefits under this section if the injury occurs outside of Delaware and:
1.The employee’s employment is principally localized in the state of Delaware. Employment is principally localized in a state when:
a). The employer has a place of business in the state and the person regularly works at or from such place of business; or
b). If the employer does not have a place of business in the state, the person is domiciled and spends a substantial part of his working time in the service of his employer in the state; or
2. The employee is working under a contract of hire made in the state of Delaware for employment not principally localized in any state; or
3. The employee is working under a contract of hire made in Delaware for employment principally localized in another state whose workers’ compensation law is not applicable to the employee’s employer; or
4. The employee is working under a contract of hire made in Delaware for employment outside the United States and Canada.
1. Notice of Occupational Disease – 6 months from date of knowledge of work related cause
2. Notice of industrial injury - Must be provided to the employer within 90 days, no compensation due until such notice is provided
1. Two years to file claim for personal injury from date of injury -2361
2. Death claims - Claim must be filed within 2 years of death
3. Occupational Disease Claims - 1 year from date of knowledge of work related cause, or through exercise of reasonable diligence should know of cause.
1. Claimant has five years from date that last payment was made on claim before statute will run on an accepted claim.
2. If the employer has knowledge of an alleged injury, and fails to give claimant notice of the statute of limitations, the statute will not begin to run until such time as notice is provided.
Employees are entitled to Workers’ Compensation Benefits for injuries arising out of and sustained in the course of employment.
Involves the time, place and circumstances of the injury
1. Employee engaged in service of the employer at time of injury; or
2. Employee on the premises of employer at time of injury; or
3. Employee not on premises, but engaged in service of the employer, and presence at location of injury was required by nature of job
relates to the origin of the accident and its causeCompensable if the injury arises from a situation which has a reasonable relationship to employment
Falls caused by a condition personal to the claimant are not compensable unless employment contributed to the fall. Such as employment activity being the trigger of the condition/injury
These are compensable
Idiopathic v. Unexplained = Idiopathic is a known, non-work related cause, and is not compensable. Unexplained is an unknown cause, but occurs at work, and can be compensable
Claim is compensable if employment placed claimant in the position in which she was injured
Premise extends beyond the strict confines of where an employee is assigned to work. Depends on employer’s degree of “use and control” of the area the injury occurred
Very fact specific, compensability turns on facts of the case in terms of how far claimant deviated from furthering the interests of the employer
Employee must show that the injury would not have occurred “but for” the event at work.
1. Aggravations of Pre-existing conditions - Work event must be more than trivial contributor to the injury. Aggravations are compensable as new work injuries.
2. Cumulative injuries - Compensable if the ordinary stress and strain of the employment is a substantial factor in causing the injury
3. Mental Injuries – No physical injury involved, compensable if: Work conditions were actually objectively stressful; and work conditions were the substantial cause of the injuries
1. Failure to submit to examination – employee deprived of compensation during period of refusal. Requires a petition to stop benefits, and the IAB in reality will not suspend benefits unless there are multiple violations.
2. Personal Animus – Compensation barred if injury caused by willful act of another employee directed at claimant for reasons unrelated to employment
3 Willful Disregard for Safety - can be a bar to compensation. Evidence of whether employee was wearing a seatbelt at time of motor vehicle accident is not admissible to establish this defense.
4 Intoxication – Employee intoxicated, and intoxication caused the injury
5 Lack of medical basis to support an injury
a). 1st contact with medical provider – very significant
b). Pre-existing conditions/health problems
c). Delay in obtaining treatment after alleged injury
6 Factual defenses to the occurrence of an injury
b). Witness observations
7. Voluntary Horseplay
8. Employee Refusal of reasonable medical services – claimant forfeits right to compensation for any increase in incapacity caused by the refusal, which can include vocational services.
9. Refusal of employment procured for employee – bar to compensation unless refusal is justified
10. Incarceration after a finding of guilt – benefits can be suspended, by agreement or by petition.
1. An employee that has been employed for at least twenty six (26) weeks at the time of injury = gross wages for 26 weeks preceding the injury, divided by twenty six
2. Employee employed for less than 26 weeks, but at least 13 weeks = Gross wages earned divided number of weeks employed
3. Less than 13 weeks of employment = Determined by whether employee was hired based on hourly wage, weekly wage, or monthly salary. If wages cannot adequately be determined, fixed by the Average weekly wage of other similarly situated workers in the past 26 weeks
Payable on the fourth day of incapacity. If incapacity lasts beyond 7 days, then benefits are retroactive to the 1st day of incapacity.
1. See Delaware Rate Tables – figure changes yearly
a. DE – Maximum Rate
b. DE – Minimum rate
c. DE – TTD rate is 2/3 of AWW, but not less than min or greater than max
Maximum of 300 weeks. Partial disability is calculated as 2/3 of difference between pre-injury average weekly wage and claimant’s weekly earnings
1. Earning Power Assessments – when a claimant receiving total disability benefits is released to return to work with restrictions, the employer can obtain an earning power assessment. Based on the available jobs identified in the earning power assessment, employer can petition the board for a reduction in claimant’s disability benefits, often times resulting in a partial payment being due to claimant on an ongoing basis.
2. Claimant returns to work with loss of earnings
1. Act provides for specific awards, measured in terms of weeks of total disability compensation, for the loss of certain body parts. Permanency award is a percentage of impairment, defined by the AMA Guides, applied to the scheduled total loss (number of weeks) of that body part.
Maximum of 300 weeks for loss of body parts not specifically provided for under the Act. Nearly any injured body part can fall under this section, most frequently spinal injuries.Act referenced above. The permanency award will then be a percentage of the total loss of use of that body part.
a). Ex: Claimant has an accepted arm injury, and is assigned a 10% permanent impairment rating. The scheduled loss for an arm is 250 weeks of benefits. Claimant would receive 10% of 250 weeks, or 25 weeks of benefits at his total disability rate.
b). Many physicians still use the 5th edition, even though 6th is most current
c). Employer will obtain expert to evaluate claimant and assign a percentage of impairment
d). If an agreement cannot be reached regarding the disparity between claimant’s physician’s impairment rating and the defense impairment rating, litigation may be involved.
e). Claimant may be able to recover multiple permanency awards for multiple injured body parts
f). Claimant will likely wait one year at least from date of injury before pursuing permanency award
g). No requirement that claimant be at MMI, though the concept is still generally applicable
Claim can be filed after one year from injury/surgery causing disfigurement.1. A maximum of 150 weeks of total disability benefits are available, if the disfigurement is visible and offensive when the body is normally clothed, and applies to any body part, not just head/face/neck.
2. Factors include size shape and location on the body of the disfigurement; social impacts on the claimant; other factors the Board deems relevant.
The Act does not provide benefits for pain and suffering, or punitive damages.
During the period of disability the employer is responsible for payment of reasonable, and related medical treatments, services and supplies
1. There is no ability to direct treatment, no panel providers.
2. A medical provider must be certified, or the employer is not responsible for paying for the treatment
a). List of certified providers is available on department of labor and industry website
3. Provider must provide a bill, and attach treatment note explaining the service
4. Carrier has 30 days to accept or deny a bill. Denial must be in writing, with explanation for basis of denial
5. Paying bill without accepting liability for claim or future treatment. Payment of a medical bill is not an admission of liability if:
a). Claimant and the medical provider must be provided an explanation, in at least 14 size font, that the claim is in dispute, and the bill is being paid without prejudice to employer’s right to contest liability for the workers’ compensation claim going forward.
b). Benefits that are paid due to a belief that the claim is compensable (compulsion), may preclude the employer from denying future payments as not compensable.
6. Fee Schedule - Delaware now has a fee schedule for medical bills. Prior to imposition of the fee schedule, Delaware had one of highest per claim costs in United States and providers received 100% of billed charges. The Fee schedule/Health Care payment system applies to treatment incurred after May 23, 2008. The date of treatment is the relevant date, not the date of injury. Injuries incurred prior to May 23, 2008 can still produce treatment subject to the fee schedule
7. Utilization Review - Delaware now also has Utilization Review. A Utilization Review Request must be filed within 15 days of denial of the bill. There are 7 practice guidelines that treatment must fall into to be subject to the UR process.
a). Carpal tunnel; cervical spine; low back; shoulder; lower extremities; chronic pain; cumulative trauma
b). If treatment does not fall within a practice guideline, the UR process is not available
c). If a provider is not certified, UR is not available
d). Carrier completes UR request form and medical packet.
i)). Request must seek review of a named physician. A request for review of a practice name or company will not be processed.
ii). A copy of the determination will not be sent to employer counsel. UR determination should be rendered within 15 days of UR request. Treatment can be denied pending results.
iii). The Parties currently have 5 years to file for review of the determination before the Board, due to a recent controversial Supreme Court Decision.
e). Once in litigation it a reasonable/necessary standard that will be applied by the Industrial Accident Board. Employers are rarely successful before the Board in challenging treatment that was found to be within the practice guidelines.
f). Filing a Utilization Review admits a causal relationship between the treatment and the work injury. If there is a questions concerning compensability, be careful not to waive the defense by filing a UR.
8. Fines of between $1,000 and $5,000 can be imposed for a violation of the above sections.
In case of death, compensation shall be computed on the following basis and distributed to the following persons:
a). To the child or children if there is no surviving spouse entitled to compensation, 66 2/3% of the wages of the deceased, with 10% additional for each child in excess of 2, with a maximum of 80% to be paid to their guardian;
b). To the surviving spouse, if there are no children, 66 2/3% of wages provided that the minimum amount payable shall not be less than $15 per week;
c). To the surviving spouse, if there is 1 child, 66 2/3% of wages;
d). To the surviving spouse, if there are 2 children, 70% of wages;
e). To the surviving spouse, if there are 3 children, 75% of wages;
f). To the surviving spouse, if there are 4 or more children, 80% of wages;
g). If there is no surviving spouse or children, then to the parents, or the survivor of them, if actually dependent upon the employee for at least 50% of their support at the time of the worker's death, 20% of wages;
h). If there is no surviving spouse, children or dependent parent, then to the siblings, if actually dependent upon the decedent for at least 50% of their support at the time of the worker's death, 15% of wages for 1 sibling, and 5% additional for each additional sibling, with a maximum of 25%, such compensation to be paid to their guardian
1. Benefits payable for 400 weeks to spouse. Benefits payable to a minor child until he/she reaches 18. If child is enrolled in school he/she receives benefits until 25, or until no longer enrolled in school, whichever occurs first.
2. Dependents that are not United States residents, receive only half of the benefits that a resident would be entitled to.
3. If a surviving spouse remarries, her weekly benefits stop. However, she is then entitled to two years worth of indemnity benefits payable in a lump sum.
If payment is not timely made pursuant to an agreement or order, a Huffman Demand can be made. If payment is not received within 30 days of the demand, penalties accrue at 10% of the amount due per day up to 100% of the award. These actions are brought before the civil courts, not the Board.
Employee counsel can receive a reasonable fee up to 33% percent of an award. Award may include the cost of medical bills, permanency, or indemnity benefits paid under a Board Decision. Generally, claimant’s counsel will not take a fee from weekly wage loss checks, though it is not prohibited.
A successful claimant can recover reasonable fees and costs from the employer.
Loss of one eye receives 200 weeks of Total Disability benefits. Partial loss of vision receives a percentage of 200 weeks, consistent with percentage of loss of vision. Total loss of vision is considered permanent total disability, and weekly benefits are paid indefinitely.
Maximum of 175 weeks for a total loss in both ears. Partial loss of hearing in both ears receives a percentage of 175 weeks, consistent with percentage of loss of hearing. Total loss of hearing in one ear is 75 weeks, and same formula applies if there is a partial loss of hearing on only one ear.
1. Subrogation is available. Employer/carrier has standing to bring a direct action to recover subrogation lien if employee does not bring the action. Action must be filed within 2 years of date of injury.
2. Will be litigated in the civil courts, not before the Board.
Parties may represent themselves, though a corporation cannot and must have counsel. In order to represent a party before the Industrial Accident Board, the individual must be a licensed Delaware attorney.
a). Must be filed by all employers for any injury alleged, regardless of severity
b). NOT an admission of liability and cannot be used against employer as evidence
c). Must be filed by employer within 10 days – provided to carrier, bureau and claimant. Can be fined for failure to comply.
2. 15 Days to accept or deny from notice of injury.
3 Claim Denied - Notice of Denial must be provided to claimant within 15 days of knowledge of alleged injury. Must be in writing and explain basis for denial, and date notice of injury was received. There is no specific Denial form.
4. Accept Claim – Agreement as to Compensation. Must be signed by both parties and filed with Department.
Trial Level. Usually two members will hear case unless the parties consent to have the matter heard before a hearing officer. The Board is the Finder of Fact, and the evidentiary rules are relaxed, though still generally apply. Members are appointed by the Governor, and there are two state offices, one in Wilmington, and another in Milford. Hearing officers are appointed by the Department of Labor, and generally hear smaller disputes, motions, and pre-trials. Their powers and decisions however, when entered, hold the same weight as the Board’s.
Appeal Level. This is Delaware’s main trial court, for both criminal and civil actions over $50,000 in damages, but also serves as an appellate court for Workers’ Compensation. The Court will not overturn credibility determinations of the industrial accident board, but reviews for errors of law and abuse of discretion. Very few cases are overturned on appeal.
Highest State Court, may accept appeals from the Superior Court, but is not obligated to hear them.
1. Commutation – can resolve all, or a portion of a workers compensation claim.
2. Commutation documents are drafted by the attorneys, and signed by the parties. Documents are then submitted to the Board for approval. There is no hearing, generally speaking. Generally, the agreement will be approved by the Board, and then it is final.
3. Mediations – mediations are available and voluntarily, but are not court mandated. They are not binding, and are used somewhat less frequently than some jurisdictions.
1. Employer’s are required to carry Workers’ Compensation coverage, either through a carrier or as a certified self insured entity.
2 Uninsured employers are exposed to actions in civil court for damages.
3. There is no State Fund that will pay claims in a situation where an uninsured employer cannot make payment.