Resolving a Workers’ Compensation Dispute in Delaware
The workers’ compensation system is a no-fault system which allows employees who have been injured at work to receive compensation and medical expenses when they have sustained a workplace injury. For a clear cut workplace injury, a worker’s compensation claim is usually fairly routine. However, there may be times when an employer does not believe the employee’s claim that the injury happened at work or that the injuries are severe. There could be a dispute about whether the employee was actually a contractor rather than an employee, or the employer could disagree about the benefit amount to be paid to the employee for the time they miss due to their workplace injury.
There are several different types of disputes that can arise with regard to workers’ compensation benefits. If an employee does not agree with an action that their employer’s workers’ compensation insurer is taking, they can contact the insurer and ask them if they might reconsider. They may also contact the State of Delaware Department of Workers’ Compensation.
An employee can file a petition for compensation due within two years of the date of the accident. The employee is not required to hire an attorney, but they should be aware that their employer is required to have legal representation. The Department of Workers’ Compensation will provide a specialist who will guide the employee through the process of filing a petition. They will answer questions about the hearing process, but they do not offer legal advice. If the case ends up going to a hearing, the employee must make arrangements for a medical witness to be present, either in person of via deposition.
The Department of Workers’ Compensation will schedule a pre-trial hearing after the employee has filed a petition. In preparation for the pre-trial hearing, the employee must complete a pre-trial memorandum where they will outline the benefits they are seeking and any witnesses that they will be calling in the hearing. If the employee needs to subpoena the witnesses, they must provide the names and addresses of the witnesses in the pretrial memorandum. It is the employee’s responsibility to make arrangements for medical witnesses or any other witnesses prior to the hearing, and they may be required to pay a fee for medical witness testimony.
If the employee hires an attorney to represent them at the hearing, the attorney can prepare the pre-trial memorandum on behalf of the employee. After the pretrial memorandum is submitted, a hearing date will be assigned. Presiding over the hearing might be a hearing officer or a representative of the Industrial Accident Board. The hearing is a formal proceeding, and the burden of proof falls on whomever filed the petition.
Disputing the results of a utilization review
If the employer’s workers’ compensation insurer begins to question whether the employee’s medical treatment is reasonable or necessary, they can request a utilization review. An employer can also request a utilization review if they want to challenge compliance with treatment guidelines. The Department of Workers’ Compensation can review and even reverse the decision of a utilization review board. In order to appeal a UR decision, the party must file a petition within 45 days of receipt of the UR decision.
While an employee is not required to hire a lawyer, having an experienced workers’ compensation lawyer on their side will help improve their chances of getting a fair decision and it will ensure that their rights are protected.
A knowledgeable Delaware workers’ compensation attorney can guide you through the dispute or appeals process and make sure that you get the compensation you deserve. Visit Silverman, McDonald & Friedman in Newark, Seaford, or Wilmington or contact us today for a free consultation.
Attorney Jeffrey S. Friedman joined Silverman, McDonald & Friedman in 2001. He graduated from Widener University School of Law, and is admitted to practice law in Delaware and Pennsylvania, and in several Federal Circuit courts. He areas of concentration include auto accident and workers’ compensation cases. Read more about Attorney Friedman here.