Delaware Workers’ Compensation FAQ

There are many formal requirements, legal issues, and factual issues that must be addressed when any worker files for workers’ compensation in Delaware. Call or contact Silverman, McDonald & Friedman today to discuss your right to workers’ compensation benefits. Our lawyers, located in Newark, Wilmington, and Seaford, will answer all your questions and guide you through the claims process.

Some of the more common questions we are asked can be found below, but don’t worry if you don’t see your question: you can always reach out to us and ask directly.

Am I covered for workers’ compensation benefits?

Employers having one or more employees in the State of Delaware are required to carry workers’ compensation insurance. Farm workers are not included under the workers’ comp statute. Employers are not permitted to charge employees any amount of the expense or premium of carrying this insurance.

In order to receive workers’ compensation benefits, an employee must meet certain entitlement requirements. These requirements are presented in Title 19 of the Delaware Code and administered by the Delaware Department of Labor, Division of Industrial Affairs Office of Workers’ Compensation. Independent contractors are not consider employees and are not covered under the statute. Maritime workers, seamen, federal employees, and railroad workers are covered under federal workers’ compensation law.

Can I collect worker’s compensation benefits in Delaware?

Employees in Delaware have the right to file for workers’ compensation benefits if they are involved in an accident or suffer an injury due to the work. Employees can also file for workers' compensation benefits if they suffer an occupational illness while working.

According to the Delaware Department of Labor, every employer who has one or more employees is required to carry workers’ compensation insurance. The employer pays the cost of the insurance. All workers except for farm workers are generally covered – and even farm employers may choose to provide coverage.

How do I qualify for workers’ compensation in Delaware?

In order to qualify for Delaware workers' compensation benefits you:

• Must be an employee. Independent contractors must file a personal injury claim. Employees have the right to seek workers' compensation benefits.
• Must be injured while you were working. Your injuries, such as head trauma, spinal cord damage, or broken bones, must have been caused while you are working. You may qualify for benefits if you worked away from the main worksite under certain conditions.
• Must give prompt notice of your injury or occupational illness. You have up to 90 days to inform your employer (in writing) of an injury, and up to six months (180 days) to give notice of an occupational illness. Generally, you must file your claim for benefits within two years from the date of the accident or one year from the date you obtained knowledge of your occupational illness.

What is an occupational illness?

Workers who become ill while performing their jobs may be entitled to file an occupational illness claim. The core requirements are:

• The worker must be an employee
• The illness or disease must be work-related
• The illness or disease cannot be the type of disease a worker would develop outside of work

A few common types of occupational illnesses include asbestosis, silicosis, repetitive stress injuries, and industrial deafness.

What must I do to secure workers’ compensation benefits?

The injured worker should inform his or her employer of the accident as soon as possible. In Delaware, if an employer is not informed of the workplace accident within 90 days, worker becomes ineligible for compensation until notice is provided. The worker may provide this notice to the personnel office, foreman, or any person with authority at the place of business.

Can an employer take action against me for filing a WC claim?

Under the Workers’ Compensation Statute, an employer is prohibited from discriminating against or discharging an employee because that employee:

• Has filed a claim or attempted to file claim for workers’ comp benefits, or
• Is soon to testify in a workers’ compensation case

Do I have to prove my employer was at fault?

No. Workers’ compensation has a few trade-offs. Employees who file for workers’ compensation instead of filing personal injury claims do not have to prove their employer or coworker caused the accident. You can even file for workers’ compensation benefits if you caused the accident. The bad news is that you don’t receive compensation for your pain and suffering. You also only receive a proportion (essentially 2/3 of your average weekly wages) instead of 100%.

Do I have to be treated by the company doctors?

Unlike most states, Delaware does not require that injured or ill employees select a doctor from a panel/list of doctors selected by the employer. You can select your own doctor. Our lawyers also help suggest doctors who are skilled at helping workers with a specific type of injury or illness.

The employer does have the right to request that you undergo an independent medical examination (IME) where the employer will choose the doctor. The purpose of the IME is normally to evaluate whether you can return to work.

How long does workers’ compensation last?

How long you receive workers’ compensation benefits depends on your injury. If you are disabled temporarily, you receive benefits until you go back to work. If you are disabled permanently, you can receive benefits indefinitely. If you are partially disabled, you still receive benefits but can do some light-duty tasks.

Can I be “kicked off” workers’ compensation?

While you are sick or injured, you cannot have your benefits taken away from you. However, sometimes the opinion of when you are qualified to go back to work differs between you, your physician and your employer’s workers’ compensation insurer. In these cases, it’s best to seek legal help.

Does my employer have to tell me that my benefits are ending?

Your employer has to notify you that your workers’ compensation benefits are ending, as in cases involving other continued health benefits, your employer has to notify you whether your other health benefits are being continued.  If your employer does not notify you, he or she is violating the law.

What medical benefits can injured or ill workers receive?

Employees who qualify for workers’ compensation are entitled to have their medical bills paid for as long as the medical care is helping to improve their condition or keep their condition stable. The duty to pay your medical bills continues even if you can return to work.

What are temporary disability benefits?

If you can’t work beyond the initial three days after the injury, you should receive temporary disability benefits starting on the fourth day. You can receive benefits for those first three days if it takes a week or more before you can return to work.

The amount of your wage loss benefit is 2/3 of your average weekly wages subject to certain caps.

If you can return to work at a reduced pay rate, your benefits are adjusted. You receive 2/3 of the difference between your pre-injury wages and your current wages. These partial disability benefits are paid for up to 300 weeks.

What are permanent disability benefits?

When you reach the point of maximum medical improvement (MMI), the time when additional medical care won’t improve your health, an evaluation is made about your injury. If you have a “scheduled” disability (the loss of arms, legs, hands, feet, fingers, toes, eyes, and ears), you receive permanent partial disability pay – according to the type of disability.  If you have a “nonscheduled” disability involving the heart, lungs, or back; you receive permanent partial disability pay – according to the type of disability.

Pay adjustments are made depending on the severity of the injury. We’ll explain how long you will receive these wage benefits.

What benefits are payable if an employee dies?

Under Del. Code 19 § 2330, death benefits are paid out differently based on how many dependents there are. A surviving spouse with no children will receive 66 and 2/3% of weekly wages (with a minimum of $15 a week), but the rules are different if there are children:

• To the child or children if there is no surviving spouse entitled to compensation, 662/3% 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;
• To the surviving spouse, if there is 1 child, 662/3% of wages;
• To the surviving spouse, if there are 2 children, 70% of wages;
• To the surviving spouse, if there are 3 children, 75% of wages;
• To the surviving spouse, if there are 4 or more children, 80% of wages;

The law also outlines benefits for other family members. These benefits are paid for at least 400 weeks, though there are extensions available for children:

Subject to § 2332 of this title, this compensation shall be paid during 400 weeks and in case of children entitled to compensation under this section, the compensation of each child shall continue after such period of 400 weeks until such child reaches the age of 18 years, or if enrolled as a full-time student in an accredited educational institution, until such child ceases to be so enrolled or reaches the age of 25 years, and in the case of a surviving spouse entitled to compensation under this section the compensation shall continue after such period of 400 weeks until the surviving spouse dies. Children are not entitled to compensation during the period that compensation is payable to their parent, except as provided in this section; provided, however, that the compensation for any child shall not be less than $10 per week unless the total maximum benefits are being paid.

Finally, the family is entitled to up to $3,500 in funeral costs.

Is my employer required to provide me with employment once I am ready to return to work?

The rehabilitation of employees to working status after a work injury is the ultimate goal of workers’ compensation programs. Although an employer is required to accommodate any restrictions your doctor imposes on your ability to work or perform specific work tasks, Delaware is an at-will employment state. This means your employer is not required under the law to provide you with employment.

Who should I inform about my return to work?

You, your attorney, or other representative should inform the Workers’ Compensation Board and the insurance company or whoever is issuing your benefits of your return to work. If and when your work status changes, you should also inform the Board and insurer.

If I have a disability, can an employer deny me employment? 

No. The Americans with Disabilities Act (ADA), which covers employers with 15 or more employees, forbids discrimination against qualified individuals with disabilities seeking employment. In fact, the employer may be required to provide a disabled employee reasonable accommodation to help him or her do the job.

Call the Delaware workers’ compensation lawyers at Silverman, McDonald & Friedman for answers to all your questions. We have more than 100 years of combined experience. We’ve obtained more than $60 million for our clients. You can schedule a free consultation by calling us or filling out our contact form. We meet clients at our offices in Wilmington, Newark, and Seaford, Delaware.

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• Direct Care Workers Rights to Workers’ Compensation