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.

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.

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.

Frequently Asked Questions about workers’ compensation benefits

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.

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 $50 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.