Delaware Workers Compensation Law Basics 101

Workers Compensation Laws change frequently. This is only a summary; a complete copy of the most up-to-date version can be found at: www.WorkCompResearch.com an excellent service.

NOTE: State laws change frequently. Nothing in this article is meant as legal guidance.

For legal advice on a particular state’s most current law, please consult with you legal adviser.

In Delaware, every employer who has one or more employees, whether full time or part time, is required to carry workers compensation insurance. Agricultural employers, sole proprietors, and partners are exempt from complying with the workers compensation statutes, but these employers can elect to provide workers compensation insurance for their employees. Real estate brokers are not required to carry work comp coverage for the real estate agents, who are independent contractors.

As many as 8 executive officers who are also stockholders of a corporation can elect to be exempt from the workers compensation coverage requirements. Casual workers and domestic employees in a private home who earn less than $750 in any three month period are exempt from the coverage requirements. Workers compensation coverage for city, town, township, county, and state governments is not required, but can be provided if the governmental entity elects to do so.

Obtaining Coverage:

To obtain workers compensation coverage in Delaware, the employer has two options which are:

1. Purchasing a workers compensation insurance policy from a state approved insurance company
2. If an employer has over $5 million in assets, the employer can apply for self-insurance status with the Delaware Office of Workers Compensation. Self-insured employers must also obtain an insurance license from the Insurance Commissioner’s Office.

Claim Reporting:

The employer upon being notified of an injury to the employee, has 10 days to report the claim to the Office of Workers Compensation and to their insurance company or to their own claim’s office, if self-insured (death cases must be reported within 48 hours). The claim is reported on Delaware “First Report of Occupational Injury or Disease” form. All injury claims, regardless how minor, must be reported.

Medical Benefits:

The employee can select the medical provider of their choice. The State of Delaware provides certification of physicians, chiropractors, physical therapist, and hospitals to provide workers compensation medical services. If the medical provider has not been certified by the State of Delaware, authorization for each medical visit has to be obtained from the employer or the insurance company. If the employer/insurance company questions the medical treatment being provided to the employee by a certified provider, they have the right to obtain an independent medical examination of the employee to substantiate the injury claimed.

All medical treatment received from certified providers is paid for by the insurance company or the self-insured employer. As of 5-23-08, Delaware has adopted a medical fee schedule known as Workers Compensation Health Care Payment System for all medical treatment.

Temporary Total Disability Benefits:

The temporary total disability (TTD) benefits are calculated as two-thirds of the employee’s average weekly wage, based on the 26 weeks prior to the date of injury. The maximum amount of TTD benefits that can be paid weekly is established by the Secretary of Labor each June. The maximum amount is based on two-thirds of the state average weekly wage paid by all employers. The maximum TTD benefits per week for injuries as of June 22, 2010 is $609.82 per week. The state minimum weekly benefit is one third of the state maximum benefit amount, currently $203.27.

The first 3 days of disability (the waiting period) is not paid to the injured employee unless the employee is disabled for more than 7 days. TTD benefits can be paid for as long as the employee remains disabled. {Due to the fact that the employee can draw TTD benefits for as long as they are disabled, Delaware does not have a permanent total disability category in their indemnity benefits}.

Temporary Partial Disability Benefits:

In Delaware, if the employee is able to return to any type of work, but at a lesser rate of pay then the amount the employee was earning prior to the injury, the employee is entitled to temporary partial disability (TPD) benefits. The TPD benefits are paid at two-thirds of the difference between the pre-injury wage and the post-injury wage. The TPD benefits are paid for up to 300 weeks from the date of injury.

Permanent Partial Disability Benefits:

Delaware employees are paid permanent partial disability (PPD) benefits for any permanent disability suffered as the result of an on-the-job injury. The treating doctors normally use the Fifth Edition of the American Medical Association Guide to the Evaluation of Permanent Impairment.

Delaware uses a schedule of injuries for limbs, vision, and hearing. The loss of an arm or leg is worth 250 weeks of indemnity benefits (with a week calculated the same as TTD). The schedule decreases as the size of the limb decreases with a small toe being worth 15 weeks. For example, if the certified medical provider gives the employee a 20% disability rating to the arm, and the employee’s TTD rate was $600 per week, the employee will receive $30,000 ($600 X 250 X 20%).

A person with an injury to body as a whole is worth up to 300 weeks of indemnity benefits. For example, an employee with a 10% rating to the back would receive 30 weeks of benefits for the permanent partial disability.

Disfigurement Benefits:

The employee can make a claim for disfigurement benefits one year post accident or post surgery for any scar, burn, or amputation due an on-the-job injury. The disfigurement must be visible when the body is clothed normally. The disfigurement benefit is paid out in a number of weeks up to 150 weeks, depending on the severity.

Death Benefits:

The burial expenses in Delaware are covered for a work-related death up to $3,500. The

weekly death benefit payment depends on the number of employee dependents. A spouse only, or a child only, can receive a weekly benefit that is calculated the same as the TTD benefit, with the same maximum and minimum weekly benefit. When there is a dependent spouse plus child(ren), the weekly benefit is 80% of the employee’s wages, not to exceed 80% of the state average weekly wage. The spouse can receive death benefits for life unless the spouse remarries, then the spouse gets a two year lump sum. Children can receive benefits until age 18, or age 25 if a full time student.

Rehabilitation:

Delaware requires employers/insurers to furnish both physical and vocational rehabilitation for an injured worker. Delaware also allows the employers/insurers to stop indemnity benefits if the employee does not cooperate with the rehabilitation efforts. The vocational rehabilitation includes:

1. Vocational assessment
2. Employment planning
3. Counseling and guidance
4. Job placement

Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact:RShafer@ReduceYourWorkersComp.com or 860-553-6604.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

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