DI 52120: State Specific Workers' Compensation (WC) Procedures

Effective Dates: 03/05/2018 - Present

BASIC (09-08)

The Delaware Division of Industrial Affairs (DIA) Office of Workers' Compensation administers and enforces their WC laws. WC is provided through private carriers, but employers may self-insure.

A. Types of WC Payment

Delaware WC law is found in Title 19, Chapter 23 of the Delaware Code. All periodic WC is subject to state minimum and maximum amounts (see DI 52120.045H. Exhibits for a chart).

Temporary Total (TT): Weekly TT benefits are equal to 66 2/3 percent of the individual’s gross weekly wage received at the time of the injury.
Temporary Partial (TP): If the individual goes back to work part-time or at a lower rate than his pre-injury wage, he may be entitled to 2/3 of the difference in wages. UP TO 300 WKS OF TP WC MAY BE PAID.
Permanent Total (PT): For injuries resulting in total disability occurring after 07/01/1975, PT payments are equal to 66 2/3 percent of the individual’s gross weekly wage received at the time of the injury. They continue for the duration of the disability.
Workers’ Compensation Fund Payments: These are a type of Second injury Fund PT WC. This only applies to employers insured by insurance carriers, NOT self-insured employers. When a work injury causes a previously injured individual to be permanently disabled, the carrier’s liability is limited to payment for the second work injury. If the subsequent permanent injury in connection with a previous permanent injury results in total disability, the injured individual, while totally disabled, can be paid PT WC from a special state fund known as the "Workers' Compensation Fund" instead of receiving payments from the carrier. If a carrier stops making PT payments, verify that payments are not being made from this fund before removing offset.
Permanent Partial (PP):
- Permanent Impairment Benefits: When a job-related injury or illness results in a permanent partial disability, benefits are based upon a percentage of certain "scheduled" or "nonscheduled" losses. A "scheduled" loss is one involving arms, hands, fingers, legs, feet, toes, eyes, and ears. A "nonscheduled" loss is one involving the back, heart, lungs, etc.
- Disfigurement Benefits: An employee may file a petition for disfigurement one year post accident/surgery for any scar, burn, or amputation related to the work accident. Disfigurement WC is paid out in a number of weeks UP TO 150 WEEKS, depending on the severity of the scar.
Lump Sum commutation: Commutations are allowed; a 5 percent reduction in the amount due is usually imposed.
Lump Sum settlements: WC settlements are paid as LS awards. They must clearly state whether or not the settlement amount includes medical witness fees and other expenses.

B. Cost-of-living Adjustments (COLA)

Delaware does not provide COLAs on its WC.

C. Attorney fees

Attorney fees are limited by statute to 30 percent of the award or 10 times the State AWW as announced by the Secretary of Labor at the time of the award, whichever is less.

There is usually a fee involved for any medical testimony; this is payable by the individual.

D. Retirement insurance benefit (RIB) considerations

Delaware does not reduce its WC for receipt of RIB.

E. Time limits for filing claims

In case of failure to reach an agreement with the employer/carrier, an application must be filed with the Office of Workers' Compensation for a hearing before the Industrial Accident Board within the following time limits:

Accidental Injury - within 2 years of the date of accidental injury
Occupational disease - within 1 year of knowledge of the diagnosis of an occupational disease or an ionizing radiation injury.

F. Verifying WC payment

1. CARRIER

The DIA has a search engine to find WC carriers using employers’ names (see the link at the end of this section).

2. STATE

Delaware’s DIA will provide some proof, but only in response to fax requests. A specific three page form must be used when requesting the proof. You must print the “Request for Workers’ Compensation/Public Disability Benefit Information ” form because it cannot be completed online. In the TO: field, write "DE Division of Industrial Affairs, Office of Workers Compensation." Complete the beneficiary information on the first page, along with your contact information, and provide the Date of Injury (leave the rest of the form blank). Fax it to 302-736-9170 and allow 30 days for a response.

NOTE: If WC was appealed, contact both the State and the employer/carrier for payment information, as the information sent by either may be incomplete. When the employer applies for supersedes to change prior awarded WC, the DIA takes over the WC payments until a final decision is made. So, although the carrier may have stopped making payments, the injured worker may still be getting WC from the state.

G. Forms

The following forms may contain useful payment information.

Agreement Form – If the injured individual and his employer reach an agreement in regard to compensation, this memorandum of that agreement signed by both parties is filed with the State Dept of Labor. It becomes binding when it is approved by the state.
Receipt of Compensation Paid – When the WC agreed upon has been paid in full, this final receipt form is filed with the State Dept. of Labor. A final receipt signed by the injured individual will be accepted by the WC Board as sufficient evidence that his disability has ceased.
Petition for Commutation – Requests for commutation of compensation are favorably considered by the WC Board where such communication will be in the best interests of the injured individual. The Board may lay down guidelines and impose conditions as it deems advisable for the disbursement of all funds commuted.