The Law and You

Delaware Worker’s Compensation

Worker’s Compensation is a system of benefits all Employers are required by law to provide to Employees injured on the job. Employers must have workers’ compensation insurance to protect their Employees to pay these benefits. If they do not, you may elect to sue your Employer in the Superior Court and obtain all the benefits you would obtain in a regular personal injury suit, i.e., not only the schedule of benefits available under the Workers’ Compensation statute, but also pain and suffering. Additionally if you are injured due to the negligence of a third party, i.e., someone other than your Employer,  you may bring a lawsuit directly against that person or entity in Superior Court, although your Employer will have a lien against any settlement or judgement in that regard for some of the prior and perhaps future Worker’s Compensation benefits owed.  

The Industrial Accident Board of the State of Delaware resolves disputes between Employees and Employers regarding these benefits. The Statute of Limitations for bringing a claim before the Industrial Accident Board is two years. Payments under the Statute can extend it to five years from the date of last payment or the Statute may be tolled if the Workers’ Compensation Carrier does not inform you in writing of the date the Statute runs. Consult with an attorney as soon as possible after the injury and make sure to remind him or her of any pending Statute deadline or tell him or her about any hearing that is already scheduled.

Workers’ Compensation benefits include medical bills, total disability, partial disability, permanent impairment, disfigurement, mileage to doctors’ visits, and death benefits for the injured worker’s  family. Your total disability weekly wage benefit is two thirds of your average weekly wage as of the date of the injury, up to a statutory maximum based on the average rate of pay a worker receives in New Castle County that year. The maximum rate is calculated once a year. It is very important to see an attorney before agreeing what your average weekly wage is with your Employer or its Workers’ Compensation Carrier.  Don’t sign anything without consulting with Counsel.

Partial Disability can be paid up to 300 weeks if you return to work and make less than you made before due to any restrictions related to the  injury. Medical bills’ benefits are self explanatory, but expect the Worker’s Compensation Carrier to have you seen by their Defense Medical Doctor in order to limit payment.

Permanent Impairment is obtained by getting an opinion from your Doctor evaluating to the loss of use or function of any body part or system at issue. The Attorney then calculates the permanency demand by reviewing the Statute and your average weekly wage, either at the time of the injury or when an injury is deemed permanent, depending on whether you qualified for the maximum compensation rate when you were injured. The Insurance Carrier will get its Doctor to offer an opinion as well and a negotiated settlement or hearing will follow.

Disfigurement benefits are usually paid based on scaring, but can also be paid for things such as a limp. Determining the value of a disfigurement claim is usually based on the experience of your attorney with similar cases.  Death benefits are available to the deceased employee’s wife and children and as with all benefits should be discussed with an Attorney before entering to any Agreement under the Statute with the Employer or its Workers’ Compensation Carrier.

If you are injured on the job, it is essential you report the injury immediately to your supervisor  and go to the Emergency Room or your Doctor for treatment. You should also write down a description of the injury, how it happened and any witness names, addresses and phone numbers. Your Employer is required to complete a First Report of Injury by law and file it with the Industrial Accident Board.

You also need to get the Employer to provide the name, address and phone number of its Workers’ Compensation Carrier so the Attorney can communicate with them directly. If the Employer does not agree to enter into an Agreement regarding your injuries, we will file a Petition to Determine Compensation Due with the Industrial Accident Board. We will have to retain your treating doctor to provide disability and medical treatment opinions to offer to Board by deposition testimony at any hearing that ensues.

Generally Workers’ Compensation Claims can be settled  without the necessity of a hearing, but if the matter goes to trial you can apply to shift some of your attorney’s fees to the employer should  the benefits awarded amount to more that an offer of benefits made by the employer 30 days or more  before the hearing. If you win any benefits your medical witness and deposition expenses to present that testimony will also be reimbursed by the employer as well. Attorneys’ fees are contingent on recovery and run one third of the benefits agreed to or awarded.  However as stated the Board can order the Employer or it’s Carrier to contribute to any Attorney’s fee due.

David J. Lyons has more than 16 years of experience successfully representing countless injured employees before the Industrial Accident Board,  the Superior and Supreme Courts of Delaware.  During his first year in private practice he represented Employers and their Insurance Carriers giving him a perspective other injured worker’s attorneys can’t necessarily claim.  Representative cases have run the gamut from ones as complex as obtaining death benefits for a deceased worker’s family after he tragically committed suicide due to the severe pain from various failed back surgeries to the simple medical bill disputes.

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David Lyons was listed in The Best Lawyers in America, 2001-2003 for Consumer Legal matters which includes personal injury and worker’s compensation.