Subchapter III. Determination and Payment of Benefits; Procedure
TITLE 19
Labor
Workers' Compensation
CHAPTER 23. WORKERS' COMPENSATION
Subchapter III. Determination and Payment of Benefits; Procedure
§ 2341. Notice of injury; time of; and failure to give.
Unless the employer has actual knowledge of the occurrence of the injury or unless the employee, or someone on the employee's behalf, or some of the dependents, or someone on their behalf, gives notice thereof to the employer within 90 days after the accident, no compensation shall be due until such notice is given or knowledge obtained.
Code 1915, § 3193l; 29 Del. Laws, c. 233; Code 1935, § 6082; 19 Del. C. 1953, § 2341; 50 Del. Laws, c. 339, § 13; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;
§ 2342. Notice of occupational disease; time of; failure to give.
Unless the employer during the continuance of the employment has actual knowledge that the employee has contracted a compensable occupational disease or unless the employee, or someone in the employee's behalf, or some of the employee's dependents, or someone on their behalf, gives the employer written notice or claim that the employee has contracted one of the compensable occupational diseases, which notice to be effective shall be given within a period of 6 months after the date on which the employee first acquired such knowledge that the disability was, could have been caused or had resulted from the employee's employment, no compensation shall be payable on account of the death or disability by occupational disease of such employee.
Code 1915, § 3193rr; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 9; Code 1935, § 6114; 41 Del. Laws, c. 241, § 1; 19 Del. C. 1953, § 2342; 50 Del. Laws, c. 339, § 14; 52 Del. Laws, c. 101, § 1; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;
§ 2343. Physical examination of employee; refusal to submit; communications not privileged.
(a) After an injury, and during the period of resulting disability, the employee, if so requested by the employee's employer or ordered by the Board, shall submit the employee's own self for examination at reasonable times and places and as often as reasonably requested to a physician legally authorized to practice the physician's profession under the laws of such place, who shall be selected and paid by the employer. Such medical examination shall not be referred to as an "Independent Medical Examination" or "IME" in any proceeding or on any document relating to a matter under this chapter; nor shall any examination, required by the employer, by any other doctor, who is an employee of an insurance company, or who is paid by an insurance company, or who is under contract to an insurance company, be referred to as an "Independent Medical Examination" or "IME." If the employee requests, the employee shall be entitled to have a physician, qualified as specified in this section, of the employee's own selection, to be paid by the employee, present to participate in such examination. For all examinations after the first, the employer shall pay the reasonable traveling expenses and loss of wages incurred by the employee in order to submit to such examination. The Board may impose a fine not to exceed $500 for each use of the term "Independent Medical Exam" or "IME" in violation of this subsection.
(b) The refusal of the employee to submit to the examination required by subsection (a) of this section or the employee's obstruction of such examination shall deprive the employee of the right to compensation under this chapter during the continuance of such refusal or obstruction and the period of such refusal or obstruction shall be deducted from the period during which compensation would otherwise be payable.
(c) No fact communicated to or otherwise learned by any physician or surgeon who has attended or examined the employee or who has been present at any examination shall be privileged either in the hearings provided for in this chapter or in any action at law.
Code 1915, § 3193m; 29 Del. Laws, c. 233; Code 1935, § 6083; 19 Del. C. 1953, § 2343; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 206, § 2; 72 Del. Laws, c. 399, § 2.;
§ 2344. Agreements on compensation or benefits; filing and approval; conclusiveness.
(a) If the employer and the injured employee, or the employee's dependents in case of the employee's death, reach an agreement in regard to compensation or other benefits in accordance with this chapter, a memorandum of such agreement signed by the parties in interest shall be filed with the Department and, if approved by it, shall be final and binding unless modified as provided in § 2347 of this title. Such agreement shall be approved by the Department only when the terms thereof conform to this chapter. This section shall not apply to deductible clauses.
(b)(1) At the time of agreement, the employer shall obtain from the employee an agreement as to compensation, signed by the parties in interest, in such detail and form as the Department prescribes, stating the eligibility for workers' compensation benefits pursuant to §§ 2324 and 2325 of this title. The agreement as to compensation shall require the employee to indicate any change in employment status which may affect benefits pursuant to §§ 2324 and 2325 of this title. The agreement as to compensation shall include a clear recitation of the legal requirements for eligibility for benefits and shall require the claimant's acknowledgment of and agreement to abide by such requirements. This form, which shall bear a notarized signature of the employee or the signature of a witness, shall accompany the agreement and shall be filed with the Department of Labor for approval.
(2) For all payments of total or partial disability to claimants under this chapter, the insurance carrier or self-insured shall cause to be printed upon the reverse side of the check, above the endorsement, the following language: "Your acceptance of this check for total or partial disability is a representation by you that you are legally entitled to such payment and a false representation is punishable under federal and state laws." The negotiation of a check for total or partial disability by an attorney or an agent of the attorney on behalf of a client is a representation that the attorney has printed the language set forth in this subsection for printing on claimant checks on checks distributed by the attorney to the attorney's clients.
(3) Any person who makes a false statement or misrepresentation with regard to that person's eligibility for workers' compensation benefits, or any attorney who makes a false representation pursuant to subsection (b)(2) of this section is punishable pursuant to Chapter 24 of Title 18 and/or § 913 of Title 11.
(4) If the Department or Board has reason to believe that any person is committing or has committed an act of insurance fraud, the Department or Board shall notify the Fraud Prevention Bureau of the Delaware Insurance Department, which shall review the facts and circumstances of the alleged fraud in order to determine whether administrative, civil, or other proceedings are appropriate, in accordance with Chapter 24 of Title 18.
(5) The provisions of this section shall also apply to workers' compensation payments made pursuant to §§ 2327 and 2347 of this title.
Code 1915, § 3193n; 29 Del. Laws, c. 233; Code 1935, § 6084; 19 Del. C. 1953, § 2344; 63 Del. Laws, c. 250, § 3; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 84, §§ 3, 13; 76 Del. Laws, c. 1, § 16.;
§ 2345. Hearing upon disagreement on amount of compensation or benefits.
If the employer and employee, or the employee's dependents in the case of the employee's death, fail to reach agreement in regard to compensation under this chapter, or if after they reach such an agreement the Board shall refuse to approve the same, either party may notify the Department of the facts and the Department shall thereupon notice the time and place of hearing which shall be served on all parties in interest personally or by certified mail. The Board or a hearing officer with consent of the parties shall hear and determine the matter in accordance with the facts and the law and state its conclusions of fact and rulings of law.
Code 1915, §§ 3193o, 3193tt; 29 Del. Laws, c. 233; 32 Del. Laws, c. 186, § 4; Code 1935, §§ 6085, 6116; 19 Del. C. 1953, § 2345; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 84, § 14; 71 Del. Laws, c. 422, § 2.;
§ 2346. Hearing upon disagreement on charges for medical and other services and benefits.
If any person charged with the payment of medical and other services and the provider to whom said payment is due fail to reach an agreement in regard to such charges, any interested party may notify the Department of the facts. The Department shall thereupon notice the time and place of hearing sent by certified mail to all parties in interest. The Board shall hear and determine the matter. No party to the proceedings shall have any liability for the payment of charges in excess of the amount deemed reasonable and necessary; provided, that the provider is subject to the jurisdiction of the Board and made a party to the proceedings. As provided in § 2320(7) of this title, the Board may, in any case, appoint a disinterested and duly-qualified physician to make any necessary medical examination of the employee and testify in respect thereto. Such medical examination shall not be referred to as an "Independent Medical Examination" or "IME" in any proceeding or on any document relating to a matter under this chapter; nor shall any examination, required by the employer, by any other doctor, who is an employee of an insurance company, or who is paid by an insurance company, or who is under contract to an insurance company, be referred to as an "Independent Medical Examination" or "IME." The Board may impose a fine not to exceed $500 for each use of the term "Independent Medical Exam" or "IME" in violation of this section.
Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; Code 1935, § 6078; 19 Del. C. 1953, § 2346; 50 Del. Laws, c. 267, § 4; 70 Del. Laws, c. 534, § 1; 71 Del. Laws, c. 84, § 14; 71 Del. Laws, c. 422, § 2; 72 Del. Laws, c. 206, § 3; 72 Del. Laws, c. 399, § 3.;
§ 2347. Review by Board of agreements or awards; grounds; modification of award.
On the application of any party in interest on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred or that the status of the dependent has changed, the Board may at any time, but not oftener than once in 6 months, review any agreement or award.
On such review, the Board may make an award ending, diminishing, increasing or renewing the compensation previously agreed upon or awarded, and designating the persons entitled thereto, subject to this chapter, and shall state its conclusions of facts and rulings of law. The Department shall immediately send to the parties a copy of the award by personal delivery or by certified mail.
This section shall not apply to a commutation of payments under § 2358 of this title.
Compensation payable to an employee, under this chapter, shall not terminate until and unless the Board enters an award ending the payment of compensation after a hearing upon review of an agreement or award, provided that no petition for review, hearing or an order by the Board shall be necessary to terminate compensation where the parties to an award or an agreement consent to the termination. No petition for review shall be accepted by the Department unless it is accompanied by proof that a copy of the petition for review has been served by certified mail upon the other party to the agreement or award. Within 5 days after the filing of a petition for review, the Department shall notify each party concerned of the time, date and place scheduled for the hearing upon the petition.
Compensation shall be paid by the Department to the employee after the filing of the employer's petition to review from the Workers' Compensation Fund until the parties to an award or agreement consent to the termination or until the Board enters an order upon the employer's petition to review. After the parties to an award or agreement consent to the reinstatement of compensation or, after the employer withdraws its petition, or, if the Industrial Accident Board orders the employer's petition dismissed, the employer shall repay to the Workers' Compensation Fund the amount paid out by the Department. A petition to review must be withdrawn whenever the parties to an agreement settle the claim without a hearing before the Board or whenever an employee consents to a termination after a petition to review has been filed with the Board.
The first 2 sentences of the 5th paragraph of this section shall apply only to employers insured by insurance carriers. Nor shall they apply to self-insured employers who shall be responsible for payment of their own claims under this section.
Upon any order imposed by the Insurance Commissioner under § 2411(e) of Title 18 requiring payment of restitution following a finding of insurance fraud, and after all rights of appeal from said order have been waived or exhausted, the Board shall, upon motion of the party to whom restitution was ordered and after hearing and opportunity to be heard, allow a credit against benefits payable under §§ 2324, 2325 and/or 2326 of this title, for any restitution ordered by the Insurance Commissioner remaining unpaid. The Board shall also review orders establishing such credits upon motion based upon any change in circumstances that may warrant modification or rescission of a prior order.
Code 1915, § 3193q; 29 Del. Laws, c. 233; Code 1935, § 6086; 19 Del. C. 1953, § 2347; 50 Del. Laws, c. 66, § 1; 58 Del. Laws, c. 529, § 1; 59 Del. Laws, c. 454, § 6; 71 Del. Laws, c. 84, §§ 9, 15; 71 Del. Laws, c. 422, § 2; 76 Del. Laws, c. 1, § 17.;
§ 2348. Hearings; notice of awards; evidence.
(a) In all hearings before the Board, the Board shall make such inquiries and investigations as it deems necessary. Unless otherwise stipulated by counsel and approved by the Department, the hearings shall be held in the Division of Industrial Affairs office nearest the site where the injury occurred or, if the accident occurred out of the State, in any county designated by the Department as convenient for the parties.
(b) In a controversy as to the responsibility of an employer or the employer's insurance carrier for the payment of compensation and other benefits under Part II of this title, any party in interest may petition the Board in writing for a hearing and award. The petition shall be sent to the Department's offices in Wilmington and shall set forth the reason for requesting the hearing and questions in dispute which the applicant expects to be resolved.
(c) The Department shall schedule a hearing by fixing its time and place, subject to review by the Board upon written objection by a party. The notice shall be given in hand or by certified mail, return receipt requested. Hearings pursuant to §§ 2324, 2325 and 2347 of this title shall be heard as expeditiously as practicable, but, absent compliance with subsection (h) of this section, in no case more than 120 days from the date of the notice of pre-trial conference to be issued by the Department. Unless excused for good cause shown, failure of any or all parties in interest to appear at a duly scheduled hearing or to petition for a continuance shall bar such parties from any further action concerning an adverse decision, a decision by default or a dismissal of a petition for hearing and award.
(d) The Superior Court shall, in accordance with such rules as the Court may make, provide for the obtaining of evidence outside of the State to be used in hearings before the Board. Subject to the approval of a hearing officer, the parties in interest in any cause may agree upon different methods of taking such evidence.
(e) Subpoenas provided for in accordance with this chapter shall be effective throughout the State.
(f) Whenever a cause shall be remanded to the Board for a rehearing, all evidence theretofore taken before the Board in a previous hearing or hearings shall become part of the evidence in the hearing upon remand.
(g) In those instances where an expedited hearing is requested, the petition for hearing shall set forth the facts in sufficient detail to support the request for an expedited hearing. If such a request is uncontested, the request shall be granted by the Department. If such a request is contested, the Board shall determine the matter.
(h) Requests for continuance may be granted only upon good cause shown by the party requesting the continuance. Good cause shall be set forth in the Rules of Procedure of the Industrial Accident Board. A request for continuance may be granted or denied by the Department. If a party objects to the Department's decision or another party's motion, it may, by motion, seek Board review and the Board shall determine the matter.
(1) With respect to any extension of the 120-day hearing deadline established by subsection (c) of this section, a written motion requesting the continuance shall be filed setting forth the basis for a good cause continuance pursuant to the Rules of Procedure of the Industrial Accident Board which, in the movant's opinion, justify such relief. With respect to such an extension request, the Board shall issue a written order specifying that good cause for such an extension exists under a specific Rule of Procedure of the Industrial Accident Board.
(2) With respect to any request for an extension of a hearing beyond 180 days from the date of the petition, the party seeking the continuance must demonstrate that good cause for such an extension exists under a specific rule of the Industrial Accident Board and extraordinary circumstances exist which warrant the award of such continuance in the interests of justice. If such extension is to be granted, the Board's order shall be accompanied by the following:
a. A specific finding stating that good cause for such an extension exists under a Rule of Procedure of the Industrial Accident Board and stating the reasons why a continuance, rather than the use of other case management measures (including, but not limited to, precluding the presentation of certain witnesses or other evidence by the party responsible for the delay), is necessary in the interests of justice;
b. In any instance where such a continuance is sought by the petitioner, a specific finding that the petitioner has demonstrated that the petitioner has prosecuted its petition with due diligence; and
c. With respect to any party whose lack of diligence caused the need for a continuance, an order of such remedial action as is consistent with Rules of Procedure of the Board and is just under the circumstances.
Where a petitioner's or respondent's lack of diligence has caused the motion for a continuance, to remedy such lack of diligence and to ensure a speedy, efficient and just resolution of the matter, the Board shall consider dismissing the petition or provisionally awarding the relief sought by the petition.
(i) At such hearing, it shall be incumbent upon all parties to present all available evidence and the Board shall give full consideration to all evidence presented. In addition, the Board may examine all witnesses. If either party or the Board seeks to utilize the medical testimony of an expert, it may do so; provided, that prompt and adequate notice to the opposing party or parties is given. Medical testimony of an expert may be presented by: deposition; by live testimony at the hearing; by telephonic testimony at the hearing; or by videotape.
(j) The Board may recess the hearing to a date certain and direct the parties, or any of them, to provide such further information as may be necessary to decide the matter.
(k) No later than 14 days after a hearing, the Board shall render a written decision that succinctly and clearly states its findings of fact and conclusions of law. To that end, where appropriate, the Board may render a decision at the hearing and read such decision into the record for its incorporation in the hearing transcript. Each Board decision shall be filed among the Board's records and a copy thereof shall be served personally on or sent by certified mail to each of the parties in interest or to the attorneys representing the parties, if such parties are represented by counsel. In any instance where a decision cannot be reached within 14 days, the Board shall provide the parties with a written estimate of when the decision will be rendered. Such additional time shall not exceed an additional 14 days.
Code 1915, § 3193q; 29 Del. Laws, c. 233; 32 Del. Laws, c. 186, § 3; Code 1935, § 6087; 19 Del. C. 1953, § 2348; 52 Del. Laws, c. 101, § 2; 63 Del. Laws, c. 418, § 1; 69 Del. Laws, c. 382, § 1; 71 Del. Laws, c. 84, § 16.;
§ 2348A. Mediation.
(a) At any time prior to 30 days after the pretrial conference, either party may request mediation. The mediator shall be selected from a list of 3 hearing officers provided by the Department of Labor, and each party may strike 1 hearing officer from the list of potential mediators. The hearing officer serving as the mediator for a claim shall not be the hearing officer assigned to a later hearing on the claim mediated. Mediation shall be conducted within 30 days of the request.
(b) Any mediation under this section shall be nonbinding. No transcription or other verbatim record of the proceedings shall be kept, and no testimonial evidence shall be given. Medical records or other documentary evidence may be considered, at the mediator's discretion, if it will assist the mediation process.
(c) If the parties involved in the mediation conference reach a settlement as to all or any part of the then-pending issues, the agreement shall be reduced to writing and signed by the parties, the parties' counsel, and the mediator. A signed mediation agreement shall be binding on the parties thereto as to those issues on which there is agreement, except that any such agreement shall be subject to review in accordance with § 2347 of this title.
(d) In any hearing before the Board, no evidence shall be permitted regarding the mediation, including evidence regarding any statements or positions taken by any party in the context of the mediation. The Board may admit into evidence any signed mediation agreement, if relevant to any pending issue.
76 Del. Laws, c. 1, § 18.;
§ 2349. Finality of awards; appeals; limitation period.
An award of the Board, in the absence of fraud, shall be final and conclusive between the parties, except as provided in § 2347 of this title, unless within 30 days of the day the notice of the award was mailed to the parties either party appeals to the Superior Court for the county in which the injury occurred or, if the injury occurred out of the State, to the Superior Court in and for the county in which the hearing was had. Neither the Board nor any member of the Board shall be named as a party to the appeal. Whenever an award shall become final and conclusive pursuant to this section, the prevailing party, at any time after the running of all appeal periods, may, if a proper appeal has not been filed, file with the Prothonotary's office, for the county having jurisdiction over the matter, the amount of the award and the date of the award. From the time of such filing, the amount set forth in the award shall thereupon be and constitute a judgment of record in such court with like force and effect as any other judgment of the court, except that the renewal provisions of § 4711 of Title 10 shall not be applicable, and a judgment obtained under this section shall automatically continue for a period of 20 years from the date of the award. The Prothonotary shall enter all such certificates in the regular judgment docket and index them as soon as they are filed by the prevailing party.
Code 1915, § 3193r; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 5; Code 1935, § 6088; 19 Del. C. 1953, § 2349; 52 Del. Laws, c. 101, § 3; 71 Del. Laws, c. 413, § 1; 72 Del. Laws, c. 139, §§ 1, 2; 73 Del. Laws, c. 49, §§ 1, 2.;
§ 2350. Jurisdiction, procedure and decision on appeal; review by Board; costs and security.
(a) The Superior Court shall have jurisdiction to hear and determine all appeals taken pursuant to this chapter. The Court may by proper rules prescribe the procedure to be followed in the case of such appeals. The Court shall fix a time for such hearings at the pending or next term of the Court after the date of such appeal and may extend the time for adequate cause shown.
(b) In case of every appeal to the Superior Court the cause shall be determined by the Court from the record, which shall include a typewritten copy of the evidence and the finding and award of the Board, without the aid of a jury, and the Court may reverse, affirm or modify the award of the Board or remand the cause to the Board for a rehearing. In case any cause shall be remanded to the Board for a rehearing, the procedure and the rights of all parties to such cause shall be the same as in the case of the original hearing before the Board.
(c) The decision of the Court shall be in writing and shall show conformity to this chapter. It shall be filed with the Prothonotary of the Court and such Prothonotary shall file a certified copy thereof with the Board. When any such certified copy of the decision of the Court shall be filed as aforesaid, it shall be subject to § 2347 of this title, and if the Board shall, in accordance with such section, end, diminish, increase or renew the compensation, there shall be the same right of appeal as is provided in § 2349 of this title.
(d) The Prothonotary shall not require a deposit or security to cover costs incident to the taking of any appeal under this chapter. Costs may be awarded by the Court at its discretion, and when so awarded, the same costs shall be allowed, taxed and collected as are allowed, taxed and collected for like services in the Court.
(e) If the decision of the Board is affirmed by an appellate court, the employee shall be entitled to all compensation plus interest at the legal rate from the time of the award by the Board.
(f) The Superior Court may at its discretion allow a reasonable fee to claimant's attorney for services on an appeal from the Board to the Superior Court and from the Superior Court to the Supreme Court where the claimant's position in the hearing before the Board is affirmed on appeal. Such fee shall be taxed in the costs and become a part of the final judgment in the cause and may be recovered against the employer and the employer's insurance carrier as provided in this subchapter.
Code 1915, § 3193r; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 5; Code 1935, § 6088; 19 Del. C. 1953, § 2350; 50 Del. Laws, c. 339, § 15; 52 Del. Laws, c. 101, § 4; 69 Del. Laws, c. 218, § 1; 70 Del. Laws, c. 172, § 4.;
§ 2351. Physical examination of claimant on appeal; other additional evidence.
(a) Upon the hearing of any appeal, the Court may appoint 1 or more impartial physicians or surgeons to examine the injuries of the claimant and to report thereon to the Court. The Court may fix the compensation of such physicians or surgeons, and tax such compensation as a part of the costs of the proceedings. The report shall not be conclusive of the facts therein stated but shall be advisory only.
(b) The Court may, with or without notice to either party, cause testimony to be taken or provide for an inspection of the premises where the injury occurred and may require the time books or the payroll of the employer to be examined.
Code 1915, §§ 3193r, 3193w; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 5; Code 1935, §§ 6088, 6093; 19 Del. C. 1953, § 2351.;
§ 2352. Persons entitled to institute proceedings for minors; notice to.
Proceedings for compensation may be instituted by the surviving parent, guardian or next friend in the case of minors claiming to be entitled to compensation, and all notices thereafter shall be given in the manner provided in this chapter to such parent, guardian or next friend.
Code 1915, § 3193tt; 29 Del. Laws, c. 233; 32 Del. Laws, c. 186, § 4; Code 1935, § 6116; 19 Del. C. 1953, § 2352.;
§ 2353. Forfeiture or suspension of right to compensation.
(a) If the employee refuses reasonable surgical, medical and hospital services, medicines and supplies tendered to the employee by the claimant's employer, the claimant shall forfeit all right to compensation for any injury or any increase in the claimant's incapacity shown to have resulted from such refusal. Reasonable medical services shall include, if the Board so finds, vocational rehabilitation services offered by any public or private agency.
Where rehabilitation services require residence at or near the public or private agency away from the employee's customary residence, reasonable costs of board, lodging and travel shall be paid for by the employer. Refusal to accept rehabilitation services pursuant to order of the Board shall result in a loss of compensation for each week of the period of refusal.
(b) If any employee be injured as a result of the employee's own intoxication, because of the employee's deliberate and reckless indifference to danger, because of the employee's wilful intention to bring about the injury or death of the employee or of another, because of the employee's wilful failure or refusal to use a reasonable safety appliance provided for the employee or to perform a duty required by statute, the employee shall not be entitled to recover damages in an action at law or to compensation or medical, dental, optometric, chiropractic or hospital service under the compensatory provisions of this chapter. The burden of proof under this subsection shall be on the employer.
(c) If an injured employee refuses employment procured for the employee and suitable to the employee's capacity, the employee shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Board such refusal was justifiable.
(d) If an employee is receiving benefits, or claims to be eligible for benefits, for total or partial disability under § 2324 or § 2325 of this title, those benefits may be suspended by agreement or order of the Board under the following conditions and for only so long as those conditions apply:
(1) While an employee is incarcerated by the State of Delaware, after an adjudication of guilt;
(2) While an employee is incarcerated by another state or other government subdivision of another state authorized to operate a penal facility, after an adjudication of guilt; or
(3) While an employee is incarcerated by the federal government, after an adjudication of guilt.
(e) If the parties do not agree that a suspension condition applies, the party attempting to cease or begin benefits may file a petition for the matter to be adjudicated. Certified proof of conviction and incarceration as specified above from the responsible government entity, filed with the Board upon opposition to suspension of benefits, shall create a rebuttable presumption that benefits may be suspended unless countered by the filing with the Board of certified proof of release, parole, commutation of sentence or pardon. Work release or similar conditional release will not counter the presumption. The employer may suspend benefits until the hearing once the rebuttable presumption has been raised until countered or the Board adjudicates the matter.
(f) The employee shall give notice to the employer or insurance carrier when a period of suspension agreed to or ordered by the Board ends. At that time the employee shall provide medical certification that the disability continues. If the parties cannot agree to a specific date on which the suspension shall be lifted and benefits are to commence or recommence, either party may file a petition to have the Board adjudicate the issue.
(g) This section shall not prohibit an employee from collecting any other benefits due for other periods or types of benefits. An employee may collect from the Board Fund during a period for which a petition is pending under this section to stop paying benefits unless the above described rebuttable presumption is raised.
Code 1915, §§ 3193h, 3193jj, 3193nn; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 1; 32 Del. Laws, c. 186, § 1; Code 1935, §§ 6078, 6106, 6110; 19 Del. C. 1953, § 2353; 50 Del. Laws, c. 267, § 5; 58 Del. Laws, c. 529, § 2; 59 Del. Laws, c. 454, § 7; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 1, § 19.;
§ 2354. Contribution by 2 or more employers.
(a) Whenever any employee, for whose injury or death compensation is payable under this chapter, at the time of the injury is in the joint service of 2 or more employers subject to this chapter, such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employee, regardless of for whom such employee was actually working at the time of the injury.
(b) Whenever a petition to determine benefits is pending and 1 of 2 or more employers or 2 or more insurance carriers shall be liable for undisputed benefits arising under § 2322 or § 2324 of this title, the employer or insurance carrier which paid benefits for the 1st occurrence shall pay all interim benefits arising under § 2322 of this title and temporary total disability benefits at the lower rate, which may be applicable under § 2324 of this title, without a hearing. When the claim is resolved thereafter by agreement or by award after a hearing, the responsible party shall indemnify the payor for benefits paid.
Code 1915, § 3193kk; 29 Del. Laws, c. 233; Code 1935, § 6107; 19 Del. C. 1953, § 2354; 70 Del. Laws, c. 542, §§ 1, 2.;
§ 2355. Assignment of compensation prohibited; exemption from creditors' claims; child support exception.
Except for attachments pursuant to child support orders entered under Chapters 4, 5 or 6 of Title 13, claims or payment for compensation due or to become due under this chapter shall not be assignable and all compensation and claims therefor shall be exempt from all claims of creditors.
Code 1915, § 3193mm; 29 Del. Laws, c. 233; Code 1935, § 6109; 19 Del. C. 1953, § 2355; 70 Del. Laws, c. 288, § 7.;
§ 2356. Priority of compensation claims.
The right of compensation granted by this chapter shall have the same preference or priority for the whole amount thereof against the assets of the employer allowed by law for unpaid wages for labor.
Code 1915, § 3193mm; 29 Del. Laws, c. 233; Code 1935, § 6109; 19 Del. C. 1953, § 2356.;
§ 2357. Collection of payments in default.
If default is made by the employer for 30 days after demand in the payment of any amount due under this chapter, the amount may be recovered in the same manner as claims for wages are collectible.
Code 1915, § 3193mm; 29 Del. Laws, c. 233; Code 1935, § 6109; 19 Del. C. 1953, § 2357.;
§ 2358. Commutation of compensation.
(a) Upon application of either party, and on due notice to the other, the compensation contemplated by this chapter may be commuted by the Board at its present value when discounted at 5% interest, with annual rests, disregarding, except in commuting payments due under § 2324 of this title, the probability of the beneficiary's death. Such commutation may be allowed if it appears that it will be for the best interest of the employee or the dependents of the deceased employee, or that it will avoid undue expense or hardship to either party, or that such employee or dependent has removed or is about to remove from the United States or that the employer has sold or otherwise disposed of the whole or the greater part of the injured employee's or the dependents of a deceased employee's business or assets. It shall not be allowed for the purpose of enabling the injured employee or the dependents of a deceased employee to satisfy a debt created before the accident, other than a mortgage upon the injured employee's or the dependents of a deceased employee's or their home or household furniture.
(b) The Board shall not approve a proposed commutation under this section without considering information regarding the amount of attorneys' fees and costs, if any, employee will pay in connection with the proposed commutation. The Board shall not separately approve the attorneys' fees to be paid by the employee, but shall approve or deny the proposed commutation based upon the best interests of the employee in light of the employee's net recovery after fees and expenses are deducted.
Code 1915, § 3193t; 29 Del. Laws, c. 233; Code 1935, § 6090; 19 Del. C. 1953, § 2358; 50 Del. Laws, c. 339, § 16; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 1, § 20.;
§ 2359. Payment of award to bank in trust for employee or dependents.
(a) At any time after the entry of the award or after the filing of the agreement for compensation, a sum equal to all future installments of compensation may by leave of the Board where death or the nature of the injury renders the amount of future payments certain be paid by the employer to any savings bank or trust company approved by the Board which is chartered and doing business in this State and has an office in the county in which the award was entered. Such sum, together with all interest arising from the investment thereof, shall thereafter be held in trust for the employee, or the employee's dependents, who shall have no further recourse against the employer.
(b) Payment by the employer pursuant to subsection (a) of this section shall operate as a satisfaction of the award or agreement as to the employer.
(c) Payments from the fund established pursuant to subsection (a) of this section shall be made by the trustee on orders from the Board in the same amounts and at the same periods as are required of the employer by this chapter. If, after liability has ceased, any balance of the fund remains, it shall be returned to the employer who deposited it, on a signed order of the Board.
Code 1915, § 3193u; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 7; Code 1935, § 6091; 19 Del. C. 1953, § 2359; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;
§ 2360. Installment payments of compensation.
Except as otherwise provided in this chapter, all compensation, except benefits pursuant to § 2326 of this title, payable under the compensatory provisions of this chapter shall be payable in periodical installments, as the wages of the employee were payable before the accident. The Board may, however, having regard to the welfare of the employee and the convenience of the employer, authorize the monthly or quarterly payment of compensation, instead of weekly.
Code 1915, § 3193hh; 29 Del. Laws, c. 233; Code 1935, § 6104; 19 Del. C. 1953, § 2360; 75 Del. Laws, c. 34, § 1.;
§ 2361. Limitation periods for claims.
(a) In case of personal injury, all claims for compensation shall be forever barred unless, within 2 years after the accident, the parties have agreed upon the compensation as provided in § 2344 of this title or unless, within 2 years after the accident, 1 or more of the interested parties have appealed to the Board as provided in § 2345 of this title. In cases of death, all claims for compensation shall be forever barred unless, within 2 years after the death, the parties have agreed upon the compensation as provided in § 2344 of this title or unless, within 2 years after the death, 1 or more of the interested parties have appealed to the Board as provided in § 2345 of this title.
(b) Where payments of compensation have been made in any case under an agreement approved by the Board or by an award of the Board, no statute of limitation shall take effect until the expiration of 5 years from the time of the making of the last payment for which a proper receipt has been filed with the Department.
(c) All claims for compensation for compensable occupational disease or for an ionizing radiation injury shall be forever barred unless a petition is filed in duplicate with the Department within 1 year after the date on which the employee first acquired such knowledge that the disability was or could have been caused or had resulted from employment. In case of death, all claims for compensation for compensable occupational disease or for an ionizing radiation injury shall be forever barred unless a petition is filed in duplicate with the Department within 1 year after the date on which the person or persons entitled to file such claims know, or by the exercise of reasonable diligence should know, the possible relationship of the death to the employment.
Code 1915, §§ 3193v, 3193rr; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 9; 35 Del. Laws, c. 192, § 2; Code 1935, §§ 6114, 6092; 41 Del. Laws, c. 241, § 1; 19 Del. C. 1953, § 2361; 50 Del. Laws, c. 339, §§ 17-19; 59 Del. Laws, c. 454, § 8; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 84, §§ 17, 18.;
§ 2362. Notice of denial of liability; penalty for delay in payment of compensation.
(a) An employer or its insurance carrier shall within 15 days after receipt of knowledge of a work-related injury notify the Department and the claimant in writing of: the date the notice of the claimant's alleged industrial accident was received; whether the claim is accepted or denied; if denied, the reason for the denial; or if it cannot accept or deny the claim, the reasons therefor and approximately when a determination will be made.
(b) All medical expenses shall be paid within 30 days after bills and documentation for said expenses are received by the employer or its insurance carrier for payment, unless the carrier or self-insured employer notifies claimant or the claimant's attorney in writing that said expenses are contested or that further verification is required.
(c) In the event that the parties reach a written agreement as to compensation due to claimant, payment of compensation shall commence within 14 days of the date of that agreement. The parties must also file the original agreement, and if applicable, a receipt with the Department of Labor within 14 days of the date of the agreement.
(d) Following an award by the Board, the first payment of compensation shall be paid by the employer or its insurance carrier no later than 14 days after the award becomes final and binding pursuant to § 2349 of this title.
(e) If, following a hearing, the Board determines that the employer or its insurance carrier failed in its responsibilities under subsections (a), (b), (c) or (d) of this section, it shall assess a fine no less than $500 and no more than $2,500. The fine shall be payable to the Workers' Compensation Fund.
Code 1915, § 3193j; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; Code 1935, § 6080; 47 Del. Laws, c. 160, § 4; 19 Del. C. 1953, § 2362; 50 Del. Laws, c. 339, § 20; 58 Del. Laws, c. 531, § 4; 70 Del. Laws, c. 95, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 84, § 9; 73 Del. Laws, c. 196, § 1.;
§ 2363. Third person liable for injury; right of employee to sue and seek compensation; right of employer and insurer to enforce liability; notice of action; settlement and release of claim and effect thereof; amount of recovery; reimbursement of employer or insurer; expenses of recovery; apportionment; compensation benefits.
(a) Where the injury for which compensation is payable under this chapter was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or the employee's dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with this section. If the injured employee or the employee's dependents or personal representative does not commence such action within 260 days after the occurrence of the personal injury, then the employer or its compensation insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of suit by any party under this section, such party shall notify, by certified mail at their last known address, the Industrial Accident Board, the injured employee or, in the event of the employee's death, the employee's known dependents or personal representative or the employee's known next of kin, the employee's employer and the workers' compensation insurance carrier. Any party in interest shall have a right to join in said suit.
(b) Prior to the entry of judgment, either the employer or the employer's insurance carrier or the employee or the employee's personal representative may settle their claims as their interest shall appear and may execute releases therefor.
(c) Such settlement and release by the employee shall not be a bar to action by the employer or its compensation insurance carrier to proceed against said third party for any interest or claim it might have, and such settlement and release by the employer or its compensation insurance carrier shall not be a bar to action by the employee to proceed against said third party for any interest or claim the employee may have.
(d) In the event the injured employee or the employee's dependents or personal representative shall settle their claim for injury or death, or commence proceedings thereon against the third party before the payment of workers' compensation, such recovery or commencement of proceedings shall not act as an election of remedies and any moneys so recovered shall be applied as provided in this section.
(e) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or the employee's dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workers' compensation insurance carrier for any amounts paid or payable under the Workers' Compensation Act to date of recovery, and the balance shall forthwith be paid to the employee or the employee's dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits, except that for items of expense which are precluded from being introduced into evidence at trial by § 2118 of Title 21, reimbursement shall be had only from the third party liability insurer and shall be limited to the maximum amounts of the third party's liability insurance coverage available for the injured party, after the injured party's claim has been settled or otherwise resolved.
(f) Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting such recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. The expenses of recovery above mentioned shall be apportioned by the court between the parties as their interests appear at the time of said recovery.
Code 1915, § 3193ll; 29 Del. Laws, c. 233; Code 1935, § 6108; 19 Del. C. 1953, § 2363; 50 Del. Laws, c. 339, § 21; 50 Del. Laws, c. 465, § 3; 69 Del. Laws, c. 116, § 1; 70 Del. Laws, c. 172, §§ 3, 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 422, § 2.;
§ 2364. [Reserved.]
§ 2365. Employee entitled to exercise rights; relief to be granted.
It shall be unlawful for any employer or the duly authorized agent of any employer to discharge or to retaliate or discriminate in any manner against an employee as to the employee's employment because such employee has claimed or attempted to claim workers' compensation benefits from such employer, because such employee reported an employer's noncompliance with a provision of this chapter, or because such employee has testified or is about to testify in any proceeding under this chapter. Any claim of an employee alleging such action by an employer shall be filed with the Superior Court within 2 years of the employer's alleged action. If the Court, after hearing, finds in favor of the employee, the employee shall be restored to employment or to the position, privilege, right or other condition of employment denied by such action and shall be compensated for any loss of compensation and damages caused thereby, as well as for all costs and attorney's fees, as fixed by the Court, except that if the employee shall cease to be qualified to perform the duties of employment, the employee shall not be entitled to such restoration and compensation. An employer who violates this section shall be liable to pay a penalty of not less than $500 and not more than $3,000, as may be determined by the Court and which shall be paid to the Workers' Compensation Fund. Any party shall have the right to appeal as in other cases before the Court, but if the employee's claim ultimately is sustained, the employer also shall be liable for all costs and attorney's fees on appeal.
69 Del. Laws, c. 370, § 1; 71 Del. Laws, c. 84, § 9.;