Delaware Workers' Compensation

CHAPTER 23. WORKERS' COMPENSATION

SUBCHAPTER I. GENERAL PROVISIONS

§ 2301. Definitions.

As used in this chapter:

(1) "Board" means the Industrial Accident Board.

(2) "Child" includes stepchildren and adopted children and children to whom the deceased stood in loco parentis if members of the decedent's household at the time of the decedent's death, and includes posthumous children but not married children.

(3) "Compensable ionizing radiation injury" means any harmful change in the human organism including damage to or loss of a prosthetic appliance arising out of and in the course of employment and caused by exposure to ionizing radiation which renders the injured party disabled within the meaning of §§ 2324 and 2325 of this title and/or permanently injured within the meaning of § 2326 of this title.

(4) "Compensable occupational diseases” includes all occupational diseases arising out of and in the course of employment only when the exposure stated in connection therewith has occurred during employment.

(5) "Compensation" wherever the context requires it includes surgical, medical and hospital services, medicines and supplies and funeral benefits provided for in this chapter. Nothing in this chapter shall be construed to require a worker who in good faith relies on or is treated by prayer or spiritual means by a duly accredited practitioner of a well-known church to undergo any medical or surgical treatment, nor shall such worker or the worker's dependents be deprived of any compensation payments to which the worker would have been entitled if medical or surgical treatment were employed.

(6) "Death" when mentioned as a cause for compensation under this chapter means death resulting from violence to the physical structure of the body and its resultant effect when reasonably treated and occurring within 285 weeks after the accident, and compensable occupational diseases, as defined in this section, arising out of and in the course of the employment, provided that if death shall occur beyond 285 weeks after the accident, the Board may consider such death as a cause for compensation when the Board has a medical history on the case resulting from the payment of compensation for the injury which is alleged to have caused the death.

(7) "Deductible clause" shall mean a clause in an agreement between an employer and an insurer that the employer shall be liable for a specified initial amount, per occurrence or per employee, of each claim, loss or liability; but that the insurer shall be liable for any excess liability up to and including the maximum amount permitted by law.

(8) "Dependent" includes all persons other than the injured employee who are entitled to compensation under the elective schedule set forth in this chapter, and wherever the context requires it, includes the personal representatives and the surviving spouse of the deceased, and guardians of infants or trustees for incompetent persons.

(9) "Employee" means, every person in service of any corporation (private, public, municipal or quasi-public), association, firm or person, excepting those employees excluded by this subchapter, under any contract of hire, express or implied, oral or written, or performing services for a valuable consideration, excluding spouse and minor children of a farm employer unless the spouse or minor child is a bona fide employee of a farm employer and is named in an endorsement to the farm employer's contract of insurance, and excluding any person whose employment is casual and not in the regular course of the trade, business, profession or occupation of his employer, and not including persons to whom articles or materials are furnished or repaired, or adopted for sale in the worker's own home, or on the premises not under the control or management of the employer. "Casual employment," as used in this subdivision, means employment for not over 2 weeks or a total salary during the employment not to exceed $100 and, subject to the above, repairs and maintenance of employer's regular business shall not be construed as casual employment; except, however, that everyone assigned to work under §§ 901-905 of Title 31 is specifically designated an employee, notwithstanding any provisions of this section to the contrary. Inmates in the custody of the Department of Correction or inmates on work release who participate in the Prison Industries Program or other programs sponsored for inmates by the Department of Correction pursuant to Chapter 65 of Title 11 or other applicable Delaware law shall not be considered employees of the State for purposes of this title or otherwise be eligible for workers' compensation benefits unless said inmate is employed by an employer other than the State or a political subdivision thereof.

(10) "Employer" includes all those who employ others unless they are excluded from the application of this chapter by any provision of this subchapter, and if the employer is insured, the term shall include the insurer as far as practicable; employer shall also include the governing body for which employable relief recipients are assigned work under §§ 901-905 of Title 31.

(11) "Executive officers" means the president, any vice-president, secretary, treasurer or any other executive officer elected and empowered by the board of directors in accordance with the charter and the regularly adopted bylaws of the corporation.

(12) "Injury" and "personal injury" mean violence to the physical structure of the body, such disease or infection as naturally results directly therefrom when reasonably treated and compensable occupational diseases and compensable ionizing radiation injuries arising out of and in the course of employment.

(13) "Insurance carrier" means any insurance corporation, mutual association or company or interinsurance exchange which insures employers against liability under this chapter or against liability at common law for accidental injuries to employees.

(14) "Ionizing radiation" means any particulate or electromagnetic radiation capable of producing ions directly or indirectly in its passage through matter.

(15) "Personal injury sustained by accident arising out of and in the course of the employment":

a. Shall not cover an employee except while the employee is engaged in, on or about the premises where the employee's services are being performed, which are occupied by, or under the control of, the employer (the employee's presence being required by the nature of the employee's employment), or while the employee is engaged elsewhere in or about the employer's business where the employee's services require the employee's presence as part of such service at the time of the injury, provided, however, that participation in an approved Travelink Traffic Mitigation Act program, created pursuant to subchapter IV of Chapter 20 of Title 30, shall not be construed as meeting either exception contained in this subsection; and

b. Shall not include any injury caused by the wilful act of another employee directed against the employee by reasons personal to such employee and not directed against the employee as an employee or because of the employee's employment.

c. Shall, however, cover any personal injury to an off-duty employee of the State of Delaware who demonstrates by a preponderance of the evidence that the injury was the result of an intentional act by a person associated with the employee in that employee’s official capacity who committed the act because of that association. It is an affirmative defense in the case of an off-duty injury that the injured employee initiated the incident that resulted in the injury.

(16) "Services" and "supplies" mean all treatments and apparatus, including glasses, artificial members, shoes and other corrective appliances made necessary by reason of the injuries sustained.

(17) "Wilful self-exposure to occupational disease" includes :

a. Failure or omission to observe such rules and regulations as may be promulgated and posted in the plant by the employer tending to the prevention of occupational diseases; and

b. Failure or omission to truthfully state to the best of the employee's knowledge, in answer to inquiry made by the employer, the location, duration and nature of previous employment of the employee in which the employee was exposed to any occupational diseases.

(18) "Department" means the Department of Labor.

(19) "Hearing Officer" means a Hearing Officer appointed pursuant to

§ 2301B. of this title.

(20) “Immediate Family” means a parent, spouse, child or sibling of a sole proprietor or partner.

§ 2301A. Industrial Accident Board.

(a) The Industrial Accident Board is continued. It shall consist of 10 members, each of whom shall be appointed by the Governor for a term of six years and confirmed by the State Senate. The appointments shall be made so that there shall always be on the Board two residents of New Castle County outside of the City of Wilmington, one resident of the City of Wilmington, two residents of Kent County, two residents of Sussex County and three members-at-large residents of any of the subdivisions of the State, and not more than six of said members shall be of the same political party.

(b) Each member of the Board shall receive an annual salary of fifteen thousand dollars except for the chairperson, who shall receive an annual salary of eighteen thousand dollars. The members of the Board shall receive from the State their actual and necessary expenses while traveling on the business of the Board, but such expense shall be sworn to by the person who incurred the expense, and any such person falsely making any such report shall be guilty of perjury and punishable accordingly. The salary of the members of the Board shall be paid in the same manner as the salaries of state officers are paid.

(c) A majority of the members of the Board shall constitute a quorum for the exercise of any of the powers or authority conferred on the Board, except for hearings conducted pursuant to this title, in which case two members of the Board, shall constitute a quorum and a sufficient panel to decide such hearings. Any disagreement involving a procedural issue arising before or after a hearing may be decided by one member of the Board.

(d) The Board, any Board panel, or any Board member empowered to decide any matter pursuant to Part II of this title shall act in conformity with applicable provisions of the Administrative Procedures Act set forth in chapter 101 of Title 29, including, but not limited to, § 10129 of Title 29. Lawyers representing clients before the Board shall act in conformity with applicable provisions of The Delaware Lawyers’ Rules of Professional Conduct, including, but not limited to, Rule 3.5 thereof. Disputes regarding pre-hearing or post-hearing matters shall be presented by written motion and decided by written order.

(e) The Governor shall appoint the Board’s Chairperson from among the Board’s Members and the Chairperson shall serve at the Governor’s pleasure in such capacity.

(f) The Administrator of the Office of Workers’ Compensation shall perform all the administrative duties of the Board, including but not limited to scheduling the docket, maintaining the Board’s records, and providing the liaison between the public and the Board members. The Department may employ such clerical and other staff as it deems necessary.

(g) The Board shall have a seal for authentication of its orders, awards and proceedings, upon which shall be inscribed the words -- "Industrial Accident Board -- Delaware -- Seal."

(h) The Governor may at any time, after notice and hearing, remove any Board member for gross inefficiency, neglect of duty, malfeasance, misfeasance or nonfeasance in office.

(i) The Board shall have jurisdiction over cases arising under Part II of this title and shall hear disputes as to compensation to be paid under Part II of this title. The Board may promulgate its own rules of procedure for carrying out its duties consistent with Part II of this title and the provisions of the Administrative Procedures Act. Such rules shall be for the purpose of securing the just, speedy, and inexpensive determination of every petition pursuant to Part II of this title. The rules shall not abridge, enlarge or modify any substantive right of any party, and they shall preserve the rights of parties as declared by Part II of this title.

§ 2301B. Hearing Officers.

(a) There is hereby created within the Department of Labor the full-time position of Hearing Officer. With respect to cases arising under Part II of this title, the Hearing Officers shall have:

(1) All powers and duties conferred or imposed upon such Hearing Officers by law or by the Rules of Procedure for the Industrial Accident Board;

(2) The power to administer oaths and affirmations;

(3) The power, with consent of the parties, to hear and determine any pre-hearing matter pending before the Board. In such circumstances, the Hearing Officer's decision has the same authority as a decision of the Board and is subject to judicial review on the same basis as a decision of the Board;

(4) The power, with consent of the parties, to conduct hearings, including any evidentiary hearings required by Part II of this title, and to issue a final decision determining the outcome of such hearings. In such circumstances, the Hearing Officer's decision has the same authority as a decision of the Board and is subject to judicial review on the same basis as a decision of the Board;

(5) The Hearing Officer shall have the responsibility for advising the Board regarding legal issues and writing the Board's decision with respect to any hearing conducted by the Board at which such Hearing Officer has been assigned by the Department. The Hearing Officer shall not participate in the deliberations of the Board with respect to the determination of matters before the Board or vote on any matter to be decided by the Board but may be present during such deliberations for the purpose of providing legal advice.

(6) With respect to any matter to which they are assigned responsibility in accordance with Part II of this title, the same authority as the Board would have to conduct or dispose of such matter in accordance with Part II of this title and the Board's Rules of Procedure. In such circumstances, any reference in Part II of this title or the Board's Rules of Procedure to the Board shall also refer to the Hearing Officer when such Hearing Officer is assigned responsibility in accordance with Part II of this title.

(b) Hearing Officers shall be appointed by the Secretary of Labor and shall serve for a term of five years; provided, however, that the initial Hearing Officers may be appointed to terms shorter than five years but not less than three years to ensure staggered term expirations. Appointees shall be residents of the State, shall be duly admitted to practice law before the Supreme Court of this State, and shall not engage in the practice of law nor any business, occupation, or employment inconsistent with the expeditious, proper, and impartial performance of their duties. The number of Hearing Officers from 1 major political party shall not exceed a majority of 1. Individuals appointed as Hearing Officers shall under this section shall take the oath or affirmation prescribed by Article XIV, §1 of the Delaware Constitution before they enter upon the duties of their office.

(c) Hearing Officers shall report to and be supervised by a Chief Hearing Officer, who shall be designated by the Secretary of Labor. Reappointments shall be at the discretion of the Secretary of Labor. The salary of a Hearing Officer shall not be reduced during the term being served below the salary fixed at the beginning of that term.

(d) The removal of a Hearing Officer by the Secretary of Labor, after consultation with the Chairperson of the Board, during the term of appointment may be made for just cause. For the purposes of this subsection only, 'just cause' shall be defined as including, but not limited to, reduction in force, inefficiency, or unsatisfactory performance of duties. The employee may contest the removal and file for binding arbitration and an arbitrator will be appointed jointly by the Chairperson of the Merit Employees Relations Board and the State Personnel Director to determine the matter.

§ 2301C. Workers' Compensation Specialist.

There is hereby created within the Department of Labor the classified full-time position of Workers' Compensation Specialist. The Specialist shall assist unrepresented injured employees by providing information so that such employees can understand, assert, and protect their rights under Part II of this title. In addition, the Specialist may assist the Department in expediting the processing of petitions. However, assistance provided under this section shall not include representing claimants in hearings or offering legal advice.

§ 2301D. Annual Review of Industrial Accident Board Case Management.

(a) The General Assembly intends for the Industrial Accident Board, and the Hearing Officers thereof, to manage its caseload in a manner which recognizes the importance of determining matters before the Board in a speedy, efficient, and just manner. To that end, the General Assembly intends for the Board and the Hearing Officers thereof to cooperate closely with the Department of Labor, which is the Executive Branch agency responsible for the effective administration of the Board's activities pursuant to Part II of this title, in developing procedures and processes which accomplish that important purpose.

(b) To ensure public accountability for the speedy, efficient, and just determination of the matters before the Board, the Department of Labor shall conduct an annual review of the effectiveness of the management of the Board's caseload. Such annual review should be published on or before February 15 of each year, and the Board shall be involved in the development of such annual review. The review shall include:

(1) An analysis of the caseload pending before the Board, including, but not limited to, an analysis of dispositional speed, caseload backlog, number of continuances granted and the grounds therefore, number of appeals and the reversal rate of the Board, and compliance with hearing and decisional deadlines set forth in Part II of this title or in Board rules, to ensure that the performance of the Board as a whole can be evaluated by the General Assembly, the Governor, and the public at large;

(2) An analysis of the caseload pending before the Board, particularized as to the individual Hearing Officers of the Board to ensure that the performance of such Hearing Officers can be evaluated;

(3) Departmental recommendations regarding methods, including, but not limited to, legislative action and Board rule changes, to improve the performance of the Board and Department in ensuring the speedy, efficient, and just determination of matters before the Board.

(c) To ensure that the annual review considers the perspectives of the diversity of Delawareans interested in the effective performance of the Board, an advisory group is hereby established to consult with the Department in its development of the Department annual review. Such advisory group shall be appointed by the Governor, shall be convened by the Secretary of Labor or his or her designee, and shall consist of: the two Chairpersons of the respective Labor Committees of each House of the General Assembly or their designees; three representives of Delaware's business community; three representatives of labor; two representatives of the Delaware Bar, one of whom shall be primarily engaged in the representation of claimants before the Board and one of whom shall be primarily engaged in the representation of employers before the Board; and two members of the Board. The members shall be appointed for a term of three years. Members shall receive no compensation.

§ 2302. Wages; definition and computation; valuation of board and lodging.

(a) The term "wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. It does not include gratuities received from the employer or others or amounts deducted by the employer under the contract of hiring for labor, material, supplies, tools or other things furnished or paid for by the employer and necessary for the performance of such contract by the employee.

(b) If the rate of wages is fixed by the day or hour, the employee's weekly wages shall be taken to be that rate times the number of days or hours in an average work week of the employee's employer at the time of the injury. If the rate of wages is fixed by the output of the employee, then the employee's weekly wage shall be taken to be the employee's average weekly earnings for so much of the preceding 6 months as the employee has worked for the same employer. If, because of exceptional causes, such method of computation does not ascertain fairly the earnings of an employee, then the weekly wage shall be based on the average earnings for 6 months of an average employee of the same or most similar employment.

(c) When no valuation is fixed on board and lodging by the parties in the contract of hire or at the time of hiring, the valuation for the purpose of computing compensation shall be established as follows:

(1) For board-$15 per day regardless of whether this applies to 1, 2, or 3 meals per day;

(2) For lodging-$15 per day or night.

(d) The term "wages" as applied to employees assigned to work under the provisions of §§ 901-905 of Title 31, shall be determined by dividing the sum the employee is entitled to receive per month relief, at the time of injury, by 4 1/3.

§ 2303. Territorial application of chapter.

(a) If an employee, while working outside the territorial limits of this State, suffers an injury on account of which the employee, or in the event of the employee's death the employee's dependents, would have been entitled to the benefits provided by this chapter had such injury occurred within this State, such employee, or in the event of the employee's death resulting from such injury the employee's dependents, shall be entitled to the benefits provided by this chapter, provided that at the time of such injury:

(1) The employee's employment is principally localized in this State; or

(2) The employee is working under a contract of hire made in this State in employment not principally localized in any state; or

(3) The employee is working under a contract of hire made in this State in employment principally localized in another state whose workers' compensation law is not applicable to the employee's employer; or

(4) The employee is working under a contract of hire made in this State for employment outside the United States and Canada.

(b) The payment or award of benefits under the workers' compensation law of another state, territory, province or foreign nation to an employee or the employee's dependents otherwise entitled on account of such injury or death to the benefits of this chapter shall not be a bar to a claim for benefits under this chapter, provided that claim under this chapter is filed within 2 years after such injury or death. If compensation is paid or awarded under this chapter:

(1) The medical and related benefits furnished or paid by the employer under such other workers' compensation law on account of such injury or death shall be credited against the medical and related benefits to which the employee would have been entitled under this chapter had claim been made solely under this chapter;

(2) The total amount of all income benefits paid or awarded the employee under such other workers' compensation law shall be credited against the total amount of income benefits which would have been due the employee under this chapter had claim been made solely under this chapter;

(3) The total amount of death benefits paid or awarded under such other workers' compensation law shall be credited against the total amount of death benefits under this chapter.

(c) If an employee is entitled to the benefits of this chapter by reason of an injury sustained in the State in employment by an employer who is domiciled in another state and who has not secured the payment of compensation as required by this chapter, the employer or the employer's carrier may file with the Department a certificate, issued by the commission or agency of such other state having jurisdiction over workers' compensation claims, certifying that such employer has secured the payment of compensation under the workers' compensation law of such other state and that with respect to said injury such employee is entitled to the benefits provided under such law. In such event:

(1) The filing of such certificate shall constitute an appointment by such employer or the employer's carrier of the Department as its agent for acceptance of the service of process in any proceeding brought by such employee or the employee's dependents to enforce the employee's or dependents' rights under this chapter on account of such injury;

(2) The Department shall send to such employer or carrier, by registered or certified mail to the address shown on such certificate, a true copy of any notice of claim or other process served on the Director by the employee or the employee's dependents in any proceeding brought to enforce the employee's or dependents' rights under this chapter;

(3)a. If such employer is a qualified self-insurer under the workers' compensation law of such other state, such employer shall, upon submission of evidence, satisfactory to the Department, of its ability to meet its liability to such employee under this chapter, be deemed to be a qualified self-insurer under this chapter;

b. If such employer's liability under the workers' compensation law of such other state is insured, such employer's carrier, as to such employee or the employee's dependents only, shall be deemed to be an insurer authorized to write insurance under and be subject to this chapter; provided, however, that unless its contract with said employer requires it to pay an amount equivalent to the compensation benefits provided by this chapter, its liability for income benefits or medical and related benefits shall not exceed the amounts of such benefits for which such insurer would have been liable under the workers' compensation law of such other state;

(4) If the total amount for which such employers' insurance is liable under paragraph (3) of this subsection is less than the total of the compensation benefits to which such employee is entitled under this chapter, the Department may, if it deems it necessary, require the employer to file security, satisfactory to the Department, to secure the payment of benefits due such employee or the employee's dependents under this chapter; and

(5) Upon compliance with the preceding requirements of this subsection, such employer, as to such employee only, shall be deemed to have secured the payment of compensation under this chapter.

(d) As used in this section:

(1) "United States" includes only the states of the United States and the District of Columbia.

(2) "State" includes any state of the United States, the District of Columbia, or any province of Canada.

(3) "Carrier" includes any insurance company licensed to write workers' compensation insurance in any state of the United States or any state or provincial fund which insures employers against their liabilities under a workers' compensation law.

(4) A person's employment is principally localized in this or another state when:

a. A person's employment has a place of business in this or such other state and the person regularly works at or from such place of business; or

b. If subparagraph a. of this paragraph is not applicable, the person is domiciled and spends a substantial part of the person's working time in the service of the person's employer in this or such other state.

(5) Any employee whose duties require the employee to travel regularly in the service of the employee's employer in this and 1 or more other states may, by written agreement with the employee's employer, provide that the employee's employment is principally localized in this or another such state, and, unless such other state refuses jurisdiction, such agreement shall be given effect under this chapter.

(6) "Workers' Compensation Law" includes "Occupational Disease Law."

§ 2304. Compensation as exclusive remedy.

Every employer and employee, adult and minor, except as expressly excluded in this chapter, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies.

§ 2305. Exemption from liability prohibited; exception.

No agreement, rule, regulation or other device shall in any manner operate to relieve any employer or employee in whole or in part from any liability created by this chapter, except as specified in this chapter.

§ 2306. Applicability - Employers.

(a) Except as otherwise indicated, this chapter shall apply to the employer and employee in any employment in which 1 or more employees are engaged.

(b) In all cases where an employer not subject to this chapter carries insurance to insure the payment of compensation to the employees, then in any and all such cases such employer and employees shall come under this chapter, and all of the provisions thereof, with the same force and effect as in cases where an employer is subject to this chapter.

(c) Every employer shall keep a summary of this chapter, approved by the Department, and any applicable regulations published thereunder or a summary thereof, approved by the Department, posted in a conspicuous and accessible location in or about the premises or place of employment and where employees normally pass. Employers shall be furnished copies by the Department on request without charge.

§ 2307. Same - Domestic servants and farm laborers.

(a) This chapter shall not apply to any person employed as a household worker in a private home or household who earns less than seven hundred and fifty dollars in cash in any 3 month period from a single private home or household and any person employed as a casual worker in a private home or household who earns less than seven hundred and fifty dollars in cash in any 3 month period from a single private home or household.

(b) This chapter shall not apply to farm laborers or to their respective employers unless such an employer carries insurance to insure the payment of compensation to such employees or their dependents.

§ 2308. Same - Executive officers; sole proprietors and partners.

(a) Executive officers of covered employers are included within this chapter; provided, however, that as many as 8 officers who are stockholders of a corporation may be exempted from this chapter if the corporation and the exempted corporate officers agree in writing to such an exemption. Anyone or all of the officers who elect an exemption shall for the purposes of § 2306 of this title be considered employees.

(b) Sole proprietors and partners are not included within this chapter, but such sole proprietor or partner may elect coverage in accordance with §2306 of this Title.

(c) Members of the immediate family of a sole proprietor or partner are included within this chapter; provided, however, that any such person may be exempted from this chapter if he or she agrees in writing to such an exemption.

§ 2309. Same - State, counties and political subdivisions.

This chapter shall not apply to the State, any governmental agency created by it, each county, city, town, township, incorporated village, school district, sewer district, drainage district, public or quasi-public corporation or any other political subdivision of the State that has 1 or more employees, official or officer, whether elected or appointed unless proper authority is given by an above named entity to elect to be covered by the application of this chapter.

§ 2310. Applicability to persons engaged in interstate or foreign commerce.

This chapter shall not apply to employees injured or killed while engaged in interstate or foreign commerce or to their employers whenever the laws of the United States provide for compensation or for liability for such injury or death.

§ 2311. Contractors, subcontractors and lessees of motor vehicles transporting passengers for hire as employers.

(a) No contractor or subcontractor shall receive compensation under this chapter, but shall be deemed to be an employer and all rights of compensation of the employees of any such contractor or subcontractor shall be against their employer and not against any other employer.

(b) Lessees transporting passengers for hire in motor vehicles leased pursuant to written lease shall not receive compensation under this chapter, but shall be deemed to be employers.

§ 2312. Volunteer firefighters treated as State employees; election by volunteer fire companies; revocation; wage as basis for compensation.

(a) For the purposes of this chapter, volunteer firefighters shall be treated as State employees so long as the State elects to be covered by the application of this chapter.

(b) If the State elects not to be covered by the application of this chapter, then any duly organized volunteer fire company of the State may elect to be bound by the compensatory provisions of this chapter, provided that the election receives a majority vote of the members of the company at a duly called meeting of the company, and notice of the election is forwarded in writing to the Department. Any volunteer fire company which elects to be bound by the compensatory provisions of this chapter may, subsequent to the election, revoke the election provided the revocation receives a majority vote of the members of the company at a duly called meeting of the company and notice of the revocation is forwarded in writing to the Department.

(c) The wage of volunteer firefighters on which compensation is based shall be the wage received in the regular employment of such firefighters.

(d) For the purpose of this section, "volunteer fire company" and "volunteer firefighters" shall also include junior members, Auxiliary members, paid employees of volunteer fire companies, volunteer ambulance companies of this State, volunteer ambulance company members, paid employees of volunteer ambulance companies and members of the University of Delaware Emergency Care Unit.

§ 2313. Record and report of injuries by employers; penalty; admissibility as evidence.

(a) Every employer to whom this chapter applies shall keep a record of all injuries, fatal or otherwise, received by employees in the course of their employment. Within 10 days after knowledge of the occurrence of an accident resulting in personal injury, a report thereof shall be made in writing by the employer to the Department in duplicate on blanks to be procured from the Department for that purpose. The employer shall provide a copy of the report of injury to the employee upon completion of the report. Upon the termination of the disability of the injured employee, the employer shall make a supplemental report to the Department.

(b) The reports shall contain the name and nature of the business of the employer, the location of the employer's establishment or place of work, the name, age, sex and occupation of the injured employee and shall state the time, nature and cause of the injury and such other information as may be required for properly carrying out this chapter. The employee’s copy shall contain a summary of the law as provided by the Department.

(c) Whoever, being an employer, refuses or neglects to make a report required by this section shall be fined not less than $100 nor more than $250 for each offense. In the event the employer can show that the failure to make a report required by this section was caused by the refusal of the insurance carrier for the employer to report a reportable injury which the insurance carrier had knowledge of and of which the employer had no knowledge, after written request therefor, the aforementioned fine may be levied against said insurance carrier. The fine shall be assessed by the Industrial Accident Board after the employer and/or the insurance carrier for the employer is given notice and a hearing on the violation. The fine shall be payable to the Workers' Compensation Fund.

(d) Reports made in accordance with this section shall not be evidence against the employer in any proceedings under this chapter or otherwise but shall be exclusively for the information of the Department in securing data to be used in connection with the performance of their duties.

§ 2314. Defenses unavailable in action for compensation.

In any action instituted by any person to recover damages for personal injury sustained by an employee by accident arising out of and in the course of employment within this State or for death resulting from injury so sustained, it shall not be a defense that:

(1) The injury or death was caused in whole or in part by the want of ordinary or reasonable care of or by the negligence of a fellow employee; or

(2) The employee had either expressly or impliedly assumed the risk of the injury; or

(3) Injury was caused in any degree by the negligence of such employee.

§ 2315. Compensation to illegally employed minors.

The right to receive compensation under this chapter shall not be affected by the fact that a minor is employed or is permitted to be employed in violation of the laws of the State relating to employment of minors or that the minor obtained employment by misrepresenting the minor's own age.

§ 2316. Licensed real estate salespersons and licensed associate real estate brokers who are independent contractors.

(a) This chapter shall not apply to licensed real estate salespersons or licensed associate real estate brokers who are affiliated with a licensed real estate broker under a written contract pursuant to which they are remunerated on a commission only basis and are designated as independent contractors and who qualify as independent contractors for federal tax purposes, except that a licensed real estate broker with whom they have such contracts shall have the right to elect to carry insurance to insure the payment of workers' compensation to them or their dependents for part or all of the period of such affiliation.

(b) For the purposes of this section, a licensed real estate broker with whom such licensed real estate salespersons and licensed associate real estate brokers have such independent contract affiliation shall inform in writing such licensed real estate salespersons and such licensed associate real estate brokers whether the licensed real estate broker has elected to carry insurance to insure the payment of workers' compensation to them or their dependents. If a licensed real estate broker intends to change the election concerning workers' compensation, the licensed real estate broker shall notify any licensed real estate salespersons or licensed associate real estate brokers affected thereby at least 30 days prior to the effective date of the change in the election.

§ 2317. HAZMAT team members treated as State employees; wage as basis for compensation.

(a) For purposes of this chapter, HAZMAT team members shall be treated as State employees so long as the State elects to be covered by application of this chapter.

(b) The wage of HAZMAT team members on which compensation is based shall be the wage received in the regular employment of such HAZMAT team members.

(c) For purposes of this section, HAZMAT team members shall include all those persons designated as HAZMAT response team members by the Department of Natural Resources and Environmental Control and/or the State Fire School, and shall include personnel employed by private industry.

(d) Covered incidents shall include any incident where the HAZMAT team members are notified to respond, including travel to and from the incident, the incident itself, and cleanup after the incident, and any training exercises.

§ 2320. Subpoena of witnesses; oaths; service of process; medical examination and testimony; various fees.

At the request of any party, subpoenas shall be issued under authority of the Department of Labor. The party requesting the subpoena shall obtain a blank subpoena from the Department and shall complete the necessary information.

(a) Every subpoena shall:

(1) state the name of the Industrial Accident Board;

(2) state the title of the action and the IAB hearing number;

(3) state the last known address of the person(s) to be served;

(4) command each person to whom it is directed to attend and give

testimony or to produce and permit inspection and copying of designated

books, documents, or tangible things in the possession, custody or control

of that person, or to permit inspection of premises, at a time and place

therein specified;

(5) command each person directed to give testimony, or to appear at

hearing or at deposition at a time and place therein specified;

(6) identify the name, address, and phone number of the person issuing

the subpoena;

(7) state the following in boldface:

“If you object to this subpoena, you must immediately contact the

Department of Labor, Office of Workers’ Compensation and request

a hearing to present your objections. Objections may be made if the

subpoena (a) fails to allow reasonable time for compliance; (b) requires

disclosure of privileged or other protected matter and no exception or

or waiver applies; or (c) subjects a person to undue burden.”

(b) The following shall apply to the service of a subpoena:

(1) A party issuing a subpoena shall be responsible for service of the

subpoena and shall provide a copy of the completed subpoena to the

Department of Labor.

(2) A subpoena may be served by the Sheriff or by any person who is not a party and is not less than 18 years of age or by certified/return receipt requested mail to the last known address of the person listed on the subpoena

(3) Proof of service when necessary shall be made by filing with the

Department of Labor a statement of the date and manner of service and of

the names of the persons served.

(4) A party or an attorney responsible for the issuance and service of a

subpoena shall take reasonable steps to avoid imposing undue burden or

expense on a person subject to that subpoena. The Board shall enforce this

duty and impose upon the party or attorney in breach of this duty an

appropriate sanction, which may include, but is not limited to, lost earnings

and a reasonable attorney’s fee.

(1) A person commanded to produce and permit inspection and copying

may object to the inspection or copying of any or all designated materials

or of the premises. If objection is made, the party serving the subpoena

may, upon notice to the person commanded to produce, move at anytime

for an order to compel production.

(2) If a party objects to a subpoena, they must immediately contact the

Department of Labor and request a hearing before the Board to present the

objections. The Board may quash or modify a subpoena if it (a) fails to

allow reasonable time for compliance; (b) requires disclosure of privileged

or other protected matter and no exception or waiver applies; or

(3) A person responding to a subpoena to produce documents shall

produce them as they are kept in the usual course of business or shall

organize and label them to correspond with the categories in the demand.

(4) When information subject to a subpoena is withheld on a claim that

it is privileged or subject to protection as trial preparation materials, the

claim shall be made expressly and shall be supported by a description of the

nature of the documents, communications, or things not produced that is

sufficient to enable the demanding party to contest the claim.

(d) The Board may administer oaths in any proceedings and in all other cases where it is necessary in the exercise of its powers and duties. The Board may examine persons as witnesses, take evidence, require production of documents and do all other things conformable to law which are necessary to effectively discharge the duties of office.

(e) Any process or order of the Department or any notice or paper requiring service may be served by any sheriff, deputy sheriff, constable or any employee of the Department and return thereof made to the Department. Such officer shall receive the same fees as are provided by law for like service in civil actions, except that if service is made by an employee of the Department, the employee shall not receive any fee but shall be paid the employee’s actual expenses.

(f) If any person, in proceedings before the Board disobeys or resists any lawful order or process, misbehaves during a hearing or so near the place thereof as to obstruct the hearing, neglects to produce after having been ordered to do so any pertinent document, refuses to appear after having been subpoenaed or upon appearing, refuses to take the oath as a witness or, after having taken the oath, refuses to be examined according to law, the Board shall certify the facts to any Judge of the Superior Court, who shall thereupon hear the evidence as to the acts complained of. If the evidence so warrants the Judge shall punish such person in the same manner and to the same extent as for a contempt committed before the Superior Court, or shall commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the Superior Court.

(g) The board may in any case, upon the application of either party or on its own motion, 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 physician will be allowed a reasonable fee subject to the approval of the Board, which fee shall be taxed as costs. “The Board may impose a fine not to exceed $500.00 for each use of the term “Independent Medical Exam” or “IME” in violation of this subsection.”

(h) Witness fees and mileage shall be computed at the rate allowed to witnesses in the Superior Court. Costs legally incurred may be taxed against either party or apportioned between parties at the sound discretion of the Board, as the justice of the case may require.

(i) Fees of physicians for services under Part II of this title shall be subject to the approval of the Board.

(j) Attorney's fee.

(1) A reasonable attorney's fee in an amount not to exceed thirty percent of the award or ten times the average weekly wage in Delaware as announced by the Secretary of Labor at the time of the award, whichever is smaller, shall be allowed by the Board to any employee awarded compensation under Part II of this title and taxed as costs against a party.

(2) In the event an offer to settle an issue pending before the Industrial Accident Board is communicated to the claimant or the claimant's attorney in writing at least 30 days prior to the trial date established by the Board on such issue, and the offer thus communicated is equal to or greater than the amount ultimately awarded by the Board at the trial on that issue, the provisions of paragraph (1) of this subsection shall have no application. If multiple issues are pending before the Board, said offer of settlement shall address each issue pending, and shall state explicitly whether or not the offer on each issue is severable. The written offer shall also unequivocally state whether or not it includes medical witness fees and expenses, and/or late cancellation fees relating to such medical witness fees and expenses.

(k) Except as otherwise provided in Part II of this title, all money or income received by the Department or the Board from taxes, fees and/or operations and all other sources whatsoever, directly or indirectly, shall be deposited to the credit of the State Treasurer and shall be credited to the General Fund of the State.

SUBCHAPTER II. PAYMENTS FOR INJURIES OR DEATH AND INCIDENTAL BENEFITS.

§ 2321. Minimum duration of incapacity.

Permanent injury relating to hearing or vision loss, surgical, medical and hospital services, medicines and supplies, and funeral benefits shall be paid from the first day of injury. Beginning with the fourth day of incapacity, all compensation otherwise provided by law shall be paid. If the incapacity extends to 7 days or more, including the day of injury, the employee shall receive all compensation otherwise provided by law from the first day of injury.

§ 2322. Medical and other services, and supplies as furnished by employer.

(a) During the period of disability the employer shall furnish reasonable surgical, medical, dental, optometric, chiropractic and hospital services, medicine and supplies, including repairing damage to or replacing false dentures, false eyes or eye glasses and providing hearing aids, as and when needed unless the employee refuses to allow them to be furnished by the employer.

(b) If the employer, upon application made to the employer, refuses to furnish the services, medicines and supplies mentioned in subsection (a) of this section, the employee may procure the same and shall receive from the employer the reasonable cost thereof within the above limitations.

(c) Upon application made to the Board by the injured employee or someone in the injured employee's behalf, the Board may, at its discretion, require the employer to furnish additional services, medicines and supplies of the kind mentioned in subsection (a) of this subsection, as and when needed, for such further period as it shall deem right and proper. The charges for such additional services, medicines and supplies shall not exceed the rates regularly charged to other individuals for like services and supplies, provided, however, that the Board shall at all times have jurisdiction to determine and shall determine the character of services and supplies to be furnished.

(d) An employee, at any time after a claim for compensation is made, shall have the right, upon application to the employee's employer, to inspect, copy and reproduce any medical records pertaining to said employee in the possession of the employee's employer or the employee's insurance carrier. Medical records, as used in this subsection, shall include physician's reports, hospital reports, diagnostic reports, treatment reports, X-rays and X-ray reports.

(e) The fees of medical witnesses testifying at hearings before the Industrial Accident Board in behalf of an injured employee shall be taxed as a cost to the employer or the employer's insurance carrier in the event the injured employee receives an award.

(f) Every insurance carrier or self-insurer shall be required to replace or renew a defective or worn out prosthesis for the life of the injured person without such replacement or renewal constituting a new claim period.

(g) An employee shall be entitled to mileage reimbursement in an amount equal to the State of Delaware specified mileage allowance rate in effect at the time of travel, for travel to obtain:

(1) Reasonable surgical, medical, dental, optometric, chiropractic, and

hospital services; and

(2) Medicine and supplies, including repairing and replacing damaged

dentures, false eyes or eyeglasses, and providing hearing aids and prosthetic devices.

§ 2323. Selection of physician, surgeon, dentist, optometrist or chiropractor by employee.

Any employee who alleges an industrial injury shall have the right to employ a physician, surgeon, dentist, optometrist or chiropractor of the employee's own choosing. Notice of the employee's intention to employ medical aid as aforesaid shall be given to the employee's employer or its insurance carrier or to the Board. Notice that medical aid was employed as aforesaid shall be given within 30 days thereafter to the employer or its insurance carrier in writing. If the alleged injury is subsequently held to be compensable, the employer shall be liable for the reasonable cost of the services of any physician, surgeon, dentist, optometrist or chiropractor whose employment was utilized by the employee provided notice of said employment was given to the employer or its insurance carrier.

§ 2324. Compensation for total disability.

For injuries resulting in total disability occurring after July 1, 1975, the compensation to be paid during the continuance of total disability shall be 66 2/3% of the wages of the injured employee, as defined by this chapter, but the compensation shall not be more than 66 2/3% of the average weekly wage per week as announced by the Secretary of the Department of Labor for the last calendar year for which a determination of the average weekly wage has been made, nor less than 22 2/9 % of the average weekly wage per week. If at the time of the injury the employee receives wages of less than 22 2/9% of the average weekly wage per week, then the employee shall receive the full amount of such wages per week, as compensation. Nothing in this section shall require the payment of compensation after disability ceases.

§ 2325. Compensation during partial disability.

For injuries resulting in partial disability for work, except the particular cases mentioned in subsections (a)-(g) of § 2326 of this title, the compensation to be paid shall be 66 2/3 percent of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter; but such compensation shall not be more than 66 2/3% of the average weekly wage per week as announced by the Secretary of Labor for the last calendar year for which a determination of the average weekly wage has been made. This compensation shall be paid during the period of such partial disability for work, not, however, beyond 300 weeks. In construing the words "earning power of the employee thereafter" as those words appear in this section, the Board shall take into consideration the value of gratuities, board, lodging and similar advantages received by the employee in subsequent employment.

§ 2326. Compensation for certain permanent injuries.

(a) For all permanent injuries of the following classes, the compensation to be paid regardless of the earning power of the injured employee after the injury shall be as follows:

For the loss of a hand, 66 2/3 percent of wages during 220 weeks;

For the loss of an arm, 66 2/3 percent of wages during 250 weeks;

For the loss of a foot, 66 2/3 percent of wages during 160 weeks;

For the loss of a leg, 66 2/3 percent of wages during 250 weeks;

For the loss of 2 or more of such members not constituting total disability, 66 2/3 percent of wages during the aggregate of the period specified for each;

For the loss of a thumb, 66 2/3 percent of wages during 75 weeks;

For the loss of a first finger, commonly called index finger, 66 2/3 percent of wages during 50 weeks;

For the loss of a second finger, 66 2/3 percent of wages during 40 weeks;

For the loss of a third finger, 66 2/3 percent of wages during 30 weeks;

For the loss of a fourth finger, commonly called little finger, 66 2/3 percent of wages during 20 weeks;

The loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one half of such thumb or finger and compensation shall be for one half of the period, and compensation for the loss of one half of the first phalange shall be one fourth of the period;

The loss of more phalanges than 1 shall be considered as the loss of the entire finger or thumb, provided, however, that in no case shall the amount received for more than 1 finger exceed the amount provided in this schedule for the loss of a hand;

The loss of 3 fingers or 2 fingers and a thumb of the same hand shall be considered as the loss of one half of the hand, and compensation shall be paid for such loss for a period of 110 weeks, or compensation shall be paid for the loss of 3 fingers or 2 fingers and a thumb of the same hand for the number of weeks stated in the above schedule for such a loss, whichever is greater;

For the loss of a great toe, 66 2/3 percent of wages during 40 weeks;

For the loss of 1 of the toes, other than the great toe, 66 2/3 percent of wages during 15 weeks;

The loss of the first phalange of any toe shall be considered to be equal to the loss of one half of such toe, and compensation shall be for one half of such period;

The loss of more phalanges than 1 shall be considered as the loss of the entire toe;

For the loss of an eye, 66 2/3 percent of wages during 200 weeks;

For the loss of a fractional part of the vision of an eye, the compensation shall be for such percentage of the total number of weeks allowed for the total loss of the use of an eye under this section as the loss suffered bears to the total loss of an eye.

(b) Amputation to the ankle or any part of the foot, not including the toes, shall be considered as the equivalent of the loss of a foot. Amputation above the ankle shall be considered as the loss of a leg.

(c) Total loss of the use of a hand, arm, foot, leg or eye shall be considered as the equivalent of the loss of such hand, arm, foot, leg or eye.

(d) In all other cases of permanent injury of the classes specified in subsection (a) of this section, or when the usefulness of a member or any physical function is permanently impaired, the compensation shall bear such relation to the number of weeks stated in the schedule set forth in subsection (a) of this section as the disabilities bear to those produced by the injury named in the schedule.

(e) Unless the Board otherwise determines from the facts, the loss of both hands, or both arms, or both feet, or both legs, or both eyes, or an injury to the spine resulting in permanent and complete paralysis of both legs, or both arms, or 1 leg and 1 arm, or an injury to the skull resulting in incurable imbecility or insanity, shall constitute total disability for work, to be compensated according to § 2324 of this title.

Amputation between the palmar surface of the hand and the shoulder shall be considered as the loss of an arm, and compensation shall be paid for such injury for a period of 250 weeks. Amputation for 50 percent of the palmar surface of the hand shall be considered as the loss of the hand and compensation shall be paid for a period of 220 weeks.

(f) The Board shall award proper and equitable compensation for serious and permanent disfigurement to any part of the human body up to 150 weeks, provided that such disfigurement is visible and offensive when the body is clothed normally, which shall be paid to the employee at the rate of 66 2/3 percent of wages. In the event that the nature of the injury causes both disfigurement to and loss or loss of use of the same part of the human body, the maximum compensation payable under this subsection for that part of the body shall be the higher of either (1) the amount of compensation found to be due for disfigurement without regard to compensation for loss of or loss of use, or (2) the amount of compensation due for loss of or loss of use plus 20% thereof for disfigurement.

For the complete loss of hearing of 1 ear, the employee shall receive compensation at the rate of 66 2/3 percent of wages for a period of 75 weeks.

For the complete loss of hearing in both ears, the employee shall receive 66 2/3 percent of wages for a period of 175 weeks.

For the loss of a fractional part of hearing, the compensation shall be for such percentage of the total loss of weeks allowed for the total loss of hearing under this section as the loss suffered bears to the total loss of hearing.

(g) The Board shall award proper and equitable compensation for the loss of any member or part of the body or loss of use of any member or part of the body up to 300 weeks which shall be paid at the rate of 66 2/3 percent of wages, but no compensation shall be awarded when such loss was caused by the loss of or the loss of use of a member of the body for which compensation payments are already provided by the terms of this section.

(h) The compensation provided for in subsections (a)-(g) of this section shall not be more than 66 2/3% of the average weekly wage per week as announced by the Secretary of Labor for the last calendar year for which a determination of the average weekly wage has been made, nor less than 22 2/9% of the average weekly wage per week. If at the time of the injury the employee receives wages less than 22 2/9% of the average weekly wage per week, then the employee shall receive the full amount of such wages per week as compensation.

(i) Subject to subsection (e) of this section, the compensation provided for in subsections (a)-(h) of this section shall be paid in addition to the compensation provided for in §§ 2324 and 2325 of this title.

§ 2327. Compensation for subsequent permanent injury; special fund for payment.

(a) Whenever a subsequent permanent injury occurs to an employee who has previously sustained a permanent injury, from any cause, whether in line of employment or otherwise, the employer for whom such injured employee was working at the time of such subsequent injury shall be required to pay only that amount of compensation as would be due for such subsequent injury without regard to the effect of the prior injury. Whenever such subsequent permanent injury in connection with a previous permanent injury results in total disability as defined in § 2326 of this title, the employee shall be paid compensation for such total disability, as provided in § 2324 of this title, during the continuance of total disability, such compensation to be paid out of a special fund known as "Workers' Compensation Fund."

Any insurance carrier desiring reimbursement from the Fund shall file a petition with the Board for payment, provided all claim for reimbursement shall be forever barred unless the insurance carrier files a petition with the Department for reimbursement for payments under this section within 2 years after the date on which the employee was first paid total disability benefits following the subsequent permanent injury.

This Act shall take effect on July 1, 2001.

(b) This section shall apply only to employers insured by insurance carriers. It shall not apply to self-insured employers who shall be responsible for payment of their own claims under this section and who shall not be eligible for further reimbursement for payments made under this section after the effective date of the Workers' Compensation Improvement Act of 1997. Awards to self-insureds for reimbursements under this section are revoked as of the effective date of the Workers' Compensation Improvement Act of 1997.

§ 2328. Compensation for death or disability from occupational disease.

The compensation payable for death or disability total in character and permanent in quality resulting from an occupational disease shall be the same in amount and duration and shall be payable in the same manner and to the same persons as would have been entitled thereto had the death or disability been caused by an accident arising out of and in the course of the employment.

In determining the duration of temporary total and/or temporary partial and/or permanent partial disability, and the duration of such payments for the disabilities due to occupational diseases, the same rules and regulations as are applicable to accidents or injuries shall apply.

§ 2329. Compensation for disability resulting from occupational and other preexisting disease.

Whenever any disability from which any employee is suffering following the contraction of a compensable occupational disease is due in part to such occupational disease and in part to a preexisting disease or infirmity, the Board shall determine the proportion of such disability which is reasonably attributable to the occupational disease and the proportion which is reasonably attributable to the preexisting disease or infirmity and such employee shall be entitled to compensation only for the proportion of the disability which is reasonably attributable solely to the occupational disease

§ 2330. Compensation for death.

(a) In case of death, compensation shall be computed on the following basis and distributed to the following persons: