TITLE 19

Labor

Workers' Compensation

CHAPTER 23. WORKERS' COMPENSATION

Subchapter II. Payments for Injuries or Death and Incidental Benefits


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.

Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; 37 Del. Laws, c. 239, § 1; Code 1935, § 6078; 43 Del. Laws, c. 269, § 6; 19 Del. C. 1953, § 2321; 49 Del. Laws, c. 429, § 1; 70 Del. Laws, c. 205, § 1; 70 Del. Laws, c. 532, § 1.;

(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 section, 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 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.

(h) An employer or insurance carrier may pay any health care invoice or indemnity benefit without prejudice to the employer's or insurance carrier's right to contest the compensability of the underlying claim or the appropriateness of future payments of health care or indemnity benefits. In order for any provision or payment of health care services to constitute a payment without prejudice, the employer or insurance carrier shall provide to the health care provider and the employee a clear and concise explanation of the payment, including the specific expenses that are being paid, the date on which such charges are paid, and the following statement, which shall be conspicuously displayed on the explanation in at least 14-point type:

This claim is IN DISPUTE and payment is being made without prejudice to the Employer's right to dispute the compensability of the workers' compensation claim generally or the Employer's obligation to pay this bill in particular.

(1) Partial payment of the uncontested portion of a partially contested health care invoice shall be considered a payment without prejudice to the right to contest the unpaid portion of a health care invoice, provided the above notice requirements are met.

(2) No payment without prejudice made under a reservation of rights pursuant to this subsection shall be subject to return, recapture or offset, absent a showing that the claim for payment was fraudulent.

(3) No payment without prejudice that complies with the above is admissible as evidence to establish that the claim is compensable.

(4) No payment without prejudice that complies with the above shall extend the statute of limitations unless the claim is otherwise determined by agreement or the Board to be compensable.

(i) Availability of vocational rehabilitation services.

(1) Statement of intent. — The General Assembly realizes that despite the best efforts of all concerned, some injured workers may not be able to return to their pre-injury employment and may benefit from vocational rehabilitation.

(2) To the extent assistance may be required in this regard, resources are available to employees including, but not limited to, from the following organizations:

a. Delaware Division of Vocational Rehabilitation;

b. First State Project with Industry; and

c. One Stop Centers.

(3) Nothing in this section is intended to change the existing rights and responsibilities of injured employees or employers regarding vocational rehabilitation services.

Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; 37 Del. Laws, c. 239, § 1; Code 1935, § 6078; 43 Del. Laws, c. 269, § 6; 46 Del. Laws, c. 27; 48 Del. Laws, c. 229; 19 Del. C. 1953, § 2322; 50 Del. Laws, c. 267, § 1; 50 Del. Laws, c. 339, § 5; 53 Del. Laws, c. 126; 61 Del. Laws, c. 505, § 1; 65 Del. Laws, c. 469, § 1; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 85, § 1; 76 Del. Laws, c. 1, § 9.;

(a) Membership; terms. — The Workers' Compensation Oversight Panel shall consist of 24 members. Members serving by virtue of position may appoint a designee to serve at their pleasure in their stead. The Governor shall appoint the 13 nonprovider members who are not serving by virtue of position. The Governor appointed members shall be appointed for a term up to 3 years to allow that no more than 5 Governor appointed members' terms shall expire in any year. The provider members shall be appointed by the appointing authority and for a term of 3 years.

(b) Representation. — The Workers' Compensation Oversight Panel shall include: 2 representatives of insurance carriers providing coverage pursuant to this chapter; 2 representatives of employers; 2 representatives of employees; 2 attorneys licensed to practice law, 1 who regularly represents employees and 1 who regularly represents employers in matters arising under this chapter; the Secretary of Labor; the Insurance Commissioner; 1 representative of Delaware insurance agents; 4 public members; and 9 provider members. A public member: may not be nor may ever have been certified, licensed, or registered in any health-related field; may not be the spouse of someone certified, licensed, or registered in any health-related field; at the time of appointment may not be a member of the immediate family of someone certified, licensed, or registered in any health-related field; may not be employed by a company engaged in a directly health-related business; and may not have a material financial interest in providing goods or services to persons engaged in the practice of medicine. The 9 provider members appointed to the Workers' Compensation Oversight Panel shall include a diverse group of health-care providers (or provider representatives) who are most representative of those providing medical care to employees pursuant to this chapter. The provider members shall consist of the following:

(1) The President of the Medical Society of Delaware shall appoint 4 Delaware-licensed physicians which shall include 1 in the field of primary care, 1 in the field of neurosurgery, and 2 at large representatives;

(2) The President of the Delaware Society of Orthopaedic Surgeons shall appoint a Delaware-licensed orthopedic surgeon;

(3) The President of the Delaware Academy of Physical Medicine and Rehabilitation shall appoint 1 representative;

(4) The President of the Delaware Healthcare Association shall appoint 1 representative;

(5) The President of the Delaware Chiropractic Association shall appoint a Delaware-licensed chiropractor; and

(6) The President of the Delaware Physical Therapy Association shall appoint a Delaware-licensed physical therapist.

In addition to their ability to represent the perspective of their profession, provider members shall be selected for their ability to represent the interests of the community at large. The Department of Labor, Office of Workers' Compensation shall provide staff support to the Panel.

(c) Members of the former Health Care Advisory Panel shall, absent contrary action by the Governor, serve the remainder of their terms for which they were appointed to the Health Care Advisory Panel as members of the Workers Compensation Oversight Panel.

(d) A Chair and Vice Chair shall be selected by the Governor. The Chair and Vice Chair of the Workers' Compensation Oversight Panel shall set an agenda for each meeting, shall preside at meetings, and shall forward recommendations, opinions and other communications of the Panel to the Governor and General Assembly.

(e) Data collection. — It is the intent of the General Assembly that, among its other duties, the Workers' Compensation Oversight Panel be provided with data enabling it to conduct studies to evaluate the workers' compensation system in the State, identify systemic cost drivers, provide objective information to guide policy formulation and identify carrier specific cost drivers. To that end, the Panel is authorized to collect data concerning reports of industrial injuries and occupational disease, the cost of benefits associated with such injuries and diseases, and compliance with the mandatory workers' compensation insurance requirement. The Panel is also charged with ensuring compliance by individual carriers with their responsibilities relating to medical cost control. On at least a quarterly basis, the Insurance Commissioner shall collect and provide to the Panel data sufficient for the Panel to carry out the duties described in this subsection. In addition, the Panel or its designee shall have the authority to demand directly from any person or entity providing health-care services under this chapter data sufficient for the Panel to carry out the duties described in this subsection. The advisory organization designated pursuant to § 2607 of Title 18 shall also on an annual basis provide the Panel with carrier-specific medical cost data for each workers' compensation carrier having a market share in Delaware of 1% or greater over the 12 preceding months. If, after reviewing said data and making necessary inquiries with individual carriers, the Panel determines that there is a well-founded concern that an individual carrier is not sufficiently scrutinizing medical payments, the Panel may direct the Insurance Commissioner to conduct a formal examination of a carrier to determine compliance with applicable laws and regulations regarding medical reimbursements. The Department of Insurance may exercise its authority granted under Title 18 to address legitimate competitive, trade secret, or health-privacy concerns that arise in connection with its responsibilities under this section, provided that the Department's exercise of this authority shall not interfere with the Panel's ability to fulfill its statutory obligations. The Secretary of Labor shall have authority to address legitimate competitive, trade secret, or health-privacy concerns that arise in connection with the Panel's collection of data directly from persons or entities providing health care services under this chapter, provided that the Secretary's exercise of this authority shall not interfere with the Panel's ability to fulfill its statutory obligations.

79 Del. Laws, c. 312, § 2.;

The health-care payment system developed pursuant to this section shall be subject to the following procedures and requirements:

(1) The intent of the General Assembly in authorizing a health-care payment system is to reduce overall medical expenditures for the treatment of workers' compensation-related injuries by 33% by January 31, 2017, and to reduce said expenditures by 20% by January 31, 2015.

(2) The health-care payment system shall include payment rates, instructions, guidelines, and payment guides and policies regarding application of the payment system. When completed, the payment system shall be published on the Internet at no charge to the user via a link from the Office of Workers' Compensation website at http://dia.delawareworks.com/workers-comp/, or a successor website. The payment system shall also be made available in written form at the Office of Workers' Compensation during regular business hours.

(3) The maximum allowable payment for health-care-related payments covered under this chapter shall be the lesser of the health-care provider's actual charges or the fee set by the payment system.

a. The Workers' Compensation Oversight Panel shall, by October 1, 2014, establish a fee schedule for all Delaware workers' compensation funded procedures, treatments, and services based on the Resource Based Relative Value Scale ("RBRVS"), Medical Severity Diagnosis Related Group (MS-DRG), Ambulatory Payment Classification (APC), or equivalent scale used by the Centers for Medicare and Medicaid Services. The RBRVS, MS-DRG, APC, or other equivalent factor shall be multiplied by a Delaware-specific geographically-adjusted factor to ensure adequate participation by providers. The fee schedule shall result in a reduction of 20% in aggregate workers' compensation medical expenses by the year beginning January 31, 2015, an additional reduction of 5% of 2014 expenses by the year beginning January 31, 2016, and an additional reduction of 8% of 2014 expenses by the year beginning January 31, 2017. The aggregate workers' compensation medical expenses required by this paragraph shall be attained through reimbursement reductions of equal percentages among hospitals, ambulatory surgical centers, and other health-care providers; therefore, by January 31, 2015, the fee schedule shall reflect a reduction of 20% in workers' compensation medical expenses paid to hospitals, a reduction of 20% in workers' compensation medical expenses paid to ambulatory surgical centers, and a reduction of 20% in workers' compensation medical expenses paid to other health-care providers. This formula shall also be used for the 5% reduction required by January 31, 2016, and the 8% reduction required by January 31, 2017.

b. In addition, by January 31, 2017, no individual procedure in Delaware paid for through the workers' compensation system (as identified by HCPCS level 1 or level 2 code) shall be reimbursed at a rate greater than 200% of that reimbursed by the federal Medicare system, provided that radiology services may be reimbursed at up to 250% of the federal Medicare reimbursement and surgery services may be reimbursed at up to 300% of the federal Medicare reimbursement.

c. The Workers' Compensation Oversight Panel shall report to the Governor and General Assembly by January 31, 2016, with respect to medical savings recognized as a result of this paragraph (3) and possible unforeseen consequences of the procedure-specific caps required by paragraphs (3)b. and (5) of this section, and the General Assembly may at that time reconsider the specific percentage caps required by paragraphs (3)b. and (5) of this section. The cost reductions required by paragraph (3)a. of this section shall be permanent, with the exception of inflation increases beginning in 2018 as permitted by paragraph (5) of this section.

(4) An independent actuary appointed by the Secretary of Labor shall verify for the Secretary that the fee schedule developed by the Workers' Compensation Oversight Panel under paragraph (3) of this section complies with its requirements. If the fee schedule does not comply with its requirements, or is not completed by October 1, 2014, the Secretary of Labor shall promulgate a fee schedule meeting the requirements of paragraph (3) of this section by regulation.

(5) Beginning on January 1, 2018, the payment system will be adjusted yearly based on percentage changes to the Consumer Price Index-Urban, U.S. City Average, All Items, as published by the United States Bureau of Labor Statistics. Notwithstanding the annual CPI-Urban increase permitted by this paragraph, no individual procedure in Delaware paid for through the workers' compensation system (as identified by HCPCS level 1 or level 2 code) shall be reimbursed at a rate greater than 200% of that reimbursed by the federal Medicare system, provided that radiology services may be reimbursed at up to 250% of the federal Medicare reimbursement and surgery services may be reimbursed at up to 300% of the federal Medicare reimbursement. The Workers' Compensation Oversight Panel may, without consent of the General Assembly and Governor, reduce reimbursements for any procedures it deems appropriate, but cannot increase reimbursements beyond the amounts permitted by this chapter.

(6) Upon adoption of the health-care payment system, an employer and/or insurance carrier shall pay the lesser of the rate set forth by the payment system or the health-care provider's actual charge. If an employer or insurance carrier contracts with a provider for the purpose of providing services under this chapter, the rate negotiated in any such contract shall prevail.

(7) The health-care payment system shall include provisions for health-care treatment and procedures performed outside of the State of Delaware. If any procedure, treatment or service is rendered by a health-care provider, hospital or ambulatory surgery center, who is licensed or permitted to render such procedure, treatment or service within the State of Delaware, but performs such procedure, treatment or service outside of the State of Delaware, the amount of reimbursement shall be the amount as set forth in the health-care payment system. In the event that a procedure, treatment or service is rendered outside the State of Delaware by a health-care provider, hospital or ambulatory surgery center, not licensed or permitted to render such procedure, treatment or service within the State of Delaware, the amount of reimbursement shall be the greater of:

a. The amount set forth in the workers' compensation health-care payment system or a fee schedule adopted by the state in which the procedure, treatment or service is rendered, if such a schedule has been adopted; or

b. The amount that would be authorized by the payment system adopted pursuant to this chapter if the service or treatment were performed in the geozip where the injury occurred or where the employee was principally assigned.

Charges for a procedure, treatment or service outside the State of Delaware shall be subject to the instructions, treatment guidelines, and payment guides and policies in the health-care payment system.

(8) Fees for nonclinical services, such as retrieving, copying and transmitting medical reports and records, testimony by affidavit, deposition or live testimony at any hearing or proceeding, or completion and transmission of any required report, form or documentation, and associated regulations and procedures for the determination of and verification of containment of fees, shall be developed and proposed by the Workers' Compensation Oversight Panel, and adopted as part of the health-care payment system. Such fees shall be revised periodically on the recommendation of the Panel to reflect changes in the cost of providing such services. Following the adoption of the initial health-care payment system, adjustments to fees for nonclinical services shall be adopted by regulation of the Department of Labor pursuant to Chapter 101 of Title 29. The nonclinical service fees adopted pursuant to this paragraph shall apply to all services provided after the effective date of the regulation, regardless of the date of injury.

(9) As part of the health-care payment system, the Workers' Compensation Oversight Panel shall adopt, recommend, and maintain a formulary and fee methodology for pharmacy services, prescription drugs and other pharmaceuticals. The formulary and fee methodology system developed by the Workers' Compensation Oversight Panel for pharmacy services, prescription drugs and other pharmaceuticals shall include a mandated discount from average wholesale price that shall be defined by the State, a ban on repackaging fees, and adoption of a preferred drug list.

76 Del. Laws, c. 1, § 11; 76 Del. Laws, c. 143, §§ 1, 2; 77 Del. Laws, c. 94, §§ 1-4; 78 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 391, § 1; 79 Del. Laws, c. 55, § 2; 79 Del. Laws, c. 312, § 2.;

Health care practice guidelines shall be developed in accordance with the following provisions:

(1) The Workers' Compensation Oversight Panel shall adopt, recommend and maintain a coordinated set of health-care practice guidelines and associated procedures to guide utilization of health-care treatments in workers' compensation, including but not limited to care provided for the treatment of employees by or under the supervision of a licensed health-care provider, prescription drug utilization, inpatient hospitalization and length of stay, diagnostic testing, physical therapy, chiropractic care and palliative care.

(2) The guidelines shall be, to the extent permitted by the most current medical science or other applicable science, based on well-documented scientific research concerning efficacious treatment for injuries and occupational disease. To the extent that well-documented scientific research concerning efficacious treatment is not available at the time of adoption or revision of the guidelines, the guidelines shall be based upon the best available information concerning national consensus regarding best health care practices in the relevant health care community.

(3) The guidelines shall, to the extent practical consistent with this section, address treatment of those physical conditions which occur with the greatest frequency (for services compensable under this chapter), or which require the most expensive treatments (for services compensable under this chapter), based upon currently available Delaware data.

(4) The guidelines shall contain a section guiding the utilization of prescription medications.

(5) Health-care practice guidelines may be based upon an existing model, already in use, to guide treatment of medical care for workers' compensation. Additional guidelines may be initially adopted, pursuant to the same criteria, to obtain coverage of areas or issues of treatment not included in other adopted guidelines. In no event shall multiple guidelines covering the same aspects of the same medical condition be simultaneously in force.

(6) Services rendered by any health-care provider certified to provide treatment services for employees shall be presumed, in the absence of contrary evidence, to be reasonable and necessary if such services conform to the most current version of the Delaware health-care practice guidelines. Services provided by health-care providers that are not certified shall not be presumed reasonable and necessary unless such services are preauthorized by the employer or insurance carrier, subject to the exception set forth in § 2322D(b) of this title. It is intended that these guidelines will be recommended to the Panel by Panel subcommittees in coordination with a qualified contractor with expertise in establishing treatment guidelines, developing the rules that define the use of such guidelines, and disseminating the guidelines in a manner that streamlines the delivery of health care.

(7) Health-care practice guidelines shall be subject to review and revision by the Workers' Compensation Oversight Panel on at least an annual basis. It is the intent of the General Assembly that the development of health-care guidelines will be recommended by a predominantly medical or other health-professional subcommittee, recognizing that health-care professionals are best equipped to determine appropriate treatment. It is further intended that subcommittees comprised of representatives from appropriate specialties will make comment and offer recommendations to the Workers' Compensation Oversight Panel.

76 Del. Laws, c. 1, § 12; 79 Del. Laws, c. 312, § 2.;

(a)(1) Certification shall be required for a health care provider to provide treatment to an employee, pursuant to this chapter, without the requirement that the health care provider first preauthorize each health care procedure, office visit or health care service to be provided to the employee with the employer or insurance carrier. The provisions of this subsection shall apply to all treatments to employees provided after the effective date of the rule provided by subsection (c) of this section, regardless of the date of injury. A health care provider shall be certified only upon meeting the following minimum certification requirements:

a. Have a current license to practice, as applicable;

b. Meet other general certification requirements for the specific provider type;

c. Possess a current and valid Drug Enforcement Agency ("DEA") registration, unless not required by the provider's discipline and scope of practice;

d. Have no previous involuntary termination from participation in Medicare, Medicaid or the Delaware workers' compensation system, which shall be determined to be inconsistent with certification under regulations adopted pursuant to subsection (c) of this section;

e. Have no felony convictions in any jurisdiction, under a federal-controlled substance act or for an act involving dishonesty, fraud or misrepresentation, which shall be determined to be inconsistent with certification under regulations adopted pursuant to subsection (c) of this section; and

f. Provide proof of adequate, current professional malpractice and liability insurance.

(2) The certification rules shall require that any health care provider to be certified agree to the following terms and conditions:

a. Compliance with Delaware workers' compensation laws and rules;

b. Maintenance of acceptable malpractice coverage;

c. Completion of State-approved continuing education courses in workers' compensation care every 2 years;

d. Practice in a best-practices environment, complying with practice guidelines and Utilization Review Accreditation Council ("URAC") utilization review determinations;

e. Agreement to bill only for services and items performed or provided, and medically necessary, cost-effective and related to the claim or allowed condition;

f. Agreement to inform an employee of that employee's liability for payment of noncovered services prior to delivery;

g. Acceptance of reimbursement and not unbundled charges into separate procedure codes when a single procedure code is more appropriate; and

h. Agreement not to balance bill any employee or employer. Employees shall not be required to contribute a copayment or meet any deductibles.

(b) Notwithstanding the provisions of this section, any health care provider may provide services during 1 office visit, or other single instance of treatment, without first having obtained prior authorization, and receive reimbursement for reasonable and necessary services directly related to the employee's injury or condition at the health care provider's usual and customary fee, or the maximum allowable fee pursuant to the workers' compensation health care payment system adopted pursuant to § 2322B of this title, whichever is less. The provisions of this subsection are limited to the occasion of the employee's first contact with any health care provider for treatment of the injury, and further limited to instances when the health care provider believes in good faith, after inquiry, that the injury or occupational disease was suffered in the course of the employee's employment. The provisions of this subsection shall apply to all treatments to injured employees provided after the effective date of the rule provided by subsection (c) of this section, regardless of the date of injury.

(c) Subject to the foregoing provisions, complete rules and regulations relating to provider certification shall be approved and proposed by the Workers' Compensation Oversight Panel. Regulations arising from the Panel's work shall be adopted by regulation of the Department of Labor pursuant to Chapter 101 of Title 29.

76 Del. Laws, c. 1, § 13; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 312, § 2.;

(a) The Workers' Compensation Oversight Panel is authorized and directed to approve, propose and maintain standard forms for the provision of health-care services pursuant to this chapter. Upon recommendation by the Workers' Compensation Oversight Panel, such forms and provisions governing their use shall be adopted by regulation of the Department of Labor, pursuant to Chapter 101 of Title 29. Forms authorized by this section shall provide for prompt initial report of an employee's condition upon the initial occurrence of injury treated pursuant to this chapter and upon reasonable intervals thereafter to report the conditions and limitations of an employee. At a minimum the initial reporting form shall provide for an outline of the physical capabilities of the employee in order to enable and encourage the injured employee to return to work at the highest level of capability.

(b) The health-care provider most responsible for the treatment of the employee's work-related injury shall complete and submit, as expeditiously as possible and not later than 10 days after the date of first evaluation or treatment, a report of employee condition and limitations, on a form adopted for that purpose pursuant to this section, and shall expeditiously provide copies of the report of employee condition and limitations to the employee, the employer and the employer's insurance carrier, if applicable. In the event that an employee is treated and released from the emergency department of a hospital, the health care provider most responsible for follow up care, if applicable, or the emergency room attending physician, shall provide the report of employee condition and limitations to the employee upon release, and the employee shall be responsible for provision of the report to the employer and the employer's insurance carrier, if applicable, within the time period provided by the rules adopted pursuant to this section.

(c) Every health -care provider shall prepare supplemental reports of employee condition and limitations on forms prescribed pursuant to this section, and shall expeditiously provide copies of the report of employee condition and limitations to the employee, the employer and the employer's insurance carrier, if applicable.

(d) Within 14 days of the issuance of an Agreement As To Compensation to an employee for any period of total disability, the employer shall provide to the health-care provider/physician most responsible for the treatment of the employee's work-related injury and to the employer's insurance carrier, if applicable, a report of the modified-duty jobs which may be available to the employee. The insurance carrier for an insured employer shall send to such employer the aforementioned report for completion, and shall be independently responsible for providing a completed report of modified-duty jobs to the health care provider/physician. The health-care provider portion of the employer's modified duty availability report must be signed and returned by the health-care provider within 14 days of the next date of service after receipt of the form from the employer, but not later than 21 days from the health-care provider's receipt of such form.

(e) Fees for completion, copying and transmission of the forms shall be maintained by the Workers' Compensation Oversight Panel. The employer or the employer's insurance carrier shall be liable for payment of the fee for all such reports of employee condition and limitations, provided however, that the employer or insurance carrier shall not be liable for any such reports, requested by an employee more frequently than once during each 3-month period.

76 Del. Laws, c. 1, § 14; 77 Del. Laws, c. 94, §§ 5, 6; 78 Del. Laws, c. 186, § 2; 79 Del. Laws, c. 55, § 3; 79 Del. Laws, c. 312, § 2.;

(a) Charges for medical evaluation, treatment and therapy, including all drugs, supplies, tests and associated chargeable items and events, shall be submitted to the employer or insurance carrier along with a bill or invoice for such charges, accompanied by records or notes, concerning the treatment or services submitted for payment, documenting the employee's condition and the appropriateness of the evaluation, treatment or therapy, with reference to the health care practice guidelines adopted pursuant to § 2322C of this title, or documenting the preauthorization of such evaluation, treatment or therapy. The initial copy of the supporting notes or records shall be produced without separate or additional charge to the employer, insurance carrier or employee.

(b) Charges for hospital services and items supplied by a hospital, including all drugs, supplies, tests and associated chargeable items and events, shall be submitted to the employer or insurance carrier along with a bill or invoice which shall be documented in a nationally recognized uniform billing code format, in sufficient detail to document the services or items provided, and any preauthorization of the services and items shall also be documented. The initial copy of the supporting medical notes or records shall be produced without separate or additional charge to the employer, insurance carrier or employee. Payment for hospital services, including payment for invoices rendered for emergency department services, shall be made within 30 days of the submission of a "clean claim" accompanied by notes documenting the employee's condition and the appropriateness of the evaluation, treatment or therapy.

(c) Preauthorized evaluations, treatments or therapy shall be paid at the agreed fee within 30 days of the date of submission of the invoice, unless the compliance with the preauthorization is contested, in good faith, pursuant to the utilization review system set forth in subsection (j) of this section below.

(d) Treatments, evaluations and therapy provided by a certified health care provider shall be paid within 30 days of receipt of the health care provider's bill or invoice together with records or notes as provided in this section, unless compliance with the health care payment system or practice guidelines adopted pursuant to § 2322B or § 2322C of this title is contested, in good faith, to the utilization review system set forth in subsection (j) of this section below.

(e) Denial of payment for health care services provided pursuant to this chapter, whether in whole or in part, shall be accompanied with written explanation of reason for denial.

(f) In the event that a portion of a health care invoice is contested pursuant to this section, the uncontested portion shall be paid without prejudice to the right to contest the remainder. The time limits set forth in this section shall apply to payment of all uncontested portions of health care payments.

(g) If, following a hearing, the Industrial Accident Board determines that an employer, an insurance carrier or a health care provider failed in its responsibilities under § 2322B, § 2322C, § 2322D, § 2322E or § 2322F of this title, it shall assess a fine of not less than $1,000 nor more than $5,000 for violations of said sections. Such fines shall be payable to the Workers' Compensation Fund.

(h) Prompt pay required for nonpreauthorized care. — An employer or insurance carrier shall be required to pay a health care invoice within 30 days of receipt of the invoice as long as the claim contains substantially all the required data elements necessary to adjudicate the invoice, unless the invoice is contested in good faith. If the contested invoice pertains to an acknowledged compensable claim and the denial is based upon compliance with the health care payment system and/or health care practice guidelines, it shall be referred to utilization review. Any such referral to utilization review shall be made within 15 days of denial. Unpaid invoices shall incur interest at a rate of 1% per month payable to the provider. A provider shall not hold an employee liable for costs related to nondisputed services for a compensable injury and shall not bill or attempt to recover from the employee the difference between the provider's charge and the amount paid by the employer or insurance carrier on a compensable injury.

(i) A health care provider referring an employee to, or encouraging an employee to utilize, any inpatient or outpatient facility or any medical or therapeutic practice, laboratory, diagnostic testing or radiological imaging machinery, equipment, practice or facility shall disclose to the employee any financial interest the health care provider has in such inpatient or outpatient facility, any medical or therapeutic practice, laboratory, diagnostic testing or radiological imaging machinery, equipment, practice or facility. The requirements of this subsection may be met by the prominent placement of a sign or signs in such health care provider's office identifying such affiliated equipment, practices or facilities.

(j) Utilization review. — The Workers' Compensation Oversight Panel shall approve, propose and maintain a utilization review program. The intent is to provide reference for employers, insurance carriers, and health-care providers for evaluation of health care and charges. The intended purpose of utilization review services shall be the prompt resolution of issues related to treatment and/or compliance with the health-care payment system or practice guidelines for those claims which have been acknowledged to be compensable. An employer or insurance carrier may engage in utilization review to evaluate the quality, reasonableness and/or necessity of proposed or provided health-care services for acknowledged compensable claims. Any person conducting a utilization review program for workers' compensation shall be required to contract with the Office of Workers' Compensation once every 2 years and certify compliance with Workers' Compensation Utilization Management Standards or Health Utilization Management Standards of Utilization Review Accreditation Council ("URAC") sufficient to achieve URAC accreditation or submit evidence of accreditation by URAC. If a party disagrees with the findings following utilization review, a petition may be filed with the Industrial Accident Board for de novo review. Complete rules and regulations relating to utilization review shall be approved, proposed and maintained by the Workers' Compensation Oversight Panel. Rules recommended by the Panel shall be adopted by regulation of the Department of Labor pursuant to Chapter 101 of Title 29.

(k) Coordination of health care payments.

(1) Upon notification to an employer that an employee is exercising that employee's rights under § 2304 of this title with respect to an injury or condition, the employer shall be exclusively responsible for treatment of that injury or condition to the extent that the employer is obliged to provide treatment under this chapter.

(2) An employee, as part of a notification that an employee will exercise rights under § 2304 of this title, shall notify the employer of all health insurance benefits that could compensate the employee for treatment of the injury or condition in question in the absence of coverage under this chapter. Such notification to the employer is intended to facilitate the notice provided for in paragraph (k)(4) of this section; the failure of an employee to provide such notice shall not waive or defeat any rights the employee may have under this chapter.

(3) An employee whose health care treatment for an injury or condition is being paid for pursuant to this chapter shall not be entitled to seek compensation from any other health insurance carrier for the same treatment. A health care provider who is being paid for treating an injury or condition pursuant to this chapter shall not seek compensation from any other health insurance carrier for the same treatment.

(4) At any time that a final determination is made that an employee is not entitled to health care treatment pursuant to this chapter, the employer shall notify any health insurance carrier of which it is aware pursuant to paragraph (k)(2) of this section of such a final determination.

(5) Notwithstanding any other provision of this chapter, if a final determination is made that an employee is not entitled to health care treatment pursuant to this chapter, the employee and/or the health care provider who provided said treatment may seek payment for such treatment from a health insurance carrier from which the employee had coverage applicable at the time of the injury or condition.

(6) Any time restrictions imposed upon an employee with respect to making claims against that employee's health insurance coverage for an injury or condition for which that employee initially sought treatment under this chapter shall be tolled until notification of the health insurance carrier under paragraph (k)(4) of this section.

(7) No requirements for preauthorization of treatment in any health insurance policy shall be the basis for denying payment of a claim submitted under paragraph (k)(5) of this section.

(8) With respect to claims submitted by an employee pursuant to paragraph (k)(5) of this section for treatment provided by a health care provider that had a contract with the health insurance carrier at the time of the treatment, reimbursement shall be at the contract rate.

(9) With respect to claims submitted by an employee pursuant to paragraph (k)(5) of this section for treatment provided by a health care provider that did not have a contract with the health insurance carrier at the time of the treatment, reimbursement shall be at the health insurance carrier's average contract rate for the same treatment with health care providers with whom it does have a contract.

(10) All claims submitted pursuant to paragraph (k)(5) of this section shall be entitled to treatment under Insurance Department Regulation 1310 [18 Del. Code Regs. § 1310] or any successor regulation relating to the prompt payment of health care claims by health insurance carriers.

(11) A health insurance carrier may deny payment of claims submitted under paragraph (k)(5) of this section for health care that it determines was not reasonable or necessary. However, an employee shall have the right to immediate appeal to an Independent Utilization Review organization under § 6416 of Title 18 for all such denials of treatment, with the cost of such appeal being borne by the health insurance carrier.

(12) A health care provider may not balance bill an employee for treatment for which the health care provider has been compensated under paragraph (k)(8) or (9) of this section.

(l) Balance billing prohibited.

(1) Any health care provider rendering services under this chapter shall be prohibited from billing or invoicing an employee, employer or insurance carrier for charges or expenses other than those authorized by this chapter and the health care payment system provided for herein. No health care provider rendering treatment or services under this chapter shall seek payment for charges from an employee except as authorized by this section.

(2) Billing procedures where compensability under this chapter is contested.

a. A provider may seek payment of the actual charges from the employee if the employer or insurance carrier notifies the provider that it does not consider the illness or injury to be compensable. If an employer notifies a provider that it will pay only a portion of a bill, the provider may seek payment of the unpaid portion from the employee up to the lesser of the actual charge, the negotiated rate, or the rate authorized by the payment system.

b. If an employee informs the health care provider that a claim is on file at the Department, the provider shall cease all efforts to collect payment from the employee.

c. While a claim concerning compensability is pending with the Department, a provider may notify an employee that the employee will be responsible for payment of unpaid invoices when the claim has been determined not to be compensable and the provider is able to resume collection efforts. Any such notice or reminder made under this subsection shall not be disclosed or otherwise provided to any credit agency. The provider may request information about the Department claim, and if the employee fails to respond or provide the information within 90 days, the provider shall be entitled to resume collection efforts directly and the employee may be determined liable for invoices as otherwise provided by law.

(3) Upon final award or settlement, a provider may resume efforts to collect payment from the employee and the employee shall be responsible for payment of any outstanding bills without regard to this section and as otherwise provided or authorized by law. If the service is found compensable, the provider shall not require a payment rate, excluding interest, greater than the lesser of the actual charge or payment level set by the payment system. The employee shall be responsible for payment for services found not covered or compensable unless agreed otherwise by the provider and employee. Services not covered or not compensable shall not be subject to the payment system.

76 Del. Laws, c. 1, § 15; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 94, §§ 7, 8; 79 Del. Laws, c. 312, § 2.;

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.

Code 1915, § 3193h; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 2; 32 Del. Laws, c. 186, § 1; Code 1935, § 6078; 44 Del. Laws, c. 201; 19 Del. C. 1953, § 2323; 50 Del. Laws, c. 267, § 2; 53 Del. Laws, c. 126, § 3; 55 Del. Laws, c. 83, § 2; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;

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.

Code 1915, § 3193j; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, § 2; 35 Del. Laws, c. 192, § 1; 37 Del. Laws, c. 239, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 45 Del. Laws, c. 297, § 1; 46 Del. Laws, c. 29; 47 Del. Laws, c. 160, § 1; 48 Del. Laws, c. 190, § 1; 19 Del. C. 1953, § 2324; 50 Del. Laws, c. 339, § 6; 50 Del. Laws, c. 465, § 2; 52 Del. Laws, c. 27; 57 Del. Laws, c. 520, § 1; 59 Del. Laws, c. 454, § 10; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;

For injuries resulting in partial disability for work, except the particular cases mentioned in § 2326(a)-(g) 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 percent 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.

Code 1915, §§ 139A, 3193j, 3193tt; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, §§ 2, 4; 35 Del. Laws, c. 192, § 1; 37 Del. Laws, c. 239, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 45 Del. Laws, c. 297, § 2; 47 Del. Laws, c. 160, § 2; 48 Del. Laws, c. 190, § 2; 19 Del. C. 1953, § 2325; 50 Del. Laws, c. 339, § 7; 52 Del. Laws, c. 45, § 1; 57 Del. Laws, c. 520, § 2; 61 Del. Laws, c. 515, § 1.;

(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 for 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 percent 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 percent 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 percent of the average weekly wage per week. If at the time of the injury the employee receives wages less than 22 2/9 percent 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.

Code 1915, § 3193j; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 44 Del. Laws, c. 202, §§ 2, 4; 45 Del. Laws, c. 298; 48 Del. Laws, c. 190, § 3; 19 Del. C. 1953, § 2326; 50 Del. Laws, c. 339, § 8; 50 Del. Laws, c. 465, § 1; 52 Del. Laws, c. 45, § 2; 54 Del. Laws, c. 280, § 2; 57 Del. Laws, c. 520, § 3; 58 Del. Laws, c. 251, § 1; 61 Del. Laws, c. 515, § 2; 70 Del. Laws, c. 172, §§ 4, 7; 70 Del. Laws, c. 186, § 1.;

(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 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.

(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.

Code 1915, § 3193j; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, § 2; Code 1935, § 6080; 43 Del. Laws, c. 269, § 8; 45 Del. Laws, c. 299, § 1; 46 Del. Laws, c. 30; 19 Del. C. 1953, § 2327; 58 Del. Laws, c. 531, § 6; 71 Del. Laws, c. 84, §§ 9, 12; 72 Del. Laws, c. 319, § 1.;

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.

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, § 2328.;

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 that proportion of the disability which is reasonably attributable solely to the occupational disease.

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, § 2329; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;

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

(1) To the child or children if there is no surviving spouse entitled to compensation, 66 2/3% of the wages of the deceased, with 10% additional for each child in excess of 2, with a maximum of 80% to be paid to their guardian;

(2) To the surviving spouse, if there are no children, 66 2/3% of wages provided that the minimum amount payable shall not be less than $15 per week;

(3) To the surviving spouse, if there is 1 child, 66 2/3% of wages;

(4) To the surviving spouse, if there are 2 children, 70% of wages;

(5) To the surviving spouse, if there are 3 children, 75% of wages;

(6) To the surviving spouse, if there are 4 or more children, 80% of wages;

(7) If there is no surviving spouse or children, then to the parents, or the survivor of them, if actually dependent upon the employee for at least 50% of their support at the time of the worker's death, 20% of wages;

(8) If there is no surviving spouse, children or dependent parent, then to the siblings, if actually dependent upon the decedent for at least 50% of their support at the time of the worker's death, 15% of wages for 1 sibling, and 5% additional for each additional sibling, with a maximum of 25%, such compensation to be paid to their guardian.

(b) The wages upon which death compensation shall be based shall not in any case be taken to exceed 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. However, the minimum amount payable to a surviving spouse entitled to compensation shall not be less than 22 2/9% of the said average weekly wage per week. Subject to § 2332 of this title, this compensation shall be paid during 400 weeks and in case of children entitled to compensation under this section, the compensation of each child shall continue after such period of 400 weeks until such child reaches the age of 18 years, or if enrolled as a full-time student in an accredited educational institution, until such child ceases to be so enrolled or reaches the age of 25 years, and in the case of a surviving spouse entitled to compensation under this section the compensation shall continue after such period of 400 weeks until the surviving spouse dies or remarries. Children are not entitled to compensation during the period that compensation is payable to their parent, except as provided in this section; provided, however, that the compensation for any child shall not be less than $10 per week unless the total maximum benefits are being paid.

(c) Compensation shall be payable under this section to or on account of any sibling only if and while such sibling is under the age of 18 years. Compensation shall be payable under this section to or on account of any child only if and while such child is under the age of 18 years, or if over 18 years and enrolled as a full-time student, until such time as such child ceases to be so enrolled or reaches the age of 25 years. Compensation shall be payable under this section to or on account of any child beyond the age of 18 years if and while mentally or physically handicapped and actually dependent upon the deceased for at least 50 percent of their support at the time of the worker's death.

(d) Compensation shall be payable under this section to a surviving spouse: (1) If living with deceased at the time of death; (2) if receiving or had the right to receive support at the time of death; (3) if deserted prior to and continued at the time of death; otherwise, compensation shall be distributed to the persons who would be dependents in case there was no surviving spouse.

(e) Compensation payable to the surviving spouse shall be for the use and benefit of such surviving spouse and of the dependent children, and the Board may from time to time apportion such compensation between them in such way as it deems best. The Board may require payments to be made directly to a minor who has been injured and may also require payments to be made to the person caring for any dependent minor, when, in the opinion of the Board, the expense of securing the appointment of a guardian would be disproportionate to the amount of compensation payable to such minor.

(f) If the compensation payable under this section to or on account of any person shall for any cause cease, the compensation of the remaining persons entitled thereunder shall thereafter be computed at the same rate as would have been payable to the remaining persons had they been the only persons entitled to compensation at the time of the death of the deceased, which computation shall be based upon the rates in effect at the time of the death of the deceased.

(g) Should any dependent of a deceased employee die, or should the surviving spouse remarry, the right of such dependent or such surviving spouse to compensation under this section shall cease. However, 2 years' indemnity benefits in 1 lump sum shall be payable to a surviving spouse upon remarriage.

Code 1915, § 3193k; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 4; Code 1935, § 6081; 43 Del. Laws, c. 269, § 9; 45 Del. Laws, c. 297, §§ 4, 5; 47 Del. Laws, c. 340, §§ 1-3; 19 Del. C. 1953, § 2330; 50 Del. Laws, c. 339, §§ 9-11; 56 Del. Laws, c. 385, § 1; 58 Del. Laws, c. 94; 59 Del. Laws, c. 454, § 14; 61 Del. Laws, c. 515, § 3; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1.;

If death results from the injury, the employer shall pay the reasonable burial expenses of an injured employee, not exceeding $3,500, but without deduction of any amount theretofore paid for compensation or medical expense, except that any bill for reasonable funeral expenses resulting from the death of an injured employee contracted for in an amount in excess of $3,500 may be approved by the Industrial Accident Board.

Code 1915, § 3193i; 29 Del. Laws, c. 233; Code 1935, § 6079; 43 Del. Laws, c. 269, § 7; 44 Del. Laws, c. 202, § 1; 19 Del. C. 1953, § 2331; 49 Del. Laws, c. 429, § 4; 50 Del. Laws, c. 339, § 12; 55 Del. Laws, c. 83, § 3; 70 Del. Laws, c. 141, § 1.;

Should the employee die as a result of the injury, no reduction shall be made for the amount paid for medical, surgical, dental, optometric, chiropractic or hospital services and medicines nor for the expense of last sickness and burial as provided in this chapter. Should the employee die from some other cause than the injury as herein defined, the claim for compensation shall not abate, but the personal representative of the deceased may be substituted for the employee and prosecute the claim for the benefit of the deceased's dependent or dependents only, but in the event an agreement for compensation or an award has theretofore been made, the full unpaid amount thereof shall be payable to the deceased employee's nearest dependent as indicated by § 2330 of this title and such payments may be made directly to a dependent of full age and on behalf of an infant to the statutory or testamentary guardian of any such infant, provided, however, that no payment or award under § 2324 or § 2325 of this title shall continue or be ordered beyond the date of such injured employee's death.

Code 1915, §§ 3193j, 3193tt; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 3; 32 Del. Laws, c. 186, § 4; Code 1935, §§ 6080, 6116; 37 Del. Laws, c. 239, § 2; 43 Del. Laws, c. 269, § 8; 19 Del. C. 1953, § 2332; 50 Del. Laws, c. 267, § 3; 54 Del. Laws, c. 280, § 3.;

(a) Compensation under this chapter to alien dependent surviving spouses and children not residents of the United States shall be 1/2 of the amount provided in each case for residents, and the employer may at any time commute all future installments of compensation payable to alien dependents not residents of the United States by paying to such alien dependents the then value thereof, calculated in accordance with § 2358 of this title. Alien parents, siblings not residents of the United States shall not be entitled to any compensation.

(b) Nonresident alien dependents may be officially represented by the consular officers of the nation of which such alien or aliens may be citizens or subjects and in such cases the consular officers may receive for distribution to such nonresident alien dependents all compensation awarded hereunder and the receipt of such consular officers shall be a full discharge of all sums paid to and received by them.

Code 1915, § 3193s; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 6; Code 1935, § 6089; 19 Del. C. 1953, § 2333; 70 Del. Laws, c. 172, § 8; 70 Del. Laws, c. 186, § 1.;

(a) Any person with a total disability on or after May 27, 1971, or any surviving spouse or dependent who is receiving benefits under § 2330 of this title, on or after May 27, 1971, shall be entitled to an additional amount of compensation as calculated under subsections (b) and (c) of this section, provided that the total amount to be received shall not exceed the maximum weekly benefit rate in § 2324 of this title effective on July 1, 1975, or the benefit derived from § 2330 of this title as of July 1, 1975.

(b) In any case where a person with a total disability, or a surviving spouse or a dependent is presently receiving the maximum weekly income benefit rate applicable at the time such award was made, the supplemental allowance shall be an amount which when added to such award would equal the maximum weekly benefit rate effective on July 1, 1975, or the benefit derived from § 2330 of this title as of July 1, 1975.

(c) In any case where a person with a total disability, or a surviving spouse or dependent is presently receiving less than the maximum weekly income benefit rate applicable at the time such award was made, the supplemental allowance shall be an amount equal to the difference between the amount the claimant is presently receiving and a percentage of the maximum weekly benefit rate effective on July 1, 1975, or the benefit derived from § 2330 of this title as of July 1, 1975, determined by multiplying it by a fraction, the numerator of which is the claimant's present award and the denominator of which is the maximum weekly rate applicable at the time such award was made.

19 Del. C. 1953, § 2334; 58 Del. Laws, c. 96, § 1; 58 Del. Laws, c. 311; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 201, §§ 1, 2; 79 Del. Laws, c. 371, § 15.;