§ 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) “Department” means the Department of Labor.
(9) “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.
(10) “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 or her 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 paragraph, 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. Any person providing services as a sports official at a sports event in which the players are not compensated shall not be considered employees under this title. For purposes of this title “sports officials” includes an umpire, referee, judge, scorekeeper, timekeeper, organizer, or other person who is a neutral participant in a sports event. This exclusion does not apply to workers’ compensation claims against schools, associations of schools or other organizations sponsoring a sports contest where the claimant is a sports official who is a regular employee of such school, association of schools, or other organization sponsoring the sports contest.
(11) “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.
(12) “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.
(13) “Health-care provider” shall refer to any health-care provider who is licensed by the State of Delaware to provide health-care services, irrespective of whether the particular services provided under the Delaware workers’ compensation system are rendered within or outside the State.
(14) “Hearing officer” means a hearing officer appointed pursuant to § 2301B of this title.
(15) “Immediate family” means a parent, spouse, child or sibling of a sole proprietor or partner.
(16) “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.
(17) “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.
(18) “Ionizing radiation” means any particulate or electromagnetic radiation capable of producing ions directly or indirectly in its passage through matter.
(19) “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 a 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 paragraph; 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 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.
(20) “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.
(21) “Wilful self-exposure to occupational diseases” 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.
Code 1915, §§ 3193k, 3193w, 3193pp, 3193qq, 3193rr, 3193tt, 3193yy, 3193bbb, 3193ddd, 3193eee, 3193fff; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, §§ 1, 4, 9; 32 Del. Laws, c. 186, § 4; 33 Del. Laws, c. 206, §§ 1, 2; 35 Del. Laws, c. 193, §§ 1, 2; 37 Del. Laws, c. 44, § 1; Code 1935, §§ 6071, 6081, 6112-6116; 41 Del. Laws, c. 241, § 1; 42 Del. Laws, c. 185, § 1; 43 Del. Laws, c. 269, § 9; 46 Del. Laws, c. 50; 47 Del. Laws, c. 270; 19 Del. C. 1953, § 2301; 49 Del. Laws, c. 429, § 3; 50 Del. Laws, c. 339, § 1; 52 Del. Laws, c. 49, §§ 1, 2; 52 Del. Laws, c. 244, § 1; 55 Del. Laws, c. 83, § 1; 59 Del. Laws, c. 454, § 1; 63 Del. Laws, c. 250, §§ 1, 2; 67 Del. Laws, c. 160, § 5; 69 Del. Laws, c. 196, § 1; 70 Del. Laws, c. 172, §§ 3-5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 84, §§ 4, 5; 72 Del. Laws, c. 73, § 1; 72 Del. Laws, c. 185, § 1; 75 Del. Laws, c. 272, § 1; 80 Del. Laws, c. 124, § 1.;
§ 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 6 years and confirmed by the State Senate. The appointments shall be made so that there shall always be on the Board 2 residents of New Castle County outside of the City of Wilmington, 1 resident of the City of Wilmington, 2 residents of Kent County, 2 residents of Sussex County and 3 members-at-large residents of any of the subdivisions of the State, and not more than 6 of said members shall be of the same political party.
(b) Each member of the Board shall receive an annual salary of $24,000, except for the Chairperson, who shall receive an annual salary of $27,000. 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, 2 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 1 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 prehearing or posthearing 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 [§ 10101 et seq. of Title 29]. 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.
Code 1915, § 3193w; 29 Del. Laws, c. 233; 37 Del. Laws, c. 241, § 1; Code 1935, §§ 373A, 6093; 43 Del. Laws, c. 270, § 1; 48 Del. Laws, c. 150, § 1; 19 Del. C. 1953, §§ 2101-2106, 2121; 51 Del. Laws, c. 285, § 1; 52 Del. Laws, c. 56; 53 Del. Laws, c. 229, § 1; 54 Del. Laws, c. 240; 57 Del. Laws, c. 669, § 12; 58 Del. Laws, c. 531, §§ 1-3; 62 Del. Laws, c. 127, §§ 1, 2; 64 Del. Laws, c. 170, § 1; 65 Del. Laws, c. 469, § 1; 69 Del. Laws, c. 142, §§ 1, 2; 69 Del. Laws, c. 383, § 1; 70 Del. Laws, c. 172, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 315, § 1; 71 Del. Laws, c. 84, § 2; 75 Del. Laws, c. 89, § 301; 82 Del. Laws, c. 242, § 259.;
§ 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 prehearing 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 5 years; provided however, that the initial hearing officers may be appointed to terms shorter than 5 years, but not less than 3 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 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 Secretary of the Department of Human Resources 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 therefor, 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.
§ 2301E Data Collection Committee [Repealed].
§ 2302 Wages; definition and computation; valuation of board and lodging.
(a) “Average weekly wage” means the weekly wage earned by the employee at the time of the employee’s injury at the job in which the employee was injured, including overtime pay, gratuities and regularly paid bonuses (other than an employer’s gratuity or holiday bonuses) but excluding all fringe or other in-kind employment benefits. The term “average weekly wage” shall include the reasonable value of board, rent, housing or lodging received from the employer, which shall be fixed and determined from the facts in each particular case.
(b) The average weekly wage shall be determined by computing the total wages paid to the employee during the 26 weeks immediately preceding the date of injury and dividing by 26, provided that:
(1) If the employee worked less than 26 weeks, but at least 13 weeks, in the employment in which the employee was injured, the average weekly wage shall be based upon the total wage earned by the employee in the employment in which the employee was injured, divided by the total number of weeks actually worked in that employment;
(2) If an employee sustains a compensable injury before completing that employee’s first 13 weeks, the average weekly wage shall be calculated as follows:
a. If the contract was based on hours worked, by determining the number of hours for each week contracted for by the employee multiplied by the employee’s hourly rate;
b. If the contract was based on a weekly wage, by determining the weekly salary contracted for by the employee; or
c. If the contract was based on a monthly salary, by multiplying the monthly salary by 12 and dividing that figure by 52; and
d. If the hourly rate of earnings of the employee cannot be ascertained, or if the pay has not been designated for the work required, the average weekly wage, for the purpose of calculating compensation, shall be taken to be the average weekly wage for similar services performed by other employees in like employment for the past 26 weeks.
(3) In any event, the weekly compensation allowed shall not exceed the maximum or be less than the minimum provided by law.
Code 1915, § 3193uu; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 10; Code 1935, § 6117; 45 Del. Laws, c. 297, § 6; 19 Del. C. 1953, § 2302; 50 Del. Laws, c. 339, §§ 2, 3; 52 Del. Laws, c. 49, § 3; 70 Del. Laws, c. 96, § 1; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 1, § 5.;
§ 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 for 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 this 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 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 employer’s insurance is liable under paragraph (c)(3) of this section 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 employer 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 paragraph (d)(4)a. of this section 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.”
Code 1915, § 3193a; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 1; Code 1935, § 6071; 42 Del. Laws, c. 185, § 1; 19 Del. C. 1953, § 2303; 59 Del. Laws, c. 454, § 2; 70 Del. Laws, c. 172, §§ 3-5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 84, § 3; 71 Del. Laws, c. 422, § 1.;
§ 2304 Compensation as exclusive remedy.
Except as expressly excluded in this chapter and except as to uninsured motorist benefits, underinsured motorist benefits, and personal injury protection benefits, every employer and employee, adult and minor, 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.
Code 1915, § 3193g; 29 Del. Laws, c. 233; Code 1935, § 6077; 19 Del. C. 1953, § 2305.;
§ 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.
Code 1915, § 3193vv; 29 Del. Laws, c. 233; 33 Del. Laws, c. 206, § 3; 35 Del. Laws, c. 193, § 3; 36 Del. Laws, c. 253; Code 1935, § 6118; 41 Del. Laws, c. 243; 43 Del. Laws, c. 269, § 11; 19 Del. C. 1953, § 2306; 59 Del. Laws, c. 454, § 3; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 105, § 3.;
§ 2307 Applicability — 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 $750 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 $750 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.
Code 1915, § 3193vv; 29 Del. Laws, c. 233; 33 Del. Laws, c. 206, § 3; 35 Del. Laws, c. 193, § 3; 36 Del. Laws, c. 253; Code 1935, § 6118; 19 Del. C. 1953, § 2307; 52 Del. Laws, c. 244, § 2; 59 Del. Laws, c. 454, § 9; 60 Del. Laws, c. 156, § 1; 71 Del. Laws, c. 84, § 6.;
§ 2308 Applicability — 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 or as many as 4 individuals who are members of a limited liability company may be exempted from this chapter if the corporation and the exempted corporate officers or the limited liability company and the exempted members agree in writing to such an exemption. Anyone or all of the officers who are stockholders of a corporation or anyone or all members of the limited liability company 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 that person agrees in writing to such an exemption.
Code 1915, § 3193qq; 29 Del. Laws, c. 233; 33 Del. Laws, c. 206, § 2; 35 Del. Laws, c. 193, § 2; Code 1935, § 6113; 46 Del. Laws, c. 50, § 1; 19 Del. C. 1953, § 2308; 50 Del. Laws, c. 339, § 4; 64 Del. Laws, c. 92, § 1; 64 Del. Laws, c. 157, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 184, § 1; 72 Del. Laws, c. 185, § 2; 73 Del. Laws, c. 58, §§ 1, 2; 76 Del. Laws, c. 33, § 1.;
§ 2309 Applicability — 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.
Code 1915, § 3193vv; 29 Del. Laws, c. 233; 33 Del. Laws, c. 206, § 3; 35 Del. Laws, c. 193, § 3; 36 Del. Laws, c. 118, § 2; 36 Del. Laws, c. 252; 36 Del. Laws, c. 253; 37 Del. Laws, c. 100, § 2; 37 Del. Laws, c. 240, §§ 1, 2; 38 Del. Laws, c. 166, §§ 1, 2; 38 Del. Laws, c. 167, §§ 1, 2; Code 1935, §§ 6118, 6120; 43 Del. Laws, c. 269, § 11; 43 Del. Laws, c. 271, §§ 1, 2; 43 Del. Laws, c. 272, § 2; 43 Del. Laws, c. 273, §§ 1, 2; 48 Del. Laws, c. 165, § 2; 19 Del. C. 1953, § 2309; 59 Del. Laws, c. 454, § 4; 60 Del. Laws, c. 156, § 2.;
§ 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.
Code 1915, § 3193ww; 29 Del. Laws, c. 233; Code 1935, § 6119; 19 Del. C. 1953, § 2310.;
§ 2311 Contractors, subcontractors, independent contractors and lessees of motor vehicles transporting passengers for hire as employers.
(a) Notwithstanding any other provisions in this chapter, including but not limited to the definitions of “employer” and “employee” in § 2301 of this title, the following provisions shall apply to persons who are licensed as contractors under Chapter 25 of Title 30 or persons shown to be conducting business in a manner in which they should be so licensed:
(1) Any contractor or subcontractor shall be deemed to be an employer. Any and all rights of compensation of employees of contractors or subcontractors shall be against the employer contractor or subcontractor and not against any other employer.
(2) For purposes of this section, “independent contractor” shall mean any person not excluded from mandatory coverage under provisions of this chapter, who performs work or provides services for a contractor, subcontractor or other “contracting entity” in return for remuneration and/or other valuable considerations but who is not an employee of the contractor subcontractor or other “contracting entity” or any other person or entity with respect to the work performed or the services provided.
(3) For purposes of the section, “contracting entity” shall mean any commercial entity that obtains work or services from a person not excluded from mandatory coverage under provisions of this chapter and who is not an employee of the contracting entity or any other commercial entity with respect to the work performed or services provided.
(4) All independent contractors governed by this subsection shall be covered under this chapter. Independent contractors shall have an option to purchase coverage to satisfy this requirement, or alternatively shall be insured by the general contractor, subcontractor or other contracting entity for which they perform work or provide services. Actual remuneration of the independent contractor will be used to determine premium subject to the executive officer minimum and maximum payrolls approved by the Department of Insurance. Executive officers who are stockholders of a corporation and individuals who are members of a limited liability company may elect to be exempted from the above and this chapter, pursuant to and by complying with § 2308(a) of this title. However, for purposes of this subsection the exemption provided in § 2308(a) of this title for executive officers who are stockholders of a corporation shall be limited to no more than 4 executive officers. Partners and sole proprietors, when working in an independent contractor role, shall be subject to the requirements of this subsection and may not rely upon § 2308(b) and (c) of this title. This subsection applies to insurance policies issued or renewed on or after July 17, 2007.
(5) Any contracting entity shall obtain from an independent contractor or subcontractor and shall retain for 3 years from the date of the contract the following: a notice of exemption of executive officers or limited liability company members and/or a certification of insurance in force under this chapter. If the contracting entity shall fail to do so, the contracting entity shall not be deemed the employer of any independent contractor or subcontractor or their employees but shall be deemed to insure any workers’ compensation claims arising under this chapter.
(b) In all other types of commerce, the determination of employee or independent contractor status shall remain as before the adoption of subsection (a) of this section above and § 2308 of this title and the other provisions defining employees and persons not covered by this chapter shall apply.
(1) 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.
(2) Lessees transporting passengers for hire in motor vehicles leased pursuant to written leases 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.
Code 1915, § 3193vv; 29 Del. Laws, c. 233; 36 Del. Laws, c. 253; Code 1935, § 6118; 44 Del. Laws, c. 202, § 3; 46 Del. Laws, c. 28; 19 Del. C. 1953, § 2312; 64 Del. Laws, c. 412, § 1; 66 Del. Laws, c. 31, § 1; 69 Del. Laws, c. 210, § 1; 70 Del. Laws, c. 172, § 6; 70 Del. Laws, c. 303, § 1; 70 Del. Laws, c. 561, § 1; 71 Del. Laws, c. 84, § 7.;
§ 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.
Code 1915, § 3193x; 29 Del. Laws, c. 233; Code 1935, § 6094; 19 Del. C. 1953, § 2313; 54 Del. Laws, c. 280, § 1; 59 Del. Laws, c. 454, § 5; 70 Del. Laws, c. 95, § 1; 70 Del. Laws, c. 172, § 4; 71 Del. Laws, c. 84, §§ 3, 9, 10; 73 Del. Laws, c. 105, §§ 1, 2.;
§ 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 currently or previously 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.
(1) Every subpoena shall:
a. State the name of the Industrial Accident Board;
b. State the title of the action and the IAB hearing number;
c. State the last known address of the person(s) to be served;
d. 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;
e. Command each person directed to give testimony to appear at hearing or at deposition at a time and place therein specified;
f. Identify the name, address and phone number of the person issuing the subpoena;
g. 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 waiver applies; or (c) subjects a person to undue burden.”
(2) The following shall apply to the service of a subpoena:
a. 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.
b. 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.
c. 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.
d. 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.
(3) Response to subpoena(s):
a. 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 any time for an order to compel production.
b. 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 objection. The Board may quash or modify a subpoena if it:
1. Fails to allow reasonable time for compliance;
2. Requires disclosure of privileged or other protected matter and no exception or waiver applies; or
3. Subjects a person to undue burden.
c. 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.
d. 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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 for each use of the term “Independent Medical Exam” or “IME” in violation of this subsection.
(8) 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.
(9) Fees of physicians for services under Part II of this title shall be subject to the approval of the Board.
(10) Attorneys’ fee. — a. A reasonable attorneys’ fee in an amount not to exceed 30 percent of the award or 10 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. In order for the Board to award a fee under this section, counsel for an employee shall submit to the Board an Attorneys’ Fee Affidavit in a form prescribed by or substantially in compliance with Board rules, along with a copy of the written fee agreement signed by the employee. Any fee awarded to an employee under this paragraph shall be applied to offset the fees that would otherwise be charged to the employee by that employee’s attorney under the fee agreement.
b. 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 (10)a. of this section 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.
c. Attorneys shall have written fee agreements to represent employees. Fee arrangements shall be governed by the rules of the Supreme Court concerning professional conduct.
d. If the fee agreement provides for a percentage of recovery, the attorney may collect the percentage at the time of payment of lump sums of accrued benefits. Any such fee shall be offset by fees paid by the employer or carrier as a result of agreement or Board order relating to that monetary amount.
e. An attorney shall not collect a fee from ongoing checks issued by the workers’ compensation fund while a petition for review is pending.
f. An attorney shall not collect the fee from ongoing weekly benefit checks except in the following circumstance and as approved by the Board in paragraph (10)g. of this section:
1. Where the attorney certifies in an affidavit that the case is not economically viable for an attorney to agree to represent the employee without fees being deducted from ongoing weekly benefits and that the employee is likely to not be able to obtain the services of an attorney without paying a fee in such manner;
2. With the application the attorney shall submit a proposed fee agreement that limits the overall fee in that case to an amount equal to or less than the fee authorized in paragraph (10)a. of this section;
3. The application shall also contain an affidavit of the employee that the employee understands the fee arrangement, wants to be represented, and requests the Board authorize the arrangement, and further states whether and when the employee has been declined representation by other attorneys without approval under this paragraph.
g. When an attorney files an application to collect fees from the ongoing checks of an employee in accordance with the preceding paragraph (10)f. of this section, the designated hearing officer shall, within 10 days of receipt of the written request, respond in writing with an approval or denial. The response of the hearing officer shall be sent to the attorney upon disposition of the request. Upon notice of approval or denial of the request, that decision is a final decision of the Board.
h. Attorneys for employees may take such action as is necessary to comply with domestic support garnishment orders, or any other valid court orders, requiring sums be deducted from ongoing benefit checks.
(11) 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.