Delaware Workers' Compensation
CHAPTER 23. WORKERS'
SUBCHAPTER I. GENERAL
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
(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
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.
wherever the context requires it includes surgical, medical and hospital
services, medicines and supplies and funeral benefits provided for in this
chapter. Nothing in this chapter shall be construed to require a worker
who in good faith relies on or is treated by prayer or spiritual means by
a duly accredited practitioner of a well-known church to undergo any
medical or surgical treatment, nor shall such worker or the worker's
dependents be deprived of any compensation payments to which the worker
would have been entitled if medical or surgical treatment were employed.
(6) "Death" when
mentioned as a cause for compensation under this chapter means death
resulting from violence to the physical structure of the body and its
resultant effect when reasonably treated and occurring within 285 weeks
after the accident, and compensable occupational diseases, as defined in
this section, arising out of and in the course of the employment, provided
that if death shall occur beyond 285 weeks after the accident, the Board
may consider such death as a cause for compensation when the Board has a
medical history on the case resulting from the payment of compensation for
the injury which is alleged to have caused the death.
(7) "Deductible clause"
shall mean a clause in an agreement between an employer and an insurer
that the employer shall be liable for a specified initial amount, per
occurrence or per employee, of each claim, loss or liability; but that the
insurer shall be liable for any excess liability up to and including the
maximum amount permitted by law.
(8) "Dependent" includes
all persons other than the injured employee who are entitled to
compensation under the elective schedule set forth in this chapter, and
wherever the context requires it, includes the personal representatives
and the surviving spouse of the deceased, and guardians of infants or
trustees for incompetent persons.
(9) "Employee" means,
every person in service of any corporation (private, public, municipal or
quasi-public), association, firm or person, excepting those employees
excluded by this subchapter, under any contract of hire, express or
implied, oral or written, or performing services for a valuable
consideration, excluding spouse and minor children of a farm employer
unless the spouse or minor child is a bona fide employee of a farm
employer and is named in an endorsement to the farm employer's contract of
insurance, and excluding any person whose employment is casual and not in
the regular course of the trade, business, profession or occupation of his
employer, and not including persons to whom articles or materials are
furnished or repaired, or adopted for sale in the worker's own home, or on
the premises not under the control or management of the employer. "Casual
employment," as used in this subdivision, means employment for not over 2
weeks or a total salary during the employment not to exceed $100 and,
subject to the above, repairs and maintenance of employer's regular
business shall not be construed as casual employment; except, however,
that everyone assigned to work under §§ 901-905 of Title 31 is
specifically designated an employee, notwithstanding any provisions of
this section to the contrary. Inmates in the custody of the Department of
Correction or inmates on work release who participate in the Prison
Industries Program or other programs sponsored for inmates by the
Department of Correction pursuant to Chapter 65 of Title 11 or other
applicable Delaware law shall not be considered employees of the State for
purposes of this title or otherwise be eligible for workers' compensation
benefits unless said inmate is employed by an employer other than the
State or a political subdivision thereof.
(10) "Employer" includes
all those who employ others unless they are excluded from the application
of this chapter by any provision of this subchapter, and if the employer
is insured, the term shall include the insurer as far as practicable;
employer shall also include the governing body for which employable relief
recipients are assigned work under §§ 901-905 of Title 31.
(11) "Executive officers"
means the president, any vice-president, secretary, treasurer or any other
executive officer elected and empowered by the board of directors in
accordance with the charter and the regularly adopted bylaws of the
(12) "Injury" and "personal
injury" mean violence to the physical structure of the body, such disease
or infection as naturally results directly therefrom when reasonably
treated and compensable occupational diseases and compensable ionizing
radiation injuries arising out of and in the course of employment.
(13) "Insurance carrier"
means any insurance corporation, mutual association or company or
interinsurance exchange which insures employers against liability under
this chapter or against liability at common law for accidental injuries to
(14) "Ionizing radiation"
means any particulate or electromagnetic radiation capable of producing
ions directly or indirectly in its passage through matter.
(15) "Personal injury
sustained by accident arising out of and in the course of the employment":
a. Shall not cover an employee
except while the employee is engaged in, on or about the premises where
the employee's services are being performed, which are occupied by, or
under the control of, the employer (the employee's presence being required
by the nature of the employee's employment), or while the employee is
engaged elsewhere in or about the employer's business where the employee's
services require the employee's presence as part of such service at the
time of the injury, provided, however, that participation in an approved
Travelink Traffic Mitigation Act program, created pursuant to subchapter
IV of Chapter 20 of Title 30, shall not be construed as meeting either
exception contained in this subsection; and
b. Shall not include any injury
caused by the wilful act of another employee directed against the employee
by reasons personal to such employee and not directed against the employee
as an employee or because of the employee's employment.
c. Shall, however, cover any
personal injury to an off-duty employee of the State of Delaware who
demonstrates by a preponderance of the evidence that the injury was the
result of an intentional act by a person associated with the employee in
that employee’s official capacity who committed the act because of that
association. It is an affirmative defense in the case of an off-duty
injury that the injured employee initiated the incident that resulted in
(16) "Services" and
"supplies" mean all treatments and apparatus, including glasses,
artificial members, shoes and other corrective appliances made necessary
by reason of the injuries sustained.
(17) "Wilful self-exposure
to occupational disease" includes :
a. Failure or omission to
observe such rules and regulations as may be promulgated and posted in the
plant by the employer tending to the prevention of occupational diseases;
b. Failure or omission to
truthfully state to the best of the employee's knowledge, in answer to
inquiry made by the employer, the location, duration and nature of
previous employment of the employee in which the employee was exposed to
any occupational diseases.
(18) "Department" means the
Department of Labor.
(19) "Hearing Officer"
means a Hearing Officer appointed pursuant to
of this title.
(20) “Immediate Family” means a parent, spouse, child or
sibling of a sole proprietor or partner.
§ 2301A. Industrial
(a) The Industrial
Accident Board is continued. It shall consist of 10 members, each of whom
shall be appointed by the Governor for a term of six years and confirmed
by the State Senate. The appointments shall be made so that there shall
always be on the Board two residents of New Castle County outside of the
City of Wilmington, one resident of the City of Wilmington, two residents
of Kent County, two residents of Sussex County and three members-at-large
residents of any of the subdivisions of the State, and not more than six
of said members shall be of the same political party.
(b) Each member of the
Board shall receive an annual salary of fifteen thousand dollars except
for the chairperson, who shall receive an annual salary of eighteen
thousand dollars. The members of the Board shall receive from the State
their actual and necessary expenses while traveling on the business of the
Board, but such expense shall be sworn to by the person who incurred the
expense, and any such person falsely making any such report shall be
guilty of perjury and punishable accordingly. The salary of the members
of the Board shall be paid in the same manner as the salaries of state
officers are paid.
(c) A majority of the
members of the Board shall constitute a quorum for the exercise of any of
the powers or authority conferred on the Board, except for hearings
conducted pursuant to this title, in which case two members of the Board,
shall constitute a quorum and a sufficient panel to decide such hearings.
Any disagreement involving a procedural issue arising before or after a
hearing may be decided by one member of the Board.
(d) The Board, any Board
panel, or any Board member empowered to decide any matter pursuant to Part
II of this title shall act in conformity with applicable provisions of the
Administrative Procedures Act set forth in chapter 101 of Title 29,
including, but not limited to, § 10129 of Title 29. Lawyers representing
clients before the Board shall act in conformity with applicable
provisions of The Delaware Lawyers’ Rules of Professional Conduct,
including, but not limited to, Rule 3.5 thereof. Disputes regarding
pre-hearing or post-hearing matters shall be presented by written motion
and decided by written order.
(e) The Governor shall
appoint the Board’s Chairperson from among the Board’s Members and the
Chairperson shall serve at the Governor’s pleasure in such capacity.
(f) The Administrator of
the Office of Workers’ Compensation shall perform all the administrative
duties of the Board, including but not limited to scheduling the docket,
maintaining the Board’s records, and providing the liaison between the
public and the Board members. The Department may employ such clerical and
other staff as it deems necessary.
(g) The Board shall have a
seal for authentication of its orders, awards and proceedings, upon which
shall be inscribed the words -- "Industrial Accident Board -- Delaware --
(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
(i) The Board shall have
jurisdiction over cases arising under Part II of this title and shall hear
disputes as to compensation to be paid under Part II of this title. The
Board may promulgate its own rules of procedure for carrying out its
duties consistent with Part II of this title and the provisions of the
Administrative Procedures Act. Such rules shall be for the purpose of
securing the just, speedy, and inexpensive determination of every petition
pursuant to Part II of this title. The rules shall not abridge, enlarge
or modify any substantive right of any party, and they shall preserve the
rights of parties as declared by Part II of this title.
§ 2301B. Hearing
(a) There is hereby
created within the Department of Labor the full-time position of Hearing
Officer. With respect to cases arising under Part II of this title, the
Hearing Officers shall have:
(1) All powers and duties
conferred or imposed upon such Hearing Officers by law or by the Rules of
Procedure for the Industrial Accident Board;
(2) The power to administer
oaths and affirmations;
(3) The power, with consent of
the parties, to hear and determine any pre-hearing matter pending before
the Board. In such circumstances, the Hearing Officer's decision has the
same authority as a decision of the Board and is subject to judicial
review on the same basis as a decision of the Board;
(4) The power, with consent of
the parties, to conduct hearings, including any evidentiary hearings
required by Part II of this title, and to issue a final decision
determining the outcome of such hearings. In such circumstances, the
Hearing Officer's decision has the same authority as a decision of the
Board and is subject to judicial review on the same basis as a decision of
(5) The Hearing Officer shall
have the responsibility for advising the Board regarding legal issues and
writing the Board's decision with respect to any hearing conducted by the
Board at which such Hearing Officer has been assigned by the Department.
The Hearing Officer shall not participate in the deliberations of the
Board with respect to the determination of matters before the Board or
vote on any matter to be decided by the Board but may be present during
such deliberations for the purpose of providing legal advice.
(6) With respect to any matter
to which they are assigned responsibility in accordance with Part II of
this title, the same authority as the Board would have to conduct or
dispose of such matter in accordance with Part II of this title and the
Board's Rules of Procedure. In such circumstances, any reference in Part
II of this title or the Board's Rules of Procedure to the Board shall also
refer to the Hearing Officer when such Hearing Officer is assigned
responsibility in accordance with Part II of this title.
(b) Hearing Officers shall
be appointed by the Secretary of Labor and shall serve for a term of five
years; provided, however, that the initial Hearing Officers may be
appointed to terms shorter than five years but not less than three years
to ensure staggered term expirations. Appointees shall be residents of
the State, shall be duly admitted to practice law before the Supreme Court
of this State, and shall not engage in the practice of law nor any
business, occupation, or employment inconsistent with the expeditious,
proper, and impartial performance of their duties. The number of Hearing
Officers from 1 major political party shall not exceed a majority of 1.
Individuals appointed as Hearing Officers shall under this section shall
take the oath or affirmation prescribed by Article XIV, §1 of the Delaware
Constitution before they enter upon the duties of their office.
(c) Hearing Officers
shall report to and be supervised by a Chief Hearing Officer, who shall be
designated by the Secretary of Labor. Reappointments shall be at the
discretion of the Secretary of Labor. The salary of a Hearing Officer
shall not be reduced during the term being served below the salary fixed
at the beginning of that term.
(d) The removal of a
Hearing Officer by the Secretary of Labor, after consultation with the
Chairperson of the Board, during the term of appointment may be made for
just cause. For the purposes of this subsection only, 'just cause' shall
be defined as including, but not limited to, reduction in force,
inefficiency, or unsatisfactory performance of duties. The employee may
contest the removal and file for binding arbitration and an arbitrator
will be appointed jointly by the Chairperson of the Merit Employees
Relations Board and the State Personnel Director to determine the matter.
§ 2301C. Workers'
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
§ 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
(b) To ensure public
accountability for the speedy, efficient, and just determination of the
matters before the Board, the Department of Labor shall conduct an annual
review of the effectiveness of the management of the Board's caseload.
Such annual review should be published on or before February 15 of each
year, and the Board shall be involved in the development of such annual
review. The review shall include:
(1) An analysis of the caseload
pending before the Board, including, but not limited to, an analysis of
dispositional speed, caseload backlog, number of continuances granted and
the grounds therefore, number of appeals and the reversal rate of the
Board, and compliance with hearing and decisional deadlines set forth in
Part II of this title or in Board rules, to ensure that the performance of
the Board as a whole can be evaluated by the General Assembly, the
Governor, and the public at large;
(2) An analysis of the caseload
pending before the Board, particularized as to the individual Hearing
Officers of the Board to ensure that the performance of such Hearing
Officers can be evaluated;
recommendations regarding methods, including, but not limited to,
legislative action and Board rule changes, to improve the performance of
the Board and Department in ensuring the speedy, efficient, and just
determination of matters before the Board.
(c) To ensure that the
annual review considers the perspectives of the diversity of Delawareans
interested in the effective performance of the Board, an advisory group is
hereby established to consult with the Department in its development of
the Department annual review. Such advisory group shall be appointed by
the Governor, shall be convened by the Secretary of Labor or his or her
designee, and shall consist of: the two Chairpersons of the respective
Labor Committees of each House of the General Assembly or their designees;
three representives of Delaware's business community; three
representatives of labor; two representatives of the Delaware Bar, one of
whom shall be primarily engaged in the representation of claimants before
the Board and one of whom shall be primarily engaged in the representation
of employers before the Board; and two members of the Board. The members
shall be appointed for a term of three years. Members shall receive no
§ 2302. Wages;
definition and computation; valuation of board and lodging.
(a) The term "wages" means
the money rate at which the service rendered is recompensed under the
contract of hiring in force at the time of the accident. It does not
include gratuities received from the employer or others or amounts
deducted by the employer under the contract of hiring for labor, material,
supplies, tools or other things furnished or paid for by the employer and
necessary for the performance of such contract by the employee.
(b) If the rate of wages
is fixed by the day or hour, the employee's weekly wages shall be taken to
be that rate times the number of days or hours in an average work week of
the employee's employer at the time of the injury. If the rate of wages
is fixed by the output of the employee, then the employee's weekly wage
shall be taken to be the employee's average weekly earnings for so much of
the preceding 6 months as the employee has worked for the same employer.
If, because of exceptional causes, such method of computation does not
ascertain fairly the earnings of an employee, then the weekly wage shall
be based on the average earnings for 6 months of an average employee of
the same or most similar employment.
(c) When no valuation is
fixed on board and lodging by the parties in the contract of hire or at
the time of hiring, the valuation for the purpose of computing
compensation shall be established as follows:
(1) For board-$15 per day
regardless of whether this applies to 1, 2, or 3 meals per day;
(2) For lodging-$15 per day or
(d) The term "wages" as
applied to employees assigned to work under the provisions of §§ 901-905
of Title 31, shall be determined by dividing the sum the employee is
entitled to receive per month relief, at the time of injury, by 4 1/3.
§ 2303. Territorial
application of chapter.
(a) If an employee, while
working outside the territorial limits of this State, suffers an injury on
account of which the employee, or in the event of the employee's death the
employee's dependents, would have been entitled to the benefits provided
by this chapter had such injury occurred within this State, such employee,
or in the event of the employee's death resulting from such injury the
employee's dependents, shall be entitled to the benefits provided by this
chapter, provided that at the time of such injury:
(1) The employee's employment
is principally localized in this State; or
(2) The employee is working
under a contract of hire made in this State in employment not principally
localized in any state; or
(3) The employee is working
under a contract of hire made in this State in employment principally
localized in another state whose workers' compensation law is not
applicable to the employee's employer; or
(4) The employee is working
under a contract of hire made in this State for employment outside the
United States and Canada.
(b) The payment or award
of benefits under the workers' compensation law of another state,
territory, province or foreign nation to an employee or the employee's
dependents otherwise entitled on account of such injury or death to the
benefits of this chapter shall not be a bar to a claim for benefits under
this chapter, provided that claim under this chapter is filed within 2
years after such injury or death. If compensation is paid or awarded
under this chapter:
(1) The medical and related
benefits furnished or paid by the employer under such other workers'
compensation law on account of such injury or death shall be credited
against the medical and related benefits to which the employee would have
been entitled under this chapter had claim been made solely under this
(2) The total amount of all
income benefits paid or awarded the employee under such other workers'
compensation law shall be credited against the total amount of income
benefits which would have been due the employee under this chapter had
claim been made solely under this chapter;
(3) The total amount of death
benefits paid or awarded under such other workers' compensation law shall
be credited against the total amount of death benefits under this chapter.
(c) If an employee is
entitled to the benefits of this chapter by reason of an injury sustained
in the State in employment by an employer who is domiciled in another
state and who has not secured the payment of compensation as required by
this chapter, the employer or the employer's carrier may file with the
Department a certificate, issued by the commission or agency of such other
state having jurisdiction over workers' compensation claims, certifying
that such employer has secured the payment of compensation under the
workers' compensation law of such other state and that with respect to
said injury such employee is entitled to the benefits provided under such
law. In such event:
(1) The filing of such
certificate shall constitute an appointment by such employer or the
employer's carrier of the Department as its agent for acceptance of the
service of process in any proceeding brought by such employee or the
employee's dependents to enforce the employee's or dependents' rights
under this chapter on account of such injury;
(2) The Department shall send
to such employer or carrier, by registered or certified mail to the
address shown on such certificate, a true copy of any notice of claim or
other process served on the Director by the employee or the employee's
dependents in any proceeding brought to enforce the employee's or
dependents' rights under this chapter;
(3)a. If such employer is a
qualified self-insurer under the workers' compensation law of such other
state, such employer shall, upon submission of evidence, satisfactory to
the Department, of its ability to meet its liability to such employee
under this chapter, be deemed to be a qualified self-insurer under this
b. If such employer's
liability under the workers' compensation law of such other state is
insured, such employer's carrier, as to such employee or the employee's
dependents only, shall be deemed to be an insurer authorized to write
insurance under and be subject to this chapter; provided, however, that
unless its contract with said employer requires it to pay an amount
equivalent to the compensation benefits provided by this chapter, its
liability for income benefits or medical and related benefits shall not
exceed the amounts of such benefits for which such insurer would have been
liable under the workers' compensation law of such other state;
(4) If the total amount for which such
employers' insurance is liable under paragraph (3) of this subsection is
less than the total of the compensation benefits to which such employee is
entitled under this chapter, the Department may, if it deems it necessary,
require the employer to file security, satisfactory to the Department, to
secure the payment of benefits due such employee or the employee's
dependents under this chapter; and
(5) Upon compliance with the
preceding requirements of this subsection, such employer, as to such
employee only, shall be deemed to have secured the payment of compensation
under this chapter.
(d) As used in this
(1) "United States" includes
only the states of the United States and the District of Columbia.
(2) "State" includes any state
of the United States, the District of Columbia, or any province of Canada.
(3) "Carrier" includes any
insurance company licensed to write workers' compensation insurance in any
state of the United States or any state or provincial fund which insures
employers against their liabilities under a workers' compensation law.
(4) A person's employment is
principally localized in this or another state when:
a. A person's employment
has a place of business in this or such other state and the person
regularly works at or from such place of business; or
b. If subparagraph a. of
this paragraph is not applicable, the person is domiciled and spends a
substantial part of the person's working time in the service of the
person's employer in this or such other state.
(5) Any employee whose duties require the
employee to travel regularly in the service of the employee's employer in
this and 1 or more other states may, by written agreement with the
employee's employer, provide that the employee's employment is principally
localized in this or another such state, and, unless such other state
refuses jurisdiction, such agreement shall be given effect under this
(6) "Workers' Compensation Law"
includes "Occupational Disease Law."
Compensation as exclusive remedy.
Every employer and employee,
adult and minor, except as expressly excluded in this chapter, shall be
bound by this chapter respectively to pay and to accept compensation for
personal injury or death by accident arising out of and in the course of
employment, regardless of the question of negligence and to the exclusion
of all other rights and remedies.
§ 2305. Exemption
from liability prohibited; exception.
No agreement, rule, regulation
or other device shall in any manner operate to relieve any employer or
employee in whole or in part from any liability created by this chapter,
except as specified in this chapter.
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
§ 2307. Same -
Domestic servants and farm laborers.
(a) This chapter shall not
apply to any person employed as a household worker in a private home or
household who earns less than seven hundred and fifty dollars in cash in
any 3 month period from a single private home or household and any person
employed as a casual worker in a private home or household who earns less
than seven hundred and fifty dollars in cash in any 3 month period from a
single private home or household.
(b) This chapter shall not
apply to farm laborers or to their respective employers unless such an
employer carries insurance to insure the payment of compensation to such
employees or their dependents.
§ 2308. Same -
Executive officers; sole proprietors and partners.
(a) Executive officers of
covered employers are included within this chapter; provided, however,
that as many as 8 officers who are stockholders of a corporation may be
exempted from this chapter if the corporation and the exempted corporate
officers agree in writing to such an exemption. Anyone or all of the
officers who elect an exemption shall for the purposes of § 2306 of this
title be considered employees.
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.
Members of the immediate family of a sole proprietor or partner are
included within this chapter; provided, however, that any such person may
be exempted from this chapter if he or she agrees in writing to such an
§ 2309. Same -
State, counties and political subdivisions.
This chapter shall not apply to
the State, any governmental agency created by it, each county, city, town,
township, incorporated village, school district, sewer district, drainage
district, public or quasi-public corporation or any other political
subdivision of the State that has 1 or more employees, official or
officer, whether elected or appointed unless proper authority is given by
an above named entity to elect to be covered by the application of this
§ 2310. Applicability
to persons engaged in interstate or foreign commerce.
This chapter shall not apply to
employees injured or killed while engaged in interstate or foreign
commerce or to their employers whenever the laws of the United States
provide for compensation or for liability for such injury or death.
§ 2311. Contractors,
subcontractors and lessees of motor
vehicles transporting passengers for hire as employers.
(a) No contractor or
subcontractor shall receive compensation under this chapter, but shall be
deemed to be an employer and all rights of compensation of the employees
of any such contractor or subcontractor shall be against their employer
and not against any other employer.
(b) Lessees transporting
passengers for hire in motor vehicles leased pursuant to written lease
shall not receive compensation under this chapter, but shall be deemed to
§ 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
(b) If the State elects
not to be covered by the application of this chapter, then any duly
organized volunteer fire company of the State may elect to be bound by the
compensatory provisions of this chapter, provided that the election
receives a majority vote of the members of the company at a duly called
meeting of the company, and notice of the election is forwarded in writing
to the Department. Any volunteer fire company which elects to be bound by
the compensatory provisions of this chapter may, subsequent to the
election, revoke the election provided the revocation receives a majority
vote of the members of the company at a duly called meeting of the company
and notice of the revocation is forwarded in writing to the Department.
(c) The wage of volunteer
firefighters on which compensation is based shall be the wage received in
the regular employment of such firefighters.
(d) For the purpose of
this section, "volunteer fire company" and "volunteer firefighters" shall
also include junior members, Auxiliary members, paid employees of
volunteer fire companies, volunteer ambulance companies of this State,
volunteer ambulance company members, paid employees of volunteer ambulance
companies and members of the University of Delaware Emergency Care Unit.
§ 2313. Record and
report of injuries by employers; penalty; admissibility as
(a) Every employer to whom
this chapter applies shall keep a record of all injuries, fatal or
otherwise, received by employees in the course of their employment.
Within 10 days after knowledge of the occurrence of an accident resulting
in personal injury, a report thereof shall be made in writing by the
employer to the Department in duplicate on blanks to be procured from the
Department for that purpose. The employer shall provide a copy of the
report of injury to the employee upon completion of the report. Upon the
termination of the disability of the injured employee, the employer shall
make a supplemental report to the Department.
(b) The reports shall
contain the name and nature of the business of the employer, the location
of the employer's establishment or place of work, the name, age, sex and
occupation of the injured employee and shall state the time, nature and
cause of the injury and such other information as may be required for
properly carrying out this chapter. The employee’s copy shall contain a
summary of the law as provided by the Department.
(c) Whoever, being an
employer, refuses or neglects to make a report required by this section
shall be fined not less than $100 nor more than $250 for each offense. In
the event the employer can show that the failure to make a report required
by this section was caused by the refusal of the insurance carrier for the
employer to report a reportable injury which the insurance carrier had
knowledge of and of which the employer had no knowledge, after written
request therefor, the aforementioned fine may be levied against said
insurance carrier. The fine shall be assessed by the Industrial Accident
Board after the employer and/or the insurance carrier for the employer is
given notice and a hearing on the violation. The fine shall be payable to
the Workers' Compensation Fund.
(d) Reports made in
accordance with this section shall not be evidence against the employer in
any proceedings under this chapter or otherwise but shall be exclusively
for the information of the Department in securing data to be used in
connection with the performance of their duties.
§ 2314. Defenses
unavailable in action for compensation.
In any action instituted by any
person to recover damages for personal injury sustained by an employee by
accident arising out of and in the course of employment within this State
or for death resulting from injury so sustained, it shall not be a defense
(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.
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
(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
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.
For purposes of this chapter, HAZMAT team members shall be treated
as State employees so long as the State elects to be covered by
application of this chapter.
(b) The wage of HAZMAT team members on
which compensation is based shall be the wage received in the regular
employment of such HAZMAT team members.
(c) For purposes of this
section, HAZMAT team members shall include all those persons designated as
HAZMAT response team members by the Department of Natural Resources and
Environmental Control and/or the State Fire School, and shall include
personnel employed by private industry.
(d) Covered incidents
shall include any incident where the HAZMAT team members are notified to
respond, including travel to and from the incident, the incident itself,
and cleanup after the incident, and any training exercises.
§ 2320. Subpoena
of witnesses; oaths; service of process; medical examination and
testimony; various fees.
At the request of any party,
subpoenas shall be issued under authority of the Department of Labor. The
party requesting the subpoena shall obtain a blank subpoena from the
Department and shall complete the necessary information.
(a) Every subpoena shall:
(1) state the name
of the Industrial Accident Board;
(2) state the
title of the action and the IAB hearing number;
(3) state the last
known address of the person(s) to be served;
(4) command each
person to whom it is directed to attend and give
testimony or to
produce and permit inspection and copying of designated
or tangible things in the possession, custody or control
of that person, or
to permit inspection of premises, at a time and place
(5) command each
person directed to give testimony, or to appear at
hearing or at
deposition at a time and place therein specified;
(6) identify the
name, address, and phone number of the person issuing
(7) state the
following in boldface:
object to this subpoena, you must immediately contact the
Labor, Office of Workers’ Compensation and request
a hearing to
present your objections. Objections may be made if the
fails to allow reasonable time for compliance; (b) requires
privileged or other protected matter and no exception or
applies; or (c) subjects a person to undue burden.”
(b) The following shall apply
to the service of a subpoena:
(1) A party
issuing a subpoena shall be responsible for service of the
subpoena and shall
provide a copy of the completed subpoena to the
(2) A subpoena may
be served by the Sheriff or by any person who is not a party and is not
less than 18 years of age or by certified/return receipt requested mail to
the last known address of the person listed on the subpoena
(3) Proof of
service when necessary shall be made by filing with the
Department of Labor
a statement of the date and manner of service and of
the names of the
(4) A party or an
attorney responsible for the issuance and service of a
subpoena shall take
reasonable steps to avoid imposing undue burden or
expense on a person
subject to that subpoena. The Board shall enforce this
duty and impose
upon the party or attorney in breach of this duty an
sanction, which may include, but is not limited to, lost earnings
and a reasonable
(c) Response to subpoena(s):
(1) A person
commanded to produce and permit inspection and copying
may object to the
inspection or copying of any or all designated materials
or of the
premises. If objection is made, the party serving the subpoena
may, upon notice to
the person commanded to produce, move at anytime
for an order to
(2) If a party
objects to a subpoena, they must immediately contact the
Department of Labor
and request a hearing before the Board to present the
Board may quash or modify a subpoena if it (a) fails to
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.
(3) A person
responding to a subpoena to produce documents shall
produce them as
they are kept in the usual course of business or shall
organize and label
them to correspond with the categories in the demand.
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
enable the demanding party to contest the claim.
(d) The Board may administer
oaths in any proceedings and in all other cases where it is necessary in
the exercise of its powers and duties. The Board may examine persons as
witnesses, take evidence, require production of documents and do all other
things conformable to law which are necessary to effectively discharge the
duties of office.
(e) Any process or order
of the Department or any notice or paper requiring service may be served
by any sheriff, deputy sheriff, constable or any employee of the
Department and return thereof made to the Department. Such officer
shall receive the same fees as are provided by law for like service in
civil actions, except that if service is made by an employee of the
Department, the employee shall not receive any fee but shall be paid the
employee’s actual expenses.
(f) If any person, in
proceedings before the Board disobeys or resists any lawful order or
process, misbehaves during a hearing or so near the place thereof as to
obstruct the hearing, neglects to produce after having been ordered to do
so any pertinent document, refuses to appear after having been subpoenaed
or upon appearing, refuses to take the oath as a witness or, after having
taken the oath, refuses to be examined according to law, the Board shall
certify the facts to any Judge of the Superior Court, who shall thereupon
hear the evidence as to the acts complained of. If the evidence so
warrants the Judge shall punish such person in the same manner and to the
same extent as for a contempt committed before the Superior Court, or
shall commit such person upon the same conditions as if the doing of the
forbidden act had occurred with reference to the process of or in the
presence of the Superior Court.
(g) The board may in any
case, upon the application of either party or on its own motion, appoint a
disinterested and duly qualified physician to make any necessary medical
examination of the employee and testify in respect thereto. Such medical
examination shall not be referred to as an “Independent Medical
Examination” or “IME” in any proceeding or on any document relating to a
matter under this Chapter; nor shall any examination, required by the
employer, by any other doctor, who is an employee of an insurance company,
or who is paid by an insurance company, or who is under contract to an
insurance company, be referred to as an “Independent Medical Examination”
or “IME.” The physician will be allowed a reasonable fee subject to the
approval of the Board, which fee shall be taxed as costs. “The Board may
impose a fine not to exceed $500.00 for each use of the term “Independent
Medical Exam” or “IME” in violation of this subsection.”
(h) Witness fees and
mileage shall be computed at the rate allowed to witnesses in the Superior
Court. Costs legally incurred may be taxed against either party or
apportioned between parties at the sound discretion of the Board, as the
justice of the case may require.
(i) Fees of physicians
for services under Part II of this title shall be subject to the approval
of the Board.
(j) Attorney's fee.
(1) A reasonable attorney's fee
in an amount not to exceed thirty percent of the award or ten times the
average weekly wage in Delaware as announced by the Secretary of Labor at
the time of the award, whichever is smaller, shall be allowed by the Board
to any employee awarded compensation under Part II of this title and taxed
as costs against a party.
(2) In the event an offer to
settle an issue pending before the Industrial Accident Board is
communicated to the claimant or the claimant's attorney in writing at
least 30 days prior to the trial date established by the Board on such
issue, and the offer thus communicated is equal to or greater than the
amount ultimately awarded by the Board at the trial on that issue, the
provisions of paragraph (1) of this subsection shall have no application.
If multiple issues are pending before the Board, said offer of settlement
shall address each issue pending, and shall state explicitly whether or
not the offer on each issue is severable. The written offer shall also
unequivocally state whether or not it includes medical witness fees and
expenses, and/or late cancellation fees relating to such medical witness
fees and expenses.
(k) Except as otherwise
provided in Part II of this title, all money or income received by the
Department or the Board from taxes, fees and/or operations and all other
sources whatsoever, directly or indirectly, shall be deposited to the
credit of the State Treasurer and shall be credited to the General Fund of
SUBCHAPTER II. PAYMENTS
FOR INJURIES OR DEATH AND INCIDENTAL BENEFITS.
§ 2321. Minimum
duration of incapacity.
Permanent injury relating to
hearing or vision loss, surgical, medical and hospital services, medicines
and supplies, and funeral benefits shall be paid from the first day of
injury. Beginning with the fourth day of incapacity, all compensation
otherwise provided by law shall be paid. If the incapacity extends to 7
days or more, including the day of injury, the employee shall receive all
compensation otherwise provided by law from the first day of injury.
§ 2322. Medical and
other services, and supplies as furnished by employer.
(a) During the period of
disability the employer shall furnish reasonable surgical, medical,
dental, optometric, chiropractic and hospital services, medicine and
supplies, including repairing damage to or replacing false dentures, false
eyes or eye glasses and providing hearing aids, as and when needed unless
the employee refuses to allow them to be furnished by the employer.
(b) If the employer, upon
application made to the employer, refuses to furnish the services,
medicines and supplies mentioned in subsection (a) of this section, the
employee may procure the same and shall receive from the employer the
reasonable cost thereof within the above limitations.
(c) Upon application made
to the Board by the injured employee or someone in the injured employee's
behalf, the Board may, at its discretion, require the employer to furnish
additional services, medicines and supplies of the kind mentioned in
subsection (a) of this subsection, as and when needed, for such further
period as it shall deem right and proper. The charges for such additional
services, medicines and supplies shall not exceed the rates regularly
charged to other individuals for like services and supplies, provided,
however, that the Board shall at all times have jurisdiction to determine
and shall determine the character of services and supplies to be
(d) An employee, at any
time after a claim for compensation is made, shall have the right, upon
application to the employee's employer, to inspect, copy and reproduce any
medical records pertaining to said employee in the possession of the
employee's employer or the employee's insurance carrier. Medical records,
as used in this subsection, shall include physician's reports, hospital
reports, diagnostic reports, treatment reports, X-rays and X-ray reports.
(e) The fees of medical
witnesses testifying at hearings before the Industrial Accident Board in
behalf of an injured employee shall be taxed as a cost to the employer or
the employer's insurance carrier in the event the injured employee
receives an award.
(f) Every insurance
carrier or self-insurer shall be required to replace or renew a defective
or worn out prosthesis for the life of the injured person without such
replacement or renewal constituting a new claim period.
(g) An employee shall be
entitled to mileage reimbursement in an amount equal to the State of
Delaware specified mileage allowance rate in effect at the time of travel,
for travel to obtain:
surgical, medical, dental, optometric, chiropractic, and
(2) Medicine and
supplies, including repairing and replacing damaged
eyes or eyeglasses, and providing hearing aids and prosthetic devices.
§ 2323. Selection of
physician, surgeon, dentist, optometrist or chiropractor by employee.
Any employee who alleges an
industrial injury shall have the right to employ a physician, surgeon,
dentist, optometrist or chiropractor of the employee's own choosing.
Notice of the employee's intention to employ medical aid as aforesaid
shall be given to the employee's employer or its insurance carrier or to
the Board. Notice that medical aid was employed as aforesaid shall be
given within 30 days thereafter to the employer or its insurance carrier
in writing. If the alleged injury is subsequently held to be compensable,
the employer shall be liable for the reasonable cost of the services of
any physician, surgeon, dentist, optometrist or chiropractor whose
employment was utilized by the employee provided notice of said employment
was given to the employer or its insurance carrier.
Compensation for total disability.
For injuries resulting in total
disability occurring after July 1, 1975, the compensation to be paid
during the continuance of total disability shall be 66 2/3% of the wages
of the injured employee, as defined by this chapter, but the compensation
shall not be more than 66 2/3% of the average weekly wage per week as
announced by the Secretary of the Department of Labor for the last
calendar year for which a determination of the average weekly wage has
been made, nor less than 22 2/9 % of the average weekly wage per week. If
at the time of the injury the employee receives wages of less than 22 2/9%
of the average weekly wage per week, then the employee shall receive the
full amount of such wages per week, as compensation. Nothing in this
section shall require the payment of compensation after disability ceases.
Compensation during partial disability.
For injuries resulting in
partial disability for work, except the particular cases mentioned in
subsections (a)-(g) of § 2326 of this title, the compensation to be paid
shall be 66 2/3 percent of the difference between the wages received by
the injured employee before the injury and the earning power of the
employee thereafter; but such compensation shall not be more than 66 2/3%
of the average weekly wage per week as announced by the Secretary of Labor
for the last calendar year for which a determination of the average weekly
wage has been made. This compensation shall be paid during the period of
such partial disability for work, not, however, beyond 300 weeks. In
construing the words "earning power of the employee thereafter" as those
words appear in this section, the Board shall take into consideration the
value of gratuities, board, lodging and similar advantages received by the
employee in subsequent employment.
§ 2326. Compensation
for certain permanent injuries.
(a) For all permanent
injuries of the following classes, the compensation to be paid regardless
of the earning power of the injured employee after the injury shall be as
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
The loss of the first phalange
of the thumb or any finger shall be considered to be equal to the loss of
one half of such thumb or finger and compensation shall be for one half of
the period, and compensation for the loss of one half of the first
phalange shall be one fourth of the period;
The loss of more phalanges than
1 shall be considered as the loss of the entire finger or thumb, provided,
however, that in no case shall the amount received for more than 1 finger
exceed the amount provided in this schedule for the loss of a hand;
The loss of 3 fingers or 2
fingers and a thumb of the same hand shall be considered as the loss of
one half of the hand, and compensation shall be paid for such loss for a
period of 110 weeks, or compensation shall be paid for the loss of 3
fingers or 2 fingers and a thumb of the same hand for the number of weeks
stated in the above schedule for such a loss, whichever is greater;
For the loss of a great toe, 66
2/3 percent of wages during 40 weeks;
For the loss of 1 of the toes,
other than the great toe, 66 2/3 percent of wages during 15 weeks;
The loss of the first phalange
of any toe shall be considered to be equal to the loss of one half of such
toe, and compensation shall be for one half of such period;
The loss of more phalanges than
1 shall be considered as the loss of the entire toe;
For the loss of an eye, 66 2/3
percent of wages during 200 weeks;
For the loss of a fractional
part of the vision of an eye, the compensation shall be for such
percentage of the total number of weeks allowed for the total loss of the
use of an eye under this section as the loss suffered bears to the total
loss of an eye.
(b) Amputation to the
ankle or any part of the foot, not including the toes, shall be considered
as the equivalent of the loss of a foot. Amputation above the ankle shall
be considered as the loss of a leg.
(c) Total loss of the use
of a hand, arm, foot, leg or eye shall be considered as the equivalent of
the loss of such hand, arm, foot, leg or eye.
(d) In all other cases of
permanent injury of the classes specified in subsection (a) of this
section, or when the usefulness of a member or any physical function is
permanently impaired, the compensation shall bear such relation to the
number of weeks stated in the schedule set forth in subsection (a) of this
section as the disabilities bear to those produced by the injury named in
(e) Unless the Board
otherwise determines from the facts, the loss of both hands, or both arms,
or both feet, or both legs, or both eyes, or an injury to the spine
resulting in permanent and complete paralysis of both legs, or both arms,
or 1 leg and 1 arm, or an injury to the skull resulting in incurable
imbecility or insanity, shall constitute total disability for work, to be
compensated according to § 2324 of this title.
Amputation between the palmar
surface of the hand and the shoulder shall be considered as the loss of an
arm, and compensation shall be paid for such injury for a period of 250
weeks. Amputation for 50 percent of the palmar surface of the hand shall
be considered as the loss of the hand and compensation shall be paid for a
period of 220 weeks.
(f) The Board shall
award proper and equitable compensation for serious and permanent
disfigurement to any part of the human body up to 150 weeks, provided that
such disfigurement is visible and offensive when the body is clothed
normally, which shall be paid to the employee at the rate of 66 2/3
percent of wages. In the event that the nature of the injury causes both
disfigurement to and loss or loss of use of the same part of the human
body, the maximum compensation payable under this subsection for that part
of the body shall be the higher of either (1) the amount of compensation
found to be due for disfigurement without regard to compensation for loss
of or loss of use, or (2) the amount of compensation due for loss of or
loss of use plus 20% thereof for disfigurement.
For the complete loss of
hearing of 1 ear, the employee shall receive compensation at the rate of
66 2/3 percent of wages for a period of 75 weeks.
For the complete loss of
hearing in both ears, the employee shall receive 66 2/3 percent of wages
for a period of 175 weeks.
For the loss of a fractional
part of hearing, the compensation shall be for such percentage of the
total loss of weeks allowed for the total loss of hearing under this
section as the loss suffered bears to the total loss of hearing.
(g) The Board shall award
proper and equitable compensation for the loss of any member or part of
the body or loss of use of any member or part of the body up to 300 weeks
which shall be paid at the rate of 66 2/3 percent of wages, but no
compensation shall be awarded when such loss was caused by the loss of or
the loss of use of a member of the body for which compensation payments
are already provided by the terms of this section.
(h) The compensation
provided for in subsections (a)-(g) of this section shall not be more than
66 2/3% of the average weekly wage per week as announced by the Secretary
of Labor for the last calendar year for which a determination of the
average weekly wage has been made, nor less than 22 2/9% of the average
weekly wage per week. If at the time of the injury the employee receives
wages less than 22 2/9% of the average weekly wage per week, then the
employee shall receive the full amount of such wages per week as
(i) Subject to
subsection (e) of this section, the compensation provided for in
subsections (a)-(h) of this section shall be paid in addition to the
compensation provided for in §§ 2324 and 2325 of this title.
§ 2327. Compensation
for subsequent permanent injury; special fund for payment.
(a) Whenever a subsequent
permanent injury occurs to an employee who has previously sustained a
permanent injury, from any cause, whether in line of employment or
otherwise, the employer for whom such injured employee was working at the
time of such subsequent injury shall be required to pay only that amount
of compensation as would be due for such subsequent injury without regard
to the effect of the prior injury. Whenever such subsequent permanent
injury in connection with a previous permanent injury results in total
disability as defined in § 2326 of this title, the employee shall be paid
compensation for such total disability, as provided in § 2324 of this
title, during the continuance of total disability, such compensation to be
paid out of a special fund known as "Workers' Compensation Fund."
Any insurance carrier desiring
reimbursement from the Fund shall file a petition with the Board for
payment, provided all claim for reimbursement shall be forever barred
unless the insurance carrier files a petition with the Department for
reimbursement for payments under this section within 2 years after the
date on which the employee was first paid total disability benefits
following the subsequent permanent injury.
This Act shall take effect on
July 1, 2001.
(b) This section shall
apply only to employers insured by insurance carriers. It shall not apply
to self-insured employers who shall be responsible for payment of their
own claims under this section and who shall not be eligible for further
reimbursement for payments made under this section after the effective
date of the Workers' Compensation Improvement Act of 1997. Awards to
self-insureds for reimbursements under this section are revoked as of the
effective date of the Workers' Compensation Improvement Act of 1997.
§ 2328. Compensation
for death or disability from occupational disease.
The compensation payable for
death or disability total in character and permanent in quality resulting
from an occupational disease shall be the same in amount and duration and
shall be payable in the same manner and to the same persons as would have
been entitled thereto had the death or disability been caused by an
accident arising out of and in the course of the employment.
In determining the duration of
temporary total and/or temporary partial and/or permanent partial
disability, and the duration of such payments for the disabilities due to
occupational diseases, the same rules and regulations as are applicable to
accidents or injuries shall apply.
§ 2329. Compensation
for disability resulting from occupational and other preexisting disease.
Whenever any disability from
which any employee is suffering following the contraction of a compensable
occupational disease is due in part to such occupational disease and in
part to a preexisting disease or infirmity, the Board shall determine the
proportion of such disability which is reasonably attributable to the
occupational disease and the proportion which is reasonably attributable
to the preexisting disease or infirmity and such employee shall be
entitled to compensation only for the proportion of the disability which
is reasonably attributable solely to the occupational disease
§ 2330. Compensation
(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 the 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