The Brandywine River played an important role in the rights bestowed upon injured workers in the First State. Initially, cotton mills were constructed along the Brandywine River, and so began the industrialization of Delaware. Following the success of the cotton mills, eventually gunpowder mills were also built on the Brandywine and, just like the cotton mills, they capitalized on all the benefits the Brandywine had to offer. Where there is gunpowder, there is sure to be an explosion. That is exactly what happened in Delaware in 1818 when 33 people were killed in an explosion at one of the gunpowder mills on the Brandywine. The workers' families killed at the gunpowder mill explosion were never properly compensated for the loss of life they endured. It was clear that a proper system of compensation for work injury and illness was sorely needed, but unfortunately for the mill workers, it was not established until much, much later.

With the rise of industrialization in Delaware, so too rose the incidence of severe and fatal injuries sustained on the job. Early on, injured workers sought compensation through the court system for their injuries. Employers at that time often (successfully) challenged these claims on grounds of assumption of the risk or comparative negligence, thereby eliminating the possibility of recompense for the injured worker. Conversely, if an injured worker was successful in their claim, there was no limit to the amount of damages that could be awarded to them. As a compromise between the employers and employees, the workers' compensation system was established which capped the awards payable to the injured worker and also eliminated the requirement that the worker prove that the employer acted negligently.

The Delaware workers' compensation system has evolved over the years to now encompass seven basic rights bestowed by statute upon those unfortunate enough to sustain a work injury or fatality. The gatekeeper of those benefits is the statute of limitations. In Delaware, an employee has two years from the date of injury for the claim to be acknowledged and agreed upon by the employer. Once accepted, a five-year statute of limitations applies. This five-year statute of limitations is renewed for five additional years from the date that any workers' compensation payment is made. Therefore, as long as the claim is accepted timely during the first two years following the injury, and at least one benefit is paid every five years thereafter, Delaware workers' compensation benefits can potentially last a lifetime.

Delaware workers are now afforded the following rights:

• Medical Benefits

Injured Delaware workers are entitled to medical benefits for the rest of their lives as long as the treatment is reasonable, necessary and related to the work injury, and their Delaware doctor is certified with the workers' compensation system. There are two exceptions to the certification requirement: if the doctor holds an out-of-state medical license; or, for emergent treatment immediately following the injury.

Medical benefits are paid according to a fee schedule, which takes into account reasonable charges for the doctor's geographic location. Employers often insist that the bills be in the standard HCFA format, and, of course, be accompanied by the treatment notes.

Employers may challenge the reasonableness of treatment through a process called "utilization review." In this process, an independent reviewer compares the treatment rendered to the established treatment guidelines. If the treatment is in compliance with the treatment guidelines, it passes muster and is certified as such. If the treatment is not in compliance, it is deemed noncompliant. The treating physician is issued a copy of the decision of the independent reviewer, and so begins a 45-day appeal period. If the doctor (or the claimant's attorney) does not appeal an adverse decision within 45 days from issuance, that decision is final and binding. Likewise, the employer also has 45 days to challenge a decision indicating that the treatment is compliant with the treatment guidelines.

• Temporary Total Disability

Temporary total disability benefits are payable to injured workers when they are determined to be completely incapacitated from any and all work for a temporary period of time. The workers' compensation rate of pay is based on the average weekly wage the worker earned in the six months prior to the injury. Temporary total disability benefits are paid at the rate of two-thirds of the pre-injury average weekly wage, up to a maximum of $725.89 per week. This maximum payment rate is updated annually every July.

Employers routinely challenge the reasonableness of a claimant's ongoing total disability entitlement by way of filing a petition for review of compensation agreement. Once the petition for review is filed, the employer is no longer required to pay disability benefits to the injured worker. Instead, a state of Delaware fund called the "second injury fund" begins to pay the claimant at the same rate they were being paid prior to the petition for review being filed. The claimant receives these benefits through the hearing date, and until such time as a decision is rendered by the Department of Labor Industrial Accident Board. If the claimant is successful at this hearing and the temporary total disability benefits are ordered to continue being paid, the employer must reimburse the state of Delaware for all benefits paid to the claimant by the second injury fund. If the claimant is unsuccessful at the hearing, and the temporary total disability benefits are terminated, the claimant is not required to repay the second injury fund.

• Temporary Partial Disability Benefits

Temporary partial disability benefits are available to injured workers who are able to work but, because of their injuries have restrictions on the hours they can work or on the degree of physical labor they can perform which reduces their earnings. Temporary partial disability pays the injured worker two-thirds of the difference between their pre-injury average weekly wage and their weekly earnings while working with restrictions.

Partial disability benefits are only available to injured workers for 300 weeks over the life of the claim.

• Mileage

Claimants are entitled to mileage reimbursement of 40 cents per mile, roundtrip for physical therapy, doctor appointments, diagnostic testing and other medical treatment and procedures. Claimants are also entitled to mileage reimbursement to attend the second and all subsequent defense medical examinations.

• Scarring/Disfigurement

Claimants who have sustained a permanent scar as a result of their work injury are entitled to disfigurement compensation as long as the scar is visible when the claimant is dressed in a bathing suit or something similar. The amount of the settlement is determined by the location, size and visibility of the scar as well as the claimant's testimony about whether the disfigurement causes them anxiety or embarrassment in social situations. Altered gait or the use of a cane, crutches or similar device as a result of the work injury may also qualify the claimant for disfigurement benefits.

• Permanent Partial Impairment

When a claimant's injury becomes permanent, generally one year following the onset of injury or one year following surgery, the claimant may qualify for a permanent injury rating under the American Medical Guides to Permanent Disability. Each injury is evaluated and rated by the examiner separately as a percentage of impairment to each injured body part. The percentage of impairment is then used in a calculation that takes into account the claimant's workers' compensation rate of pay, the result of which is a lump sum payment to the claimant.

This benefit is not a "once and done" type of award. It is possible for a claimant to receive an award of these benefits with respect to the same injury more than once, depending on whether their permanent impairment increases over time.

• Permanent Total Disability

Unfortunately, not every injured worker is able to return to the workforce. In the case of severe or catastrophic injuries, a claimant may be declared permanently and totally disabled. If that is the case, the claimant will continue to receive weekly total disability pay for the rest of their lives.

Over the years, Delaware workers' compensation benefits have evolved from the initial common law tort doctrines of negligence, assumption of the risk and contributory negligence, to present-day statutes reviewed and revised to meet the needs of the citizens of the state of Delaware. Some of the Delaware workers' compensation benefits are better than those offered in the surrounding states, and others are not. Consideration of not only in what state the work injury occurred, but also where the employee was hired and where the employer's offices are located must be taken into account in any decision regarding the most appropriate jurisdiction in which to file a claim. Delaware may be considered to be the "Small Wonder," but our workers' compensation system has made giant strides since the days of the cotton and gunpowder mills.

Heather Long is the first female partner in the Newark office of Kimmel, Carter, Roman, Peltz & O'Neill, a Delaware personal injury and workers' compensation firm. Her practice is focused on assisting plaintiffs with workers' compensation, personal injury, nursing home negligence, medical malpractice and premises liability claims.