Delaware vs. Pennsylvania Concurrent Jurisdiction: Are You Maximizing Your Workers’ Comp Claim?

John Doe calls your law office the Tuesday morning after Labor Day Weekend. John explains that he was working over the holiday weekend as a roofer when he fell off the roof of a building in Pennsylvania and badly fractured his bilateral wrists. He was rushed to the local hospital, where they performed extensive surgery on his fractured wrists, which included plates/screws and left both wrists with visible scarring and disfigurement. John explains that he makes $18.00/hour and works 40 hours/week. John also explains that he was hired in Delaware, his company is based out of Delaware, and he usually works in Delaware, but was sent to Pennsylvania to perform this specific roofing project.

Before agreeing to retain John for this work accident, you should determine whether Delaware or Pennsylvania will provide John with the most benefits to maximize his recovery. Unfortunately, most attorneys do not thoroughly investigate their client’s workers’ compensation claims. Knowing the facts of concurrent jurisdiction allows experienced attorneys to accurately advocate for their clients.


Jurisdiction

Delaware has jurisdiction in a workers’ compensation case if the work accident occurred in Delaware. However, Delaware also has jurisdiction under 19 Del. C. Section 2303 if:

1. The employee’s employment is principally localized in Delaware; or

2. The employee is working under a contract of hire made in Delaware in employment not principally localized in any state; or

3. The employee is working under a contract of hire made in Delaware 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 Delaware for employment outside the United States and Canada.

John was injured in Pennsylvania, but was hired out of Delaware and his employer is principally localized in Delaware. Before accepting this as a Pennsylvania workers’ compensation case, you should consider whether Delaware or Pennsylvania will maximize John’s available workers’ compensation benefits.


Delaware Rights Your Client may be Entitled to:


1. Disability Benefits

Your wage rights under the workers’ compensation laws in Delaware are based on your average weekly wage (generally determined by averaging the past 26 weeks of your gross wages before the work accident). Workers’ compensation total disability wage benefits pay 2/3 of your average weekly wage, tax free, up to a limit of $747.66. This benefit is designed to replace your wages when you are unable to work for 3 or more days due to your work injury. This benefit is also available on a partial basis if your doctor restricts your work hours or work duties, which results in you earning lower wages.

In Pennsylvania, the maximum total disability limit is $1,081.00 per week. Pennsylvania calculates disability benefits on a sliding scale, whereas Delaware uses 2/3 of an injured employee’s average weekly wage.

It is important to consider if your client is above Delaware’s maximum disability rate, as the Pennsylvania maximum limit is higher than Delaware’s limit. Your client may not be able to pay his/her mortgage payments, electric bills, phone bills, etc. if he/she receives $747.66/week rather than $1,081.00/week.


2. Medical Benefits

If you are injured in the course and scope of your employment, you are entitled to medical benefits for the rest of your life as long as the treatment is reasonable, necessary and causally related to the work injury, and your Delaware caregiver is also certified under the Workers’ Compensation Statute (if you see an out-of-state doctor, they do not have to be certified under the Workers’ Compensation Statute). A list of certified providers can be found on the Department of Labor’s website.

The worker’s compensation insurance company must pay at least one medical bill every 5 years in order to keep this benefit active!


3. Mileage

You are entitled to mileage reimbursement of forty cents ($0.40) per mile, roundtrip for your doctor’s appointments.


4. Scarring/ Disfigurement

When choosing between Delaware and Pennsylvania, consider the extent and location of your client’s scarring. In Delaware, any scar and/or disfigurement that is visible when properly clothed can be awarded a monetary settlement. The amount of the settlement is determined by the location, size and visibility of the scar. Also, if you walk with a limp as a result of your work injury, or need to use any devices permanently (crutches, wheelchair, etc.) you may also qualify for this benefit.

In Pennsylvania, scarring and disfigurement is only awarded a monetary settlement when it is above the clavicle.


5. Permanent Partial Impairment

If your work injury is permanent, you may be entitled to a lump sum payment. The amount of this recovery is based on a formula which takes into account the part of your body that was injured, your percentage of impairment and your workers’ compensation rate of pay. This can be a substantial amount of money and does not impact other workers’ compensation benefits.


The Differences:


The decision of which state to bring the workers’ compensation claim is fact dependent. If your client has significant scarring and disfigurement, as well as a significant permanent partial impairment, it may be beneficial to bring the claim in Delaware. If your client is a high wage earner (well above the Delaware max) and does not have significant scarring, disfigurement or permanent partial impairment, it may be beneficial to bring the claim in Pennsylvania.

Under Delaware law, John will be able to receive a monetary settlement for his scarring and disfigurement that he will not be able to obtain under Pennsylvania law (since the scarring/disfigurement is below the clavicle). Most importantly, John will be able to receive a monetary settlement for his permanent partial impairment in Delaware, which is not available under Pennsylvania law. Given these specific facts, it may be more beneficial to pursue John’s claims under Delaware law.


If you have a case that has concurrent jurisdiction in Delaware and Pennsylvania, it is crucial to speak with experienced attorneys from both states to determine which state’s laws will maximize the injured worker’s benefits.

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