BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §2302, Title 19 of the Delaware Code, by deleting subparagraph (b) in its entirety and inserting in lieu thereof the following:

"(b) The rate of wages shall be determined by computing the total wages paid to the worker during the twenty-six weeks immediately preceding the date of injury and dividing by twenty-six, provided that:

1. If the worker worked less than twenty-six weeks in the employment in which the worker was injured, the average weekly wage shall be based upon the total wage earned by the worker in the employment in which the worker was injured, divided by the total number of weeks actually worked in that employment;
2. If a worker sustains a compensable injury before completing his first work week, the average weekly wage shall be calculated as follows:

1. If the contract was based on hours worked, be determining the number of hours for each week contracted for by the worker multiplied by the worker’s hourly rate;
2. If the contract was based on a weekly wage, by determining the weekly salary contracted for by the worker; or
3. If the contract was based on a monthly salary, by multiplying the monthly salary by twelve and dividing that figure by fifty-two; and

Section 2. Amend §2322(a), Title 19, of the Delaware Code, by inserting at the end of subparagraph (a) the following:

Section 3. Amend §2377(c), Title 19 of the Delaware Code, by deleting the words 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 furnished.and by inserting in lieu thereof the following:

" amounts specified in the fee schedules adopted pursuant to section 2322.5

Section 4. Amend §2322.5 Chapter 23, Title 19 of the Delaware Code by adding a new §2322A to read as follows:

"§2322A. Maximum Fees and Reimbursement Rates.

No later than January 1, 2003, the board shall adopt a schedule of maximum fees for medical treatment that shall not exceed 113 percent of fees prescribed in the most current medicare resource based relative value scale system applicable to Delaware as prepared by the united states department of health and human services. The board shall also adopt a hospital fee schedule setting maximum hospital reimbursement rates at 113 percent of the most current medicare reimbursement rates for Delaware. the board shall update these maximum fee schedules on each succeeding January 1 to incorporate the most recent medicare reimbursement formulas."

Section 5. Amend §2323, Title 19 of the Delaware Code, by deleting that section in its entirety and replacing in lieu thereof the following:

"Section 2323. Selection of physician, surgeon, dentist, optometrist or chiropractor.

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 from a list supplied by the employer of at least five physicians or other duly licensed practitioners of the healing arts authorized to treat under this chapter. Notice of the employee’s intention to employ medical aid as aforesaid shall be given to the employee’s employer or its insurance carrier and 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 subject to the limits in section 2322 provided notice of said employment was given to the employer or its insurance carrier."

Section 6. Amend §2326(a), Title 19 of the Delaware Code, by inserting at the end of subparagraph (a) the following:

"Except for injuries subject to (e), loss resulting from injuries to the entire spine shall receive 66 2/3 percent of wages for a period not to exceed a total of 300 weeks."

Section 7. Amend §2327, Title 19 of the Delaware Code by adding a new subparagraph (c) to read as follows:

"(c) No petition for payment regarding a subsequent permanent injury shall be accepted by the workers’ compensation fund on or after the enactment of this subsection.

Section 8. Amend § 2343.5 Chapter 23, Title 19 of the Delaware Code by adding a new section 2343A to read as follows:

"2343A Physician form.

The board shall adopt a form to accompany any submission from the treating physician regarding disability. The form shall require the treating physician to report specific physical restrictions and remaining physical capabilities."

Section 9. Amend §2344, Title 19 of the Delaware Code, by adding a new (c) to read as follows.

"(c) Prior to acceptance of a claim or the reaching of an agreement, an employer may notify the employee and board that it will make provisional payment while it determines whether to accept or deny the claim. notice shall be provided on a form adopted by the board. provisional payment shall be without prejudice and shall not be an admission of liability."

Provisional payment shall commence within 15 days of the issuance of the notice and may continue for up to 90 days. the employer shall on a form adopted by the board notify the employee and board within 5 days of terminating provisional payment

The notice shall specify whether termination of provisional payment is because the employer is denying the claim, accepting the claim or because agreement has been reached."

Section 10. Amend §2346, Title 19 of the Delaware Code, by inserting between the words "necessary" and ", provided" the following:

" subject to the fee schedule maximums,".

Section 11. Amend §2347 Title 19 of the Delaware Code, by deleting that section and replacing it with the following:

"On the application of any party in interest on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred or that the status of the dependent has changed, the Board may at any time, but not oftener than once in 6 months, review any agreement or award.

On such review, the Board may make an award ending, diminishing, increasing or renewing the compensation previously agreed upon or awarded, and designating the persons entitled thereto, subject to this chapter, and shall state its conclusions of facts and rulings of law. The Department shall immediately send to the parties a copy of the award by personal delivery or by registered mail.

This section shall not apply to payments under §2358 of this title.

Compensation payable to an employee, under this chapter, may be suspended, terminated or modified by the employer upon the filing of a petition alleging that the employee is able to return to work and is capable of earning any wages. Such petition must be accompanied by the supporting affidavit of a physician, on a form prescribed by the Department, based on an examination made within fifteen days of the filing of the petition. If the employee disagrees with the proposed suspension, termination or modification, the employee must give written notice of the disagreement to the Department and the employer within seven days after receipt of the notice of intent to suspend, terminate or modify benefits. If the Department and employer do not receive a notice of disagreement, compensation shall be suspended, terminated or modified, as the case may be. Upon receipt of the notice of disagreement, the Department shall immediately notify the parties by telephone or other means, and attempt to resolve the disagreement. If the Department is unable to resolve the disagreement within ten days of the receipt of the notice of disagreement, the matter shall be set for hearing. An employer shall not be required to continue payment of benefits in accordance with the notice of compensation payable for more than thirty days following its original notice to the employee of its intent to suspend, terminate or modify the notice of compensation payable."

Section 12. Amend §2350 Title 19 of the Delaware Code, by inserting between the words "appeals" and "The Court" the following:

(a) " Every appeal shall specify those portions of the decision being appealed with specific references to the findings of fact and conclusions of law being appealed."

Section 13. Amend §2357, Title 19 of the Delaware Code, by deleting that section in its entirety and replacing in lieu thereof the following:

"§2357 Collection of Payments in Default.

If default is made by the employer for 30 days in benefits for lost wages or permanency and the employer has no reasonable basis to believe that benefits are not due, the board shall order the benefits paid and may award a civil penalty not to exceed 20 percent of the benefits in default."

Section 14. Amend §23258, Title 19 of the Delaware Code by deleting the Title and replacing it with the following:

"§2356 Commutation of compensation and compromise and release."

Section 16. Amend §2362, Title 19 of the Delaware Code, by deleting subparagraph (b) in its entirety and replacing it with the following:

"(b) All medical expenses shall be paid within 30 days after bills and all documentation and records relating to said expenses are received by the employer or its insurance carrier for payment, unless the carrier or self-insured employer notifies claimant or his or her attorney in writing that said expenses are contested or that further verification is required. Notification of the health care provider shall be deemed notice to the claimant.

Author: Senator Adams