Del. Code 19, § 2353 : Labor — Workers' Compensation — Determination And Payment Of Benefits; Procedure — Forfeiture or suspension of right to compensation

Current through 2016 Legislative Session, Act 399

(a) If the employee refuses reasonable surgical, medical and hospital services, medicines and supplies tendered to the employee by the claimant's employer, the claimant shall forfeit all right to compensation for any injury or any increase in the claimant's incapacity shown to have resulted from such refusal. Reasonable medical services shall include, if the Board so finds, vocational rehabilitation services offered by any public or private agency.

Where rehabilitation services require residence at or near the public or private agency away from the employee's customary residence, reasonable costs of board, lodging and travel shall be paid for by the employer. Refusal to accept rehabilitation services pursuant to order of the Board shall result in a loss of compensation for each week of the period of refusal.

(b) If any employee be injured as a result of the employee's own intoxication, because of the employee's deliberate and reckless indifference to danger, because of the employee's wilful intention to bring about the injury or death of the employee or of another, because of the employee's wilful failure or refusal to use a reasonable safety appliance provided for the employee or to perform a duty required by statute, the employee shall not be entitled to recover damages in an action at law or to compensation or medical, dental, optometric, chiropractic or hospital service under the compensatory provisions of this chapter. The burden of proof under this subsection shall be on the employer.

(c) If an injured employee refuses employment procured for the employee and suitable to the employee's capacity, the employee shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Board such refusal was justifiable.

(d) If an employee is receiving benefits, or claims to be eligible for benefits, for total or partial disability under § 2324 or § 2325 of this title, those benefits may be suspended by agreement or order of the Board under the following conditions and for only so long as those conditions apply:

(1) While an employee is incarcerated by the State of Delaware, after an adjudication of guilt;

(2) While an employee is incarcerated by another state or other government subdivision of another state authorized to operate a penal facility, after an adjudication of guilt; or

(3) While an employee is incarcerated by the federal government, after an adjudication of guilt.

(e) If the parties do not agree that a suspension condition applies, the party attempting to cease or begin benefits may file a petition for the matter to be adjudicated. Certified proof of conviction and incarceration as specified above from the responsible government entity, filed with the Board upon opposition to suspension of benefits, shall create a rebuttable presumption that benefits may be suspended unless countered by the filing with the Board of certified proof of release, parole, commutation of sentence or pardon. Work release or similar conditional release will not counter the presumption. The employer may suspend benefits until the hearing once the rebuttable presumption has been raised until countered or the Board adjudicates the matter.

(f) The employee shall give notice to the employer or insurance carrier when a period of suspension agreed to or ordered by the Board ends. At that time the employee shall provide medical certification that the disability continues. If the parties cannot agree to a specific date on which the suspension shall be lifted and benefits are to commence or recommence, either party may file a petition to have the Board adjudicate the issue.

(g) This section shall not prohibit an employee from collecting any other benefits due for other periods or types of benefits. An employee may collect from the Board Fund during a period for which a petition is pending under this section to stop paying benefits unless the above described rebuttable presumption is raised.

Del. C. § 2353

Code 1915, §§ 3193h, 3193jj, 3193nn; 29 Del. Laws, c. 233; 30 Del. Laws, c. 203, § 1; 32 Del. Laws, c. 186, § 1; Code 1935, §§ 6078, 6106, 6110; 19 Del. C. 1953, § 2353; 50 Del. Laws, c. 267, § 5; 58 Del. Laws, c. 529, § 2; 59 Del. Laws, c. 454, § 7; 70 Del. Laws, c. 172, § 4; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 1, § 19.;