Delaware Construction Accident Lawyer: Workers' Comp and Third-Party Claims

Construction work in Delaware carries risks most jobs do not: falls from ladders, scaffolds and roofs, trench collapses, equipment rollovers, falling materials, electrical contact and crashes in highway work zones. When a construction worker is hurt, two kinds of claims may be available. Workers' compensation pays benefits no matter who was at fault. A separate injury claim may be possible against a company other than your employer whose negligence caused the accident.

This page explains both, the deadlines that apply, and what to do after a construction injury in Delaware. It is general information, not legal advice about your case.

The Sharma Law Firm represents injured construction workers across Delaware, including Spanish-speaking workers. Our paralegals Santiago Araujo, Humberto Buitrago and Isaac Durango Figueroa speak Spanish. Hablamos español. Aman Sharma, Esq. is a Delaware attorney, Delaware Bar ID No. 5706. Call (302) 781-3077 at any hour. Office meetings are by appointment at our 8 Delaware offices.

Common construction injuries

• Falls from scaffolds, ladders, roofs, lifts and unprotected edges
• Being struck by falling tools, materials or loads from cranes
• Caught-in and crush injuries involving machinery, trenches or collapsing structures
• Electrical injuries and burns
• Forklift, skid steer and heavy equipment accidents
• Work zone crashes when a driver enters a highway construction area
• Back, shoulder and knee injuries from lifting and repetitive work

Serious construction injuries can include fractures, spinal cord injuries, brain injuries and amputations. See our Delaware catastrophic injury lawyer page for how those claims account for long-term costs.

Workers' compensation for construction workers

Delaware's Workers' Compensation Act, Title 19, Chapter 23, requires employers and employees to pay and accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence. That is 19 Del. C. § 2304. In most cases it also means an injured worker cannot sue their own employer for negligence; workers' compensation is the remedy against the employer.

Benefits under the Act

• Medical care. Under 19 Del. C. § 2322, the employer must furnish reasonable surgical, medical, hospital and related services, medicine and supplies.
• Total disability. Under 19 Del. C. § 2324, compensation for total disability is 66 2/3% of the injured employee's wages, subject to a weekly maximum tied to the state average weekly wage.
• Partial disability. Under 19 Del. C. § 2325, a worker who can return to lower-paying work may receive 66 2/3% of the difference between prior wages and earning power after the injury, for up to 300 weeks.
• Permanent injury. 19 Del. C. § 2326 sets a schedule for the permanent loss or loss of use of body parts and for disfigurement.

Notice and filing deadlines

Two deadlines in the Act matter from the first day:

• Notice to the employer. Under 19 Del. C. § 2341, unless the employer has actual knowledge of the injury, the employee must give notice within 90 days after the accident, or compensation may not be due. Report the injury to your supervisor in writing as soon as you can.
• Claim deadline. Under 19 Del. C. § 2361, a claim for compensation for an injury is barred unless, within 2 years after the accident, the parties have agreed on compensation or a petition has been filed with the Industrial Accident Board. For occupational diseases, a petition must generally be filed within 1 year after the employee first knew or should have known the disability was caused by employment.

If the employer or its insurer denies a claim, a petition can be filed with the Industrial Accident Board, part of the Delaware Department of Labor, which holds hearings in Wilmington and Dover. Our Delaware workers' compensation lawyer page covers the workers' comp process in more detail.

Third-party claims: when someone other than your employer is responsible

Construction sites often have many companies working at once: a general contractor, several subcontractors, equipment suppliers, property owners and delivery drivers. If a company or person other than your employer caused the accident, you may be able to bring an injury claim against them in addition to workers' compensation.

Under 19 Del. C. § 2363, accepting workers' compensation benefits is not an election of remedies. The injured employee may also proceed against a third party for damages. Depending on the facts, third parties can include:

• A general contractor or another subcontractor whose crew created a hazard
• The manufacturer of a defective ladder, scaffold, harness, power tool or machine
• A property owner who controlled the site and knew of a dangerous condition
• A driver who crashed into a work zone or struck a worker on a job site

A third-party claim can include losses workers' compensation does not pay, such as pain and suffering and the full amount of lost wages. Section 2363 also provides that any recovery from the third party, after the expenses of recovery, first reimburses the employer or its workers' compensation insurer for amounts paid or payable to that date. Planning for that reimbursement is part of evaluating any settlement.

If OSHA inspected the site after the accident, its inspection findings and any citations issued to a contractor can be part of the evidence in a third-party claim. A citation does not by itself decide who is legally responsible, but it can help show which safety rules applied and whether they were followed.

Third-party claims are subject to Delaware's general two-year deadline for personal injury claims under 10 Del. C. § 8119, and to modified comparative negligence under 10 Del. C. § 8132, which reduces recovery by the injured person's share of fault. Deadlines vary by claim. Talk to us before assuming you have time.

Immigration status and injured workers

Workers often ask whether they can bring a claim if they are not citizens. Questions about immigration status are sensitive, and the answer depends on the facts and the type of claim. We keep these conversations confidential, and our Spanish-speaking paralegals can help you talk through your situation. We do not give immigration advice; if you need it, we will tell you so.

What to do after a construction accident

1. Get medical care and tell the provider the injury happened at work.
2. Report the injury to your employer in writing. Keep a copy with the date.
3. Photograph the scene and the equipment involved, if you can safely do so, or ask a coworker.
4. Write down who was there, including workers from other companies on the site.
5. Keep your pay records, including overtime and second jobs, since benefits are based on wages.
6. Do not sign statements or settlement papers from an insurer until you understand them.
7. Talk to a Delaware lawyer about both workers' compensation and any third-party claim.

How we handle construction accident cases

We look at the injury from both directions at once. On the workers' compensation side, we make sure notice was given, benefits start, and any dispute is presented to the Industrial Accident Board. On the third-party side, we identify every company on the site, preserve equipment and records, and review contracts and inspection history to find who was responsible for the condition that caused the injury. Coordinating the two claims helps protect the net amount you keep.

Fees

Workers' compensation cases are handled on a contingency fee basis. For a third-party injury claim arising from the same accident, we explain the fee and how case costs are handled at your free case review, before you decide anything.

Frequently asked questions about Delaware construction accidents

Can I sue my employer after a construction accident in Delaware?

In most cases, no. Under 19 Del. C. § 2304, workers' compensation is the remedy against your employer regardless of fault. You may still have a claim against a third party whose negligence caused the accident.

Can I get workers' compensation and sue a third party at the same time?

Yes. Under 19 Del. C. § 2363, accepting workers' compensation benefits does not prevent a claim against a third party, though the employer or its insurer is reimbursed from the third-party recovery.

How long do I have to report a work injury in Delaware?

Unless your employer already knows, notice must be given within 90 days after the accident under 19 Del. C. § 2341. Report it as soon as possible, in writing.

How long do I have to file a workers' compensation claim?

Generally within 2 years after the accident under 19 Del. C. § 2361, unless compensation has been agreed. Occupational disease claims have a different rule.

What if I was a subcontractor's employee hurt by the general contractor's crew?

You would usually receive workers' compensation through your own employer, and you may have a third-party claim against the general contractor. The contracts and site control matter, so it is worth a review.

What if a driver crashed into the work zone where I was working?

Workers' compensation covers the work injury, and you may also have a claim against the driver and that driver's insurance.

Do you speak Spanish?

Yes. Our paralegals Santiago Araujo, Humberto Buitrago and Isaac Durango Figueroa speak Spanish. Hablamos español.

Free construction accident case review

Call (302) 781-3077 any time, or use the case review form on this page. Submitting the form does not create an attorney-client relationship.