22.21 Damages – Worker’s Compensation Benefits

Worker’s Compensation Benefits

You have heard testimony about the worker’s compensation benefits that [plaintiff’s name] has received.  You should not consider the fact that some of the medical expenses and lost wages that [he/she] claims in this lawsuit have been paid through worker’s compensation because [plaintiff’s name] has a legal obligation to repay this compensation from any money that you might award in this case.  On the other hand, if [he/she] does not recover in this case, there is no obligation for [plaintiff’s name] to reimburse.

{Comment: The collateral source rule does not apply to worker’s compensation payments relevant to a claim for damages arising from medical negligence.  See 18 Del. C. ‘ 6862.}


19 Del. C. ‘ 2363(e); Duphily v. Delaware Elec. Coop., Inc., 662 A.2d 821, 834-35 (1995); State v. Calhoun, Del. Supr., 634 A.2d 335, 337-38 (1993); Cannon v. Container Corp. of Am., Del. Supr., 282 A.2d 614, 616 (1971); but see Baio v. Commercial Union Ins. Co., Del. Supr., 410 A.2d 502, 507-08 (1979)(in case where employer, or employee’s carrier, has a conflict of interest with injured worker pursuing a right of subrogation, principles of equity apply and carrier’s right of subrogation may be waived).

Credit: Delaware Superior Court