Atty. Benjamin K. Durstein
As a member of the Workers' Compensation Department, Ben represents employers, insurance carriers and third-party administrators in defense of workers' compensation claims before the Industrial Accident Board and Delaware courts. Ben earned his Bachelor of Arts degree from the University of Delaware in 2007, and went on to receive his juris doctor from Widener University School of Law in 2012.
Workers Compensation Defense Attorney · Serving Wilmington, DE · 13+ Years Experience
Profile Summary
About Benjamin K. Durstein at a Glance
Benjamin K. Durstein is a Shareholder based in Wilmington, Delaware, practicing at Marshall Dennehey. They have 13+ years of legal experience, licensed to practice since 2013. Their practice focuses on workers comp. Admitted to practice in Delaware (2013). Educated at Widener University School of Law, Wilmington, DE (J.D., 2012) and University of Delaware, Newark, DE (B.A. Criminal, 2007). Active member of Associations & memberships Delaware Claims Association Delaware State Bar Association member, Workers' Compensation Section Randy J and Holland Delaware Workers' Compensation American Inn of Court. Serves clients in Wilmington, DE and the surrounding metropolitan area.
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About Benjamin K. Durstein
- As a member of the Workers' Compensation Department, Ben represents employers, insurance carriers and third-party administrators in defense of workers' compensation claims before the Industrial Accident Board and Delaware courts
- Ben earned his Bachelor of Arts degree from the University of Delaware in 2007, and went on to receive his juris doctor from Widener University School of Law in 2012
- After law school, he served as a judicial law clerk to the Honorable James T. Vaughn, Jr., who was then President Judge of the Delaware Superior Court
- Ben is a member of Delaware Claims Association, Delaware State Bar Association Workers’ Compensation Section and the Randy J. Holland Delaware Workers’ Compensation American Inn of Court
- He is admitted to practice in the State of Delaware
- Honors & Awards •The Best Lawyers: Ones to Watch, Workers’ Compensation Law - Employers (2024-2025) •Top Lawyer, Workers' Compensation Employer Defense, Delaware Today Magazine (November 2022) Classes/Seminars Taught •Ethics and the Duty to the Tribunal and Opposing Counsel, panelist, Delaware State Bar Association and the Industrial Accident Board Workers' Compensation Seminar 2023, Wilmington, Delaware, May 2, 2023 •Strategies to Limit Exposure and Minimize Risk, Marshall Dennehey Workers' Compensation Seminar, October 27, 2022 •Do’s and Don’ts in the Practice of Workers Compensation, Delaware State Bar Association William D. Rimmer Workers’ Compensation Seminar 2022, Wilmington, Delaware, May 3, 2022 •Are You Coming or Going - Do You Know Your Course and Scope?, Marshall Dennehey webinar, October 26, 2020 Results Petition to Terminate Ongoing Receipt of TPD Benefits Granted on Basis that Claimant Voluntarily Removed Himself from the Workforce The Industrial Accident Board (IAB) granted our petition to terminate the ongoing receipt of temporary partial disability (TPD) benefits on the basis that the claimant had voluntarily removed himself from the workforce
- The claimant was a correction officer who suffered head injuries in an altercation with an inmate
- He was out of work for a time and eventually released to return to work on modified duty
- His restrictions were permanent and, because they could not be accommodated by his employer, he was placed on TPD
- After more than a year with no indication of an attempt to return to the workforce, we challenged his ongoing entitlement to receive TPD
- We worked with the employer to obtain documentation regarding the claimant’s job search (or lack thereof), other sources of income (pension, Social Security) and recreational/social activities since he had been separated from employment
- In addition, we put forward both medical and vocational expert testimony at the hearing
- As a result, the IAB reasoned that the claimant was able to work in a medium-duty job, that jobs were available within his restrictions, the he had conducted a minimal job search since his work release more than a year and a half earlier, and that his description of his daily activities was consistent with a person content with a retirement lifestyle rather than someone who intended to continue to work
- Accordingly, he was no longer entitled to wage replacement benefits
- Petition to Terminate Temporary Partial Disability Benefits Granted We were successful in having our petition to terminate the ongoing receipt of temporary partial disability benefits granted on the basis that the claimant had voluntarily removed himself from the workforce
- The Industrial Accident Board reasoned that the claimant was able to work in a medium-duty job, that jobs were available within his restrictions, the he had conducted a minimal job search since his work release more than a year and a half earlier, and that his description of his daily activities was consistent with a person content with a retirement lifestyle rather than someone who intended to continue to work
- Accordingly, he was no longer entitled to wage replacement benefits
- Thought Leadership What's Hot in Workers' Comp Industrial Accident Board Denies EMT’s Motion to Amend Injury Date, Citing Statute of Limitations and Inexcusable Neglect July 1, 2025 The Industrial Accident Board dismissed a workers’ compensation claim after determining that the claimant’s attempt to amend the alleged date of injury was both untimely and the result of inexcusable neglect
- The claimant initially reported an injury occurring on May 26, 2023, but later acknowledged-well after the two-year statute of limitations had expired-that the incident had actually taken place in March 2023
- Arguing that amendment should “relate back” to his original petition, the claimant sought to preserve the claim despite the revised date
- However, the Board applied Superior Court Rule 15(c) and found that the amendment failed to arise from the same occurrence and that the delay in correcting the date was unjustifiable
- As a result, the motion to amend was denied, and the petition was dismissed as time-barred.The claimant worked as an EMT for the employer
- On August 21, 2023, he reported that a few months earlier, on May 26, 2023, he had injured his low back while moving a patient in a stretcher
- The claim was denied by the employer due to the late reporting of the event and because there was no evidence to support that a work accident occurred on that day
- On December 1, 2024, the claimant filed a Petition to Determine Compensation Due that sought acknowledgment of injuries sustained at work on May 26, 2023.On February 23, 2025, the employer inquired as to whether the correct date of loss was asserted because medical records reflected a similar incident on March 20, 2023
- On April 8, 2025, the claimant responded that, upon review of his text messages, the accident at work had actually occurred in March 2023, not May 26, 2023
- Upon request, the claimant produced screenshots of the text messages and represented to the employer that the correct accident date was actually March 20, 2023, or March 21, 2023-the claimant worked a night shift from the 20th to the 21st
- The employer objected to an amendment of the date of loss, now more than two years after the alleged accident
- The claimant filed a motion to amend the petition and contended that the amendment should “relate back” to the original filing date of December 13, 2024, which was within the two-year statute of limitations
- The Board determined that the best way to analyze the issue of “relation back” was to apply Superior Court Rule 15(c) because the Workers’ Compensation Act, Administrative Procedure Act and the Board Rules do not contain such a provision
- To relate back, Rule 15(c) requires that the amendment “arise out of the conduct, transaction or occurrence set forth in the original pleading.” Additionally, Delaware courts will reject motions to amend when the moving party has shown inexcusable neglect
- The Board concluded that the claimant’s proposed amendment failed on both fronts: (1) it did not arise out of the same occurrence as the original pleading and (2) his conduct constituted inexcusable neglect.The Board reasoned that the proposed change of the date of injury by more than two months was not a trivial amendment of a few days or a week
- The revised claim occurred on a completely different day and time
- Moreover, the Board emphasized that the claimant’s delay in reporting and subsequent failure to correct the date until after the statute of limitations had elapsed resulted in prejudice to the employer and constituted inexcusable neglect
- Lastly, the Board held that no provision of the savings statute applied to grant the claimant an additional year to make a timely filing of the petition
- The claimant’s motion to amend was denied, and the pending petition was dismissed
- What’s Hot in Workers’ Comp, Vol. 29, No. 7, July 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers
- This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship
- We would be pleased to provide such legal assistance as you require on these and other subjects when called upon
- ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright 2025 Marshall Dennehey, all rights reserved
- No part of this publication may be reprinted without the express written permission of our firm
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- What's Hot in Workers' Comp Petition to terminate total disability benefits for claimant who had light-duty restrictions that could not be accommodated denied
- claimant had reasonable expectation of returning to pre-injury job with same employer when his condition improved
- February 1, 2025 On November 4, 2023, the claimant injured his left knee in a compensable work accident that required surgery to his patella
- He had to switch doctors after his first treating surgeon passed away.On March 26, 2024, the claimant was released to return to light-duty work, but with no use of the stairs
- He briefly returned to work, but the employer was not able to accommodate those restrictions because his job required using steps connecting multiple levels of the plant
- The claimant was issued a note on June 17, 2024, that removed the stairs restriction
- He briefly returned to a modified-duty position with those restrictions, but a few days later, he was taken back out of work with a more restrictive, light-duty note
- On August 5, 2024, the employer filed a petition to terminate total disability benefits on the basis that the claimant was capable of returning to work and there were jobs within his restrictions available
- The parties stipulated that the claimant continued with light-duty restrictions and that jobs identified within a labor market survey were available and within those restrictions
- Therefore, the sole issue to determine entitlement to temporary total disability benefits was whether the claimant qualified as a “Hoey displaced worker.” The legal standard was whether the claimant had a reasonable expectation of returning to work for the employer
- The Industrial Accident Board concluded he did and confirmed the claimant was informed he would not be able to return to work without a lifting of his restrictions
- However, he was also told to keep the employer updated about his medical appointments and any changes in restrictions
- He was never separated from employment or told to look for employment elsewhere
- The claimant’s testimony, that he expected to improve with physical therapy and return to his pre-injury job, was found to be credible by the Board
- The termination petition was denied
- What’s Hot in Workers’ Comp, Vol. 29, No. 2, February 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers
- This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship
- We would be pleased to provide such legal assistance as you require on these and other subjects when called upon
- ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright 2025 Marshall Dennehey, all rights reserved
- No part of this publication may be reprinted without the express written permission of our firm
- For reprints or inquiries, or if you wish to be removed from this mailing list, contact [email protected]
Practice Areas Explained
Benjamin K. Durstein's Areas of Legal Practice
Each practice area below reflects the types of cases Benjamin K. Durstein handles, with a practical overview of what that area of law involves and how it may apply to your situation in Wilmington.
Workers Compensation in Wilmington
Workers compensation lawyers help injured workers get medical care, lost wages, and disability benefits. Free consult, no fee unless you win.
Benjamin K. Durstein is one of 54,932 workers comp attorneys indexed nationally. Browse workers comp attorneys in Delaware →
Jurisdictional Context
Why Local Counsel Matters in Wilmington
Practicing law in Delaware. Legal matters in Delaware are governed by state-specific rules of civil and criminal procedure, statutes of limitations, and substantive law. Cases originating in Wilmington are typically filed in the local municipal court or the appropriate Delaware state district court, depending on subject matter and amount in controversy. An attorney licensed in Delaware brings working knowledge of local procedural deadlines, judicial practices in this venue, and the substantive law that applies to cases brought here. Out-of-state attorneys generally cannot represent clients in Delaware courts without local counsel or pro hac vice admission.
Wilmington Courts and Legal Process
Choosing a Wilmington-based attorney means your counsel already knows the local docketing timelines, preferred filing formats, and how individual judges typically rule on procedural motions — details that only come from practicing in this jurisdiction day after day. That local familiarity can translate to better strategy, faster filings, and fewer costly surprises.
Looking for additional Delaware attorneys? Browse all attorneys in Wilmington or all attorneys in Delaware.
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Professional Profile
Why Clients in Wilmington Choose Benjamin K. Durstein
Selecting an attorney is one of the most consequential decisions you can make when a legal matter arises. Below are the core qualities that distinguish Benjamin K. Durstein's practice in the field of workers comp.
Decade-Tested Legal Experience
Benjamin K. Durstein brings 13+ years of hands-on legal practice — enough to have navigated the recurring fact patterns, procedural traps, and negotiation dynamics that shape case outcomes.
Focused Workers Comp Practice
Concentrating on workers comp means Benjamin K. Durstein's knowledge of relevant statutes, case law, and procedural nuances stays current — unlike generalist practices that spread attention across unrelated fields.
Local Presence in Wilmington
A Wilmington-based practice means Benjamin K. Durstein attends hearings in the same courthouses, knows the local clerks, and understands the unwritten scheduling norms that affect every case filed here.
Case Types
Common Legal Issues Benjamin K. Durstein Handles in Wilmington
Below is a representative sample of the types of matters Benjamin K. Durstein has experience with under Delaware law. If your situation involves one of these case categories, this attorney may be well positioned to help you understand your options.
This list is illustrative, not exhaustive. Contact Benjamin K. Durstein directly to discuss the specifics of your situation.
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