CHAPTER 269 - DELAWARE WORKMEN'S COMPENSATION LAW

AN ACT TO AMEND CHAPTER 175 OF THE REVISED CODE OF DELAWARE, 1935, ENTITLED DELAWARE WORKMEN'S COMPENSATION LAW, BY EXTENDING THE PROVISIONS FOR PAYMENTS THEREUNDER.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

SECTION 1. That 6072 Section 2 of Chapter 175 of the Revised Code of Delaware, 1935, be amended by striking out and repealing all of subsection (c) thereof and substituting in lieu thereof the following:

(c) That injury was caused in any degree by the negligence of such employee.

SECTION 2. That 6073 Section 3 of Chapter 175 of the Revised Code of Delaware, 1935, be amended by striking out and repealing all of said section and substituting in lieu thereof a new section to be known as 6073 Section 3 as follows:

6073 Sec. 3. Every employer and employee, adult and minor, except as in this Chapter expressly excluded, shall be deemed to be bound by the provisions of this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies.

SECTION 3. That 6074 Section 4 of Chapter 175 of the Revised Code of Delaware, 1935, be amended by striking out and repealing all of said section.

SECTION 4. That 6075 Section 5 of Chapter 175 of the Revised Code of Delaware, 1935, be amended by striking out and repealing all of said section.

SECTION 5. That 6076 Section 6 of Chapter 175 of the Revised Code of Delaware, 1935, be amended by striking out and repealing all of said section.

SECTION 6. That 6078 Section 8 of Chapter 175 of the Revised Code of Delaware, 1935, be amended by striking out and repealing all of subsection (a) thereof and subsection (b) thereof and substituting in lieu thereof new subsections to be known as subsection (a) and subsection (b), respectively, as follows:

No compensation shall be paid for any injury which does not incapacitate the employee for a period of three (3) days from earning full wages, but if incapacity extends beyond the period of three (3) days compensation shall begin on the fourth day after such incapacity.

During the first thirty (30) days of the injury the employer shall furnish reasonable surgical, medical, and hospital services, medicine, and supplies, as and when needed, unless the employee refuses to allow them to be furnished by the employer. The cost of such services, medicines, and supplies shall not exceed Two Hundred Dollars ($200.00). If the employer shall, upon application made to him, refuse to furnish reasonable surgical, medical, and hospital services, medicines and supplies, the employee may procure the same and shall receive from the employer the reasonable cost thereof within the above limitations.

SECTION 7. That 6079 Section 9 of Chapter 175 of the Revised Code of Delaware, 1935, be amended by striking out and repealing all of said section and substituting in lieu thereof a new section to be known as 6079 Section 9 as follows:

6079 Section 9. If death results from the injury within one year, the employer shall pay the reasonable expenses of the last sickness and burial of an injured employee, not exceeding One Hundred and Seventy-five Dollars ($175.00), but without deduction of any amount theretofore paid for compensation or for medical expenses.

SECTION 8. That 6080 Section 10 of Chapter 175 of the Revised Code of Delaware, 1935, be amended by striking out and repealing all of said section and substituting in lieu thereof a new section to be known as 6080 Section 10 as follows:

6080 Section 10. Total disabilities, compensation for; Schedules for Partial Disabilities; Schedules for; Death; Compensation to Dependents:—The following schedule of compensation is hereby established for injuries resulting in total disability: (a) For the first four hundred and fifty (450) weeks of total disability, sixty percentum (60%) of the wages of the injured employee as defined by this chapter; but the compensation shall not be more than Eighteen Dollars ($18.00) per week nor less than Eight Dollars ($8.00) per week; provided that if at the time of injury the employee receives wages of less than Eight Dollars ($8.00) per week, then he shall receive the full amount of such wages per week as compensation. Nothing in this paragraph (a) shall require the payment of compensation after disability shall cease.

For disability for work partial in character (except the particular cases mentioned in the next succeeding subsection (c) of this section) sixty percentum (60%) of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter, but such compensation shall not be more than Eighteen Dollars ($18.00) per week. This compensation shall be paid during the period of such partial disability for work, not, however, beyond three hundred (300) weeks.

For all permanent injuries of the following classes, the compensation regardless of the earning power of such injured employee after such injury shall be as follows:

For the loss of an arm, sixty percentum (60%) of wages during two hundred and twenty (220) weeks;

For the loss of a foot, sixty percentum (60%) of wages during one hundred and fifty (150) weeks;

For the loss of a leg, sixty percentum (60%) of wages during two hundred and twenty (220) weeks;

For the loss of an eye, sixty percentum (60%) of wages during one hundred and twenty-five (125) weeks;

For the loss of two or more of such members, not constituting total disability, sixty percentum (60%) of wages during the aggregate of the period specified for each;

For the loss of a thumb, sixty percentum (60%) of wages during sixty (60) weeks;

For the loss of a first finger, commonly called index finger, sixty percentum (60%) of wages during thirty-five (35) weeks;

For the loss of a second finger, sixty percentum (60%) of wages during thirty (30) weeks;

For the loss of a third finger, sixty percentum (60%) of wages during twenty (20) weeks;

For the loss of a fourth finger, commonly called little finger, sixty percentum (60%) of wages during fifteen (15) weeks;

The loss of the first phalange of the thumb or any finger shall be considered to be equal to the loss of one-half of such thumb or finger and compensation shall be for one-half of the period, and compensation for the loss of one-half of the first phalange shall be for one-fourth of the period:

The loss of more than one phalange shall be considered as the loss of the entire finger or thumb, providing, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand;

The loss of three fingers, or two fingers and a thumb of the same hand shall be considered as the loss of one-half of the hand, and compensation shall be paid for such loss for a period of one hundred (100) weeks;

For the loss of a great toe, sixty percentum (60%) of wages during thirty (30) weeks;

For the loss of one of the toes, other than the great toe, sixty percentum (60% ) of wages during ten (10) weeks;

The loss of the first phalange of any toe shall be considered to be equal to the loss of one-half of such toe, and compensation shall be for one-half of such period;

The loss of more than one phalange shall be considered as the loss of the entire toe;

For the loss of a fractional part of the vision of an eye, the compensation shall be for such percentage of the total number of weeks allowed for the total loss of the use of an eye under this subsection (c) as the loss suffered bears to the total loss of an eye.

In all other cases in this class, or when the usefulness of a member or any physical function is permanently impaired, the compensation shall bear such relation to the number of weeks stated in the above schedule as the disabilities bear to those produced by the injury named in the schedule. Unless the Board shall otherwise determine from the facts, the loss of both hands, or both arms, or both feet, or both legs, or both eyes, or an injury to the spine resulting in permanent and complete paralysis of both legs, or both arms, or one leg and one arm, or an injury to the skull resulting in incurable imbecility or insanity, shall constitute total disability for work, to be compensated according to the provisions of subsection (a) of this section.

Amputation between the knee and ankle shall be considered as the equivalent of the loss of a foot. Amputation at or above the knee shall be considered as the loss of a leg. Amputation between the palmer surface of the hand and the shoulder shall be considered as the loss of an arm, and compensation shall be paid for such injury for a period of two hundred and twenty (220) weeks. Amputation for fifty percentum (50%) of the palmer surface of the hand shall be considered as the loss of the hand and compensation shall be paid for a period of two hundred (200) weeks. Total loss of the use of a hand, arm, foot, leg, or eye, shall be considered as the equivalent of the loss of such hand, arm, foot, leg, or eye. This compensation shall not be more than Eighteen Dollars ($18.00) per week, nor less than Eight Dollars ($8.00) per week; provided that if at the time of injury the employee receives wages of less than Eight Dollars ($8.00) per week, then he shall receive the full amount of such wages per week as compensation. Compensation for the foregoing permanent-partial injuries shall be paid in addition to the compensation provided for in subsection (a) and subsection (b) of this section.

(d) Should the employee die as a result of the injury, no reduction shall be made for the amount which may have been paid for medical, surgical, and hospital services, and medicines, nor for the expense of last sickness and burial as hereinbefore provided. Should the employee die from some other cause than the injury as herein defined, the liability for compensation, expense of last sickness, and burial of such employee, shall cease.

(e) If an employee, having previously sustained a permanent injury from any cause, whether in line of employment or otherwise, shall sustain any other permanent injury, he shall be entitled to compensation for the subsequent injury in the same amount, and only in the same amount, as though the previous injury had not occurred; provided that if the subsequent injury shall be sustained in the employment of the same employer, and in the course of work of the same classification as the previous injury, then the amount of compensation to which the employee shall be entitled shall be the amount which would be payable if both such injuries were the result of one accident, less the amount equal to the compensation fixed in this chapter for the previous injury.

(f) For the complete loss of hearing of one ear, the employee shall receive compensation at the rate of sixty percentum (60%) of his weekly wages for a period of fifty-two (52) weeks.

For the complete Loss of hearing in both ears, the employee shall receive sixty percentum (60%) of his weekly wages for a period of one hundred and four (104) weeks.

SECTION 9. That 6081. Section 11 of Chapter 175 of the Revised Code of Delaware, 1935, be amended by striking out and repealing the entire section and substituting a new section to be known as 6081 Section 11 as follows:

6081 Section 11. Death, Compensation For; Schedules; To Whom Paid; Terms Construed; Effect of Re-Marriage or Death; Basis of Compensation:—In case of death, compensation shall be computed on the following basis and distributed to the following persons:

1. To the child or children, if there be no widow nor widower entitled to compensation, twenty-five percentum (25%) of wages of deceased, with ten percentum (10%) additional for each child in excess of two, with a maximum of sixty-five percentum (65%) to be paid to their guardian;

2. To the widow or widower, if there be no children, twenty-five percentum (25%) of wages, provided that the minimum amount payable shall not be less than Seven Dollars ($7.00) per week;

3. To the widow or widower, if there be one child, fifty percentum (50%) of wages;

4. To the widow or widower, if there be two children, fifty-five percentum (55%) of the wages;

5. To the widow or widower, if there be three (3) children, sixty percentum (60%) of wages;

6. To the widow or widower, if there be four or more children, sixty-five percentum (65%) of wages;

7. Such compensation to the widow or widower shall be for the use and benefit of such widow or widower and of the dependent children and the Board may from time to time apportion such compensation between them in such way as it deems best. The Board, in its discretion, may require payments to be made direct to a minor who has been injured and may also require payments to be made to the person caring for any dependent minor, when, in the opinion of the Board, the expense of securing the appointment of a guardian would be disproportionate to the amount of compensation payable to such minor.

8. If there be neither widow, widower, nor children, then to the father and mother, or the survivor of them, if dependent to any extent upon the employee for support at the time of his death, twenty percentum (20%) of the wages.

9. If there be neither widow, widower, children, nor dependent parent, then to the brothers and sisters, if actually dependent to any extent upon the decedent for support at the time of his death, fifteen percentum (15%) of wages for one brother or sister, and five percentum (5% ) additional for each additional brother or sister, with a maximum of twenty-five percenturn (25%); such compensation to be paid to their guardian.

Compensation shall be payable under this section to or on account of any child, brother, or sister, only if and while such child, brother, or sister is under the age of sixteen (16) years. No compensation shall be payable under this section to a widow, unless she was living with her deceased husband at the time of his death or was then actually dependent upon him for support, but in such case, compensation shall be distributed to the persons who would be dependents in case there were no widow. No compensation shall be payable under this section to a widower, unless he be incapable of self-support at the time of his wife's death and be at such time dependent upon her for support.

The terms "child" and "children" shall include step-children and adopted children and children to whom the deceased stood in loco parentis, if members of the decedent's household at the time of his death, and shall include posthumous children, but shall not include married children. Should any dependent of a deceased employee die, or should the widow or widower remarry, or should the widower become capable of self-support, the right of such dependent or such widow or widower to compensation under this section shall cease.

If the compensation payable under this section to or on account of any person shall for any cause cease, the compensation of the remaining persons entitled thereunder shall thereafter be the same as would have been payable to them had they been the only persons entitled to compensation at the time of the death of the deceased. The wage upon which death compensation shall be based shall not in any case be taken to exceed Thirty Dollars ($30.00) per week nor to be less than Ten Dollars ($10.00) per week, provided, however, that the minimum amount payable to a widow or widower, entitled to compensation shall not be less than Seven Dollars ($7.00) per week. Subject to the provision of subsection (d) of the last preceding section, this compensation shall be paid during three hundred and twelve (312) weeks and in case of children entitled to compensation under this section, the compensation of each child shall continue after such period of three hundred and twelve (312) weeks until such child reaches the age of sixteen (16) years, at the rate of fifteen percentum (15%) of wages if there be but one child, with ten percentum (10%) additional for each additional child, with a maximum of sixty-five percentum (65%).

Children are not entitled to compensation during the period that compensation is payable to their mother or father, except as herein provided.

SECTION 10. That 6114 Section 44 of Chapter 175 of the Revised Code of Delaware, 1935, as amended by Chapter 241 of Volume 41 Laws of Delaware, be further amended by adding and inserting to the schedule of compensable occupational diseases the following occupational diseases: Dermatitis, sillicosis, poison ivy and oak poison.

SECTION 11. That 6118 Section 48 of Chapter 175 of the Revised Code of Delaware, 1935, as amended by Chapter 243, Volume 41 Laws of Delaware, and as amended by Chapter 244, of Volume 41 Laws of Delaware be amended and repealed by striking out all of said Section 48 and substituting in lieu thereof a new section to be known as 6118 Section 48 as follows:

6118. Sec. 48. Chapter Not Applicable, When; Exceptions; Election of State of Delaware, Levy Court Etc. By Whom Exercised:—This Chapter shall not apply to the employer and employee in any employment in which less than three employees are engaged; nor to farm laborers and domestic servants, nor to their respective employers, nor to officers and servants of the State of Delaware, nor to any governmental agency created by it, excepting officers and servants of the State of Delaware, officers and servants of the County of New Castle, officers and servants of the Mayor and Council of Wilmington, officers and employees of the City of Dover, officers and employees of the Mayor and Council of New Castle, officers and employees of the City of Milford, a municipal corporation of the State of Delaware, and excepting officers and employees of the Mayor and Council of Middletown, a municipal corporation of the State of Delaware, and excepting officers and employees of the Board of Public Works of Lewes who shall have been either elected for a term of office of fixed and definite duration or to complete the unexpired portion of any such term; provided, however, that the Mayor and Council of Wilmington shall at all times apply to the Board for a certificate of self-insurance.

The election of the State of Delaware to be bound by the compensatory provisions of the chapter shall be made by and be under the control of the Governor. The election by the County of New Castle shall be made by and be under the control of the Levy Court of New Castle County; the election of the Mayor and Council of Wilmington shall be made by and be under the control of the Mayor and Council; the election of the said City of Dover shall be made by and be under the control of the said Council; the election of the Mayor and Council of New Castle shall be made by and be under the control of the Council of said municipal corporation; the election by the City of Milford shall be by and be under the control of the City Council of the said municipal corporation; and the election by the Mayor and Council of Middletown shall be by and under the control of the said Mayor and Council of Middletown and the said election by the Commissioners of Lewes shall be by and be under the control of the Board of Public Works of Lewes.

In any and all cases where any employer of less than three (3) employees carries insurance to insure the payment of compensation to such employees, or any of them, or their or either of their dependents, then in any and all such cases such employer, employers, employee, and employees shall come under the provisions of Chapter 175 of the Revised Code of Delaware, 1935, and all of the provisions thereof shall apply with the same force and effect as in cases where three (3) or more employees are engaged, as provided in the aforesaid Chapter.

Approved May 26, 1941, 12 o'clock noon.