CHAPTER 339

RELATING TO WORKMEN'S COMPENSATION

AN ACT TO AMEND CHAPTER 23, TITLE 19 OF THE DELAWARE CODE RELATING TO WORKMEN'S COMPENSATION.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. § 2301, Title 19, Delaware Code, is amended by striking out and repealing the last paragraph and substituting in lieu thereof the following:

"Services" and "supplies" mean all treatments and apparatus, including glasses, artificial members, shoes and any other corrective appliance made necessary by reason of the injuries sustained.

Section 2. § 2302, Title 19, Delaware Code, is amended by striking out and repealing subsections (b) and (c) thereof and substituting a new subsection to read as follows:

(b) If the rate of wages is fixed by the day or hour, his weekly wages shall be taken to be that rate times the number of days or hours in an average work week of his employer at the time of the injury. If the rate of wages is fixed by the output of the employee, then his weekly wage shall be taken to be his average weekly earnings for during so much of the preceding six months as he has worked for the same employer. If, because of exceptional causes, such method of computation does not ascertain fairly the earnings of an employee, then the weekly wage shall be based on the average earnings for six months of an average employee of the same or most similar employment.

Section 3. § 2302, Title 19, Delaware Code, is amended by redesignating subsection (d) thereof as subsection (c) and by striking out and repealing the words and figures "fifty cents

($.50)" wherever they appear in said redesignated subsection (c) and substituting in lieu thereof the words and figures "three dollars ($3.00)".

Section 4. § 2308, Title 19, Delaware Code, is amended to read as follows:

§ 2308. Applicability to executive officers

Executive officers of covered employers are included within the provisions of this chapter.

Section 5. § 2322 (a), Title 19, Delaware Code, is amended by striking out and repealing the words "during the first 30 days of the injury" and substituting in lieu thereof the words "during the period of disability".

Section 6. § 2324, Title 19, Delaware Code, is amended by striking out and repealing the figures "$30" wherever they appear therein and substituting in lieu thereof the figures "$35" and by striking out and repealing the figures "$15" wherever they appear therein and substituting in lieu thereof the figures "$18".

Section 7. § 2325, Title 19, Delaware Code, is amended to read as follows:

§ 2325. Compensation during partial disability

For injuries resulting in partial disability for work,, except the particular cases mentioned in subsections (a)-(f) of section 2326 of this title, the compensation to be paid shall be 66-2/3 per cent 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 $35 per week. This compensation shall be paid during the period of such partial disability for work, not, however, beyond 300 weeks. In construing the words "earning power of the employee thereafter" as those words appear in this section, the Board shall take into consideration the value of gratuities, board, lodging, and similar advantages received by the employee in a subsequent employment.

Section 8. § 2326, Title 19, Delaware Code, is amended to read as follows :

§ 2326. Compensation for certain permanent injuries

(a) For all permanent injuries of the following classes, the compensation to be paid regardless of the earning power of the injured employee after the injury shall be as follows :

For loss of a hand, 66-2/3 per cent of wages during 220 weeks ;

For the loss of an arm, 66-2/3 per cent of wages during 250 weeks ;

For the loss of a foot, 66-2/3 per cent of wages during 160 weeks ;

For the loss of a leg, 66-2/3 per cent of wages during 250 weeks ;

For the loss of two or more of such members, not constituting total disability, 66-2/3 per cent of wages during the aggregate of the period specified for each ;

For the loss of a thumb, 66-2/3 per cent of wages during 75 weeks ;

For the loss of a first finger, commonly called index finger, 66-2/3 per cent of wages during 50 weeks ;

For the loss of a second finger, 66-2/3 per cent of wages during 40 weeks ;

For the loss of a third finger, 66-2/3 per cent of wages during 30 weeks ;

For the loss of a fourth finger, commonly called little finger, 66-2/3 per cent of wages during 20 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 phalanges than one shall be considered as the loss of the entire finger or thumb, provided, 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 110 weeks;

For the loss of a great toe, 66-2/3 per cent of wages during 40 weeks ;

For the loss of one of the toes, other than the great toe, 66-2/3 per cent of wages during 15 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 phalanges than one shall be considered as the loss of the entire toe;

For the loss of an eye, 66-2/3 per cent of wages during 200 weeks;

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 section as the loss suffered bears to the total loss of an eye.

(b) Amputation to the ankle or any part of the foot, not including the toes, shall be considered as the equivalent of the loss of a foot. Amputation above the ankle shall be considered as the loss of a leg.

(c) 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.

(d) In all other cases of permanent injury of the classes specified in subsection (a) of this section, 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 schedule set forth in subsection (a) of this section as the disabilities bear to those produced by the injury named in the schedule.

() Unless the Board otherwise determines 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 section 2324 of this title.

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 250 weeks. Amputation for 50 per cent 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 220 weeks.

() The Board shall award proper and equitable compensation for serious and permanent disfigurement to any part of the human body up to 150 weeks which shall be paid to the employee at the rate of 66-2/3 per centum of his weekly wages, but no compensation shall be awarded when such disfigurement was caused by the loss of or the loss of use of a member of the body, except the eye or eyes, for which compensation payments are already provided by terms of this section.

For the complete loss of hearing of one ear, the employee shall receive compensation at the rate of 66-2/3 per cent of his weekly wages for a period of 75 weeks.

For the complete loss of hearing in both ears, the employee shall receive 66-2/3 per cent of his weekly wages for a period of 175 weeks.

For the loss of a fractional part of hearing, the compensation shall be for such percentage of the total loss of weeks allowed for the total loss of hearing under this section as the loss suffered bears to the total loss of hearing.

(g) The compensation provided for in subsections (a)-(f) of this section shall not be more than $35 per week, nor less than $18 per week. If at the time of injury the employee receives wages of less than $18 per week, then he shall receive the full amount of such wages per week as compensation.

(h) Subject to subsection (e) of this section, the compensation provided for in subsections (a)-(g) of this section shall be paid in addition to the compensation provided for in sections 2324 and 2325 of this title.

Section 9. § 2330 (a), Title 19, Delaware Code, is amended by striking out and repealing subparagraphs (1) through (6) and 'substituting in lieu thereof the following:

(1) To the child or children if there is no widow or widower entitled to compensation, 50 per cent of the wages of the deceased, with 10 per cent additional for each child in excess of two, with a maximum of 80 per cent to be paid to their guardian.

(2) To the widow or widower, if there are no children, 50 per cent of wages provided that the minimum amount payable shall not be less than $15 per week.

(3) To the widow or widower, if there is one child, 65 per cent of wages ;

(1) To the widow or widower, if there are two children, 70 per cent of wages;

(1) To the widow or widower, if there are three children, 75 per cent of wages ;

(2) To the widow or widower, if there are four or more children, 80 per cent of wages ;

Section 10. §.2330 (b), Title, 19, Delaware Code, is amended to read as follows:

(b) The wages upon which death compensation shall be based shall not in any case be taken to exceed $75 per week nor be less than $15 per week. However, the minimum amount payable to a widow or widower, entitled to compensation shall not be less than $15 per week. Subject to the provisions of section 2332 of this title, this compensation shall be paid during 400 weeks and in case of children entitled to compensation under this section, the compensation of each child shall continue after such period of 400 weeks until such child reaches the age of 18 years, at the rate of 15 per cent of wages if there is but one child, with 10 per cent additional for each additional child, with a maximum of 65 per cent. Children are not entitled to compensation during the period that compensation is payable to their mother or father, except as provided in this section ; provided, however, that the compensation for any child shall not be less than $10 per week unless the total maximum benefits are being paid.

Section 11. § 2330 (c), Title 19, Delaware Code, is amended by striking out and repealing the figures "16" as they appear therein and substituting in lieu thereof the figures "18".

Section 12. § 2331, Title 19, Delaware Code, is amended by striking out and repealing the figures "$300" as they appear therein and substituting in lieu thereof the figures "$700".

Section 13. § 2341, Title 19, Delaware Code, is amended to read as follows:

§ 2341. Notice of injury; time of; and failure to give

Unless the employer has actual knowledge of the occurrence of the injury, or unless the employee or someone on his behalf, or some of the dependents, or someone on their behalf, gives notice thereof to the employer within 90 days after the accident, no compensation shall be due until such notice is given or knowledge obtained.

Section 14. § 2342, Title 19, Delaware Code, is amended by striking out and repealing the figure and word "5 months" and substituting in lieu thereof the words "one year".

Section 15. § 2350, Title 19, Delaware Code, is amended by adding a new subsection to read as follows :

(e) If the decision of the Board is affirmed by an appellate court, the employee shall be entitled to all compensation plus interest at the legal rate from the time of the award by the Board.

Section 16. § 2358 (b), Title 19, Delaware Code, is repealed.

Section 17. § 2361 (a), Title 19, Delaware Code, is amended by striking out and repealed the words "within one year" and substituting in lieu thereof the words "within two years".

Section 18. § 2361 (b), Title 19, Delaware Code, is amended by striking out and repealing the words "two years" and substituting in lieu thereof the words "five years".

Section 19. § 2361 (c), Title 19, Delaware Code, is amended to read as follows :

(c) All claims for compensation for compensable occupational disease shall be forever barred unless a petition is filed in duplicate with the Secretary of the Board within one year after the date on which the employee first acquired such knowledge that the disability was or could have been caused or had resulted from his employment, provided, however, that all claims must be filed within 5 years after the date on which the employee ceased to be exposed in the course of employment with the employer to such occupational disease.

Section 20. § 2362, Title 19, Delaware Code, is amended to read as follows :

§ 2362. Penalty for delay in payment of compensation

An insurance carrier for the employer or the self-insurer who neglects or refuses to make the first payment of compensation more than fifteen (15) days after a compensable injury, such delay being avoidable or due to negligence, shall be fined not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00).

Section 21. § 2363, Title 19, Delaware Code, is amended to read as follows:

§ 2363. Third person liable for injury; right of employee to sue and seek compensation; right of employer and insurer to enforce liability; notice of action; settlement and release of claim, effect; amount of recovery; reimbursement of employer or insurer; expenses of recovery, apportionment; compensation benefits

(a) Where the injury for which compensation is payable under this chapter was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence such action within 260 days after the occurrence of the personal injury, then the employer or its compensation insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of suit by any party under this section, such party shall notify, by registered mail at their last known address, the Industrial Accident Board, the injured employee, or in the event of his death, his known dependents, or personal representative or his known next of kin, his employer and the workmen's compensation insurance carrier. Any party in interest shall have a right to join in said suit.

() Prior to the entry of judgment, either the employer or his insurance carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor.

(a) Such settlement and release by the employee shall not be a bar to action by the employer or its compensation

insurance carrier to proceed against said third party for any interest or claim it might have.

(d) In the event the injured employee or his dependents or personal representative shall settle their claim for injury or death, or commence proceedings thereon against the third party before the payment of workmen's compensation, such recovery or commencement of proceedings shall not act as an election of remedies and any moneys so recovered shall be applied as herein provided.

() In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workmen's compensation insurance carrier for any amounts paid or payable under the workmen's compensation act to date of recovery, and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits.

() Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting such recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. The expenses of recovery above mentioned shall be apportioned by the court between the parties as their interests appear at the time of said recovery.

Approved June 23, 1955.