CHAPTER 454

FORMERLY

SENATE BILL NO. 287

AS AMENDED BY SENATE AMENDMENT NO. 2

AND HOUSE AMENDMENT NOS. 1, 2, 3, 5, 6, 8, & 9

AN ACT TO AMEND CHAPTER 23, PART II, 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. Amend §2301, Chapter 23, Part 11, Title 19 of the Delaware Code, by striking said section in its entirety, and substituting in lieu thereof a new section, which shall read as follows:

§2301. Definitions

As used in this chapter —

"Board" means the Industrial Accident Board;

"Child" includes stepchildren 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 includes posthumous children but not married children;

"Compensable ionizing radiation injury" means any harmful change in the human organism including damage to or loss of a prosthetic appliance arising out of and in the course of employment and caused by exposure to ionizing radiation which renders the injured party disabled with the meaning of Sections 2324 and 2325 and/or permanently injured within the meaning of Section 2326;

"Compensable occupational diseases" includes all occupational diseases arising out of and in the course of employment only when the exposure stated in connection therewith has occurred during employment;

"Compensation" wherever the context requires it, includes surgical medical and hospital services, medicines and supplies, and funeral benefits provided for in this chapter. Nothing in this Chapter shall be construed to require a workman who in good faith relies on or is treated by prayer or spiritual means by a duly accredited practitioner of a well-known church to undergo any medical or surgical treatment, nor shall such workman or his dependents be deprived of any compensation payments to which he would have been entitled if medical or surgical treatment were employed.

"Death" when mentioned as a cause for compensation under this chapter, means death resulting from violence to the physical structure of the body and its resultant effect when reasonably treated and occurring within 285 weeks after the accident, and compensable occupational diseases, as defined in this section, arising out of and in the course of the employment, provided that if death shall occur beyond 285 weeks after the accident, the Board may consider such death as a cause for compensation when the Board has a medical history on the case resulting from the payment of compensation for the injury which is alleged to have caused the death;

"Dependent" includes all persons other than the injured employee who are entitled to compensation under the provisions of the elective schedule set forth in this chapter, and wherever the context requires it, includes the personal representatives and the widow or widower of the deceased, and guardians of infants or trustees for incompetent persons;

"Employee" means every person in service of any corporation (private, public, municipal or quasi-public), association, firm or person excepting those employers excluded by this subchapter under any contract of hire, express or implied, oral or written, or performing services for a valuable consideration, excluding wife and minor children of a farm employer unless the wife or minor children is a bona fide employee of a farm employer and is named in an endorsement to the farmer employer's contract of insurance, and excluding any person whose employment is casual and not in the regular course of the trade, business, profession or occupation of his employer, and not including persons to whom articles or materials are furnished or repaired, or adopted for sale in the workman's own home, or on the premises not under the control or management of the employer; and 'casual employment', as used in this paragraph, means employment for not over two weeks or a total salary during the employment not to exceed $100 and, subject to the above, repairs and maintenance of employer's regular business shall not be construed as casual employment; except, however, that everyone assigned to work under the provisions of sections 901-905 of Title 31, is specifically designated an employee, notwithstanding any provisions of this section to the contrary;

"Employer" includes all those who employ others unless they are excluded from the application of this chapter by any provisions of this subchapter, and if the employer is insured, the term shall include the insurer as far as practicable; employer shall also include the governing body for which employable relief recipients are assigned work under the provisions of Section 901905 of Title 31;

"Executive officers" means the president, any vice-president, secretary, treasurer, or any other executive officer elected and empowered by the board of directors in accordance with the charter and the regularly adopted by-laws of the corporation;

"Injury" and "personal injury" means violence to the physical structure of the body, such disease or infection as naturally results directly therefrom when reasonably treated, and compensable occupational diseases and compensable ionizing radiation injuries arising out of and in the course of employment;

"Insurance carrier" means any insurance corporation, mutual association or company, or interinsurance exchange which insures employers against liability under this chapter or against liability at common law for accidental injuries to employees;

"Ionizing radiation" means any particulate or electromagnetic radiation capable of producing ions directly or indirectly in its passage through matter;

"Personal injury sustained by accident arising out of and in the course of the employment":

(1) Shall not cover an employee except while he is engaged in, on, or about the premises where his services are being performed, which are occupied by, or under the control of the employer (his presence being required by the nature of his employment), or while he is engaged elsewhere in or about his employer's business, where his services require his presence as a part of such service at the time of the injury; and

(2) shall not include any injury caused by the willful act of another employee directed against him by reasons personal to such employee and not directed against him as an employee or because of his employment;

"Willful self-exposure to occupational diseases" includes: (1) failure or omission to observe such rules and regulations as may be promulgated and posted in the plant by the employer tending to the prevention of occupational diseases; and,

(2) Failure or omission to truthfully state to the best of the employee's knowledge, in answer to inquiry made by the employer, the location, duration and nature of previous employment of the employee in which he was exposed to any occupational diseases.

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

Section 2. Amend §2303, Chapter 23, Part 11, Title 19 of the Delaware Code, by striking said section in its entirety, and substituting in lieu thereof a new section, which shall read as follows:

§2303. Territorial application of chapter

(a) if an employee, while working outside the territorial limits of this State, suffers an injury on account of which he, or in the event of his death his dependents, would have been entitled to the benefits provided by this Act had such injury occurred within this State, such employee, or in the event of his death resulting from such injury his dependents, shall be entitled to the benefits provided by this Act, provided that at the time of such injury:

(1) his employment is principally localized in this State; or

(0) he is working under a contract of hire made in this State in employment not principally localized in any State; or

(3) he is working under a contract of hire made in this State in employment principally localized in another State whose workmen's compensation law is not applicable to his employer; or

(4) he is working under a contract of hire made in this State for employment outside the United States and Canada.

(b) The payment or award of benefits under the workmen's compensation law of another state, territory, province or foreign nation to an employee or his dependents otherwise entitled on account of such injury or death to the benefits of this Act shall not be a bar to a claim for benefits under this Act, provided that claim under this Act is filed within two years after such injury or death. If compensation is paid or awarded under this Act:

(1) the medical and related benefits furnished or paid for by the employer under such other workmen's compensation law on account of such injury or death shall be credited against the medical and related benefits to which the employee would have been entitled under this Act had claim been made solely under this Act;

(2) the total amount of all income benefits paid or awarded the employee under such other workmen's compensation law shall be credited against the total amount of income benefits which have been due the employee under this Act had claim been made solely under this Act;

(0) the total amount of death benefits paid or awarded under such other workmen's compensation law shall be credited against the total amount of death benefits under this Act.

(c) If an employee is entitled to the benefits of this Act by reason of an injury sustained in this State in employment by an employer who is domiciled in another State and who has not secured the payment of compensation as required by this Act, the employer or his carrier may file with the Board a certificate, issued by the commission or agency of such other state having jurisdiction over workmen's compensation claims, certifying that such employer has secured the payment of compensation under the workmen's compensation law of such other state and that with respect to said injury such employee is entitled to the benefits provided under such law. In such event:

(1) the filing of such certificate shall constitute an appointment by such employer or his carrier of the Board as its agent for acceptance of the service of process in any proceeding brought by such employee or his dependents to enforce his or their rights under this Act on account of such injury;

(2) the Board shall send to such employer or carrier, by registered or certified mail to the address shown on such certificate, a true copy of any notice of claim or other process served on the Director by the employee or his dependents in any proceeding brought to enforce his or their rights under this Act;

(3) (i) if such employer is a qualified self-insurer under the workmen's compensation law of such other state, such employer shall, upon submission of evidence, satisfactory to the Board, of his ability to meet his liability to such employee under this Act, be deemed to be a qualified self-insurer under this Act;

(ii) if such employer's liability under the workmen's compensation law of such other state is insured, such employer's carrier, as to such employee or his dependents only, shall be deemed to be an insurer authorized to write insurance under and be subject to this Act; provided, however, that unless its contract with said employer requires it to pay an amount equivalent to the compensation benefits provided by this Act, its liability for income benefits or medical and related benefits shall not exceed the amounts of such benefits for which such insurer would have been liable under the workmen's compensation law of such other state;

(0) if the total amount for which such employer's insurance is liable under (3) above is less than the total of the compensation benefits to which such employee is entitled under this Act, the Board may, if it deems it necessary, require the employer to file security, satisfactory to the Board, to secure the payment of benefits due such employee or his dependents under this Act; and

(0) upon compliance with the preceding requirements of this subsection

(c) such employer, as to such employee only, shall be deemed to have secured the payment of compensation under this Act.

() As used in this section:

(1) `United States' includes only the states of the United States and the District of Columbia;

(2) `State' includes any state of the Unite1 States, the District of Columbia, or any Province of Canada;

(3) `Carrier' includes any insurance company licensed to write workmen's compensation insurance in any state of the United States or any state or provincial fund which insures employers against their liabilities under a workmen's compensation law;

(4) A person's employment is principally localized in this or another state when: 1) his employer has a place of business in this or such other state and he regularly works at or from such place of business; or 2) if clause 1) foregoing is not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state;

(5) Any employee whose duties require him to travel regularly in the service of his employer in this and one or more other states may, by written agreement with his employer, provided that his employment is principally localized in this or another such state, and, unless such other state refuses jurisdiction, such agreement shall be given effect under this Act;

(6) 'Workmen's compensation law' includes `occupational disease law'."

Section 3. Amend §2306, Chapter 23, Part II, Title 19 of the Delaware Code, by striking said section in its entirety and substituting in lieu thereof of a new section, which shall read as follows:

§2306. Applicability to employers

(a) Except as otherwise indicated, this chapter shall apply to the employer and employee in any employment in which one or more employees are engaged.

(b) In all cases where an employer not subject to this chapter carries insurance to insure the payment of compensation to his employees, then in any and all such cases such employer and employees shall come under the provisions of this chapter, and all of the provisions thereof with the same force and effect as in cases where an employer is subject to this chapter.

Section 4. Amend §2309, Chapter 23, Part II, Title 19 of the Delaware Code, by striking said section in its entirety and substituting in lieu thereof a new section, which shall read as follows:

§2309. Applicability to State, Counties and political subdivisions

This chapter shall apply to the State of Delaware, any governmental agency created by it, each county, city, town, township, incorporated village, school district, sewer district, drainage district, public or quasi-public corporation, or any other political subdivision of the State that has one or more employees, official or officer, whether elected or appointed.

Section 5. Section 2313, Part II, Chapter 23, Title 19, Delaware Code, is amended by striking subsection (c) of said section, in its entirety and inserting in lieu thereof a new subsection (c), which shall read as follows:

"(c) Whoever, being an employer refuses or neglects to make a report required by this section shall be fined not less than $25 nor more than $100 for each offense. In the event the employer can show that the failure to make a report required by this section was caused by the refusal of the insurance carrier for the employer to report a reportable injury which the insurance carrier had knowledge of and of which the employer had no knowledge, after written request therefor, the aforementioned fine may be levied against said insurance carrier. The fine shall be assessed by the Industrial Accident Board after the employer and/or the insurance carrier for the employer is given notice and a hearing on the violation. The fine shall be payable to the Industrial Accident Board Second Injury and Contingency Fund."

Section 6. Section 2347, Part II, Chapter 23, Title 19, Delaware Code, is amended by striking the last paragraph of Section 2347 in its entirety and inserting in lieu thereof the following new last paragraph, which shall read as follows:

"Compensation shall be paid by the Board to the employee after the filing of the employer's petition to review from the Industrial Accident Board Second Injury and Contingency Fund until the parties to an award or agreement consent to the termination or until the Board enters an order upon the employer's petition to review. After the parties to an award or agreement consent to the reinstatement of compensation or, after the employer withdraws its petition, or, if the Industrial Accident Board orders the employer's petition dismissed, the employer shall repay to the Industrial Accident Board Second Injury Contingency Fund the amount paid out by the Board.

A petition to review must be withdrawn whenever the parties to an agreement settle the claim without a hearing before the Board, or whenever an employee consents to a termination after a petition to review has been filed with the Board."

Section 7. Section 2353 (a), Chapter 23, Part II, Title 19 of the Delaware Code, is amended by adding thereto the following at the end thereof:

"Where rehabilitation services require residence at or near the public or private agency away from the employee's customary residence, reasonable costs of his board, lodging and travel shall be paid for by the employer. Refusal to accept rehabilitation services pursuant to order of the Board shall result in a loss of compensation for each week of the period of refusal."

Section 8. Section 2361 (c), Chapter 23, Part II, Title 19 of the Delaware Code, is amended by striking said subsection (c) in its entirety and substituting in lieu thereof a new subsection (c), which shall read as follows:

"All claims for compensation for compensable occupational disease or for on ionizing radiation injury 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. In case of death, all claims for compensation for compensable occupational disease or for an ionizing radiation injury 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 person or persons entitled to file such claims know, or by the exercise of reasonable diligence should know, the possible relationship of the death to the employment."

Section 9. Amend §2307, Chapter 23, Title 19 of the Delaware Code, by striking said section in its entirety, and substituting in lieu thereof a new §2307, which shall read as follows:

§2307. Applicability to domestic servants

This Chapter shall not apply to any person employed as a household worker in a private home or household who earns less than three hundred dollars ($300.00) in cash in any three-month period from a single private home or household and any person employed as a casual worker in a private home or household who earns less than three hundred dollars ($300.00) in cash in any three-month period from a single private home or household.

Section 10. Amend §2324, Chapter 23, Title 19 of the Delaware Code, by striking said section in its entirety and inserting in lieu thereof a new §2324, which shall read as follows:

§2324. Compensation for total disability

(a) For injuries resulting in total disability occurring after July 1, 1975, the compensation to be paid during the continuance of total disability shall be sixty-six and two-thirds percent (66 2/3%) of the wages of the injured employee, as defined by this Chapter, but the compensation shall not be more than 66 2/3% of the average weekly wage per week as announced by the Secretary of the Department of Labor for the last calendar year for which a determination of the average weekly wage has been made, nor less than twenty-two and two-ninths percent (22 2/9%) of the average weekly wage per week. If at the time of the injury the employee receives wages of less than 22 2/9% of the average weekly wage per week, then he shall receive the full amount of such wages per week, as compensation.

Nothing in this section shall require the payment of compensation after disability ceases.

Section 14. Amend §2330, Chapter 23, Title 19 of the Delaware Code, by striking said section in its entirety, and substituting in lieu thereof a new §2330, which shall read as follows:

§2330. Compensation for death

(a) 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 is no widow or widower entitled to compensation, sixty-six and two-thirds percent (66 2/3%) of the wages of the deceased, with ten percent (10 percent) additional for each child in excess of two, with a maximum of eighty percent (80%) to be paid to their guardian;

(2) to the widow or widower, if there are no children, sixty-six and two-thirds percent (66 2/3%) of wages provided that the minimum amount payable shall not be less than fifteen dollars ($15.00) per week;

(3) to the widow or widower, if there is one child, sixty-six and two-thirds percent (66 2/3%) of wages;

(4) to the widow or widower, if there are two children, seventy percent (70%) of wages;

(5) to the widow or widower, if there are three children, seventy-five percent (75%) of wages;

(6) to the widow or widower, if there are four or more children, eighty percent (80%) of wages;

(7) if there is no widow, widower or children, then to the father and mother, or the survivor of the, if actually dependent upon the employee for at least fifty percent (50%) of their support at the time of his death, twenty percent (20%) of wages;

(8) if there is no widow, widower, children or dependent parent, then to the brothers and sisters, if actually dependent upon the decedent for at least fifty percent (50%) of their support at the time of his death, fifteen percent (15%) of wages for one brother or sister, and five percent (5%) additional for each additional brother or sister, with a maximum of twenty-five percent (25%), such compensation to be paid to their guardian.

(b) The wages upon which death compensation shall be based shall not in any case be taken to exceed the average weekly wage per week as announced by the Secretary of the Department of Labor for the last calendar year for which a determination of the average weekly wage has been made. However, the minimum amount payable to a widow or widower entitled to compensation shall not be less than twenty-two and two-ninths percent (22 2/9 %) of the said average weekly wage per week. Subject to the provisions of §2332 of this Title, this compensation shall be paid during four hundred (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 eighteen (18) years, or if enrolled as a full-time student in an accredited educational institution, until such child ceases to be so enrolled or reaches the age of twenty-five (25) years, and in the case of a widow or widower entitled to compensation under this section the compensation shall continue after such period of 400 weeks until the widow or widower dies or remarries. 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 ten dollars ($10.00) per week unless the total maximum benefits are being paid.

(c) Compensation shall be payable under this section to or on account of any brother or sister only if and while such brother or sister is under the age of eighteen (18) years. Compensation shall be payable under this section to or on account of any child only if and while such child is under the age of 18 years, or if over 18 years and enrolled as a fulltime student, until such time as such child ceases to be so enrolled or reaches the age of twenty-five (25) years.

(d) Compensation shall be payable under this section to a widow or widower: 1) if living with deceased at the time of death; 2) if receiving or had the right to receive support at the time of death; 3) if deserted prior to and continued at the time of death; otherwise, compensation shall be distributed to the persons who would be dependents in case there was no widow or widower.

(e) Compensation payable 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 may require payments to be made directly 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, expense of securing the appointment of a guardian would be disproportionate to the amount of compensation payable to such minor.

(f) 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 computed at the same rate as would have been payable to the remaining persons had they been the only persons entitled to compensation at the time of the death of the deceased, which computation shall be based upon the rates in effect at the time of the death of the deceased.

(g) Should any dependent of a deceased employee die, or should the widow or widower remarry, the right of such dependent or such widow or widower to compensation under this section shall cease. However, two years' indemnity benefits in one lump sum shall be payable to a widow or widower upon remarriage.

Section 15. The provisions of this Act shall take effect on July 1, 1975.

Approved July 17, 1974.