MASTERS, APPRENTICES AND EMPLOYEES. THE DELAWARE WORKMEN'S COMPENSATION LAW OF 1917.
AN ACT relating to the liability of employers for injuries to or death of their employees in certain cases; to promote the prevention of work accidents; to cause provision to be made for medical and surgical care for injured employees in order to reduce resultant disability for work; to establish rates of compensation for personal injuries and death of employees arising out of and in the course of their employment; to designate the persons entitled to receive such compensation; to provide methods for insuring the payment and for the payment of such compensation; and to establish an industrial accident board, define its powers, regulate its proceedings and provide for a review of its awards, being an amendment to Chapter 90, of the Revised Code of Delaware, entitled, "Masters, Apprentices and Employees," by the addition of a new article thereto, entitled, "Masters, Apprentices and Employees—Article 5--The Delaware Workmen's Compensation Law of 1917."
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:
That Chapter 90 of the Revised Code of the State of Delaware, be and the same is hereby amended by adding a new Article thereto, entitled, "Masters, Apprentices and Employees--Article 5--The Delaware Workmen's Compensation Law of 1917" and the following new Sections to be styled as 3193a Section 94 to 3193xx. Section 143, inclusive.
3193 a. Section 94. This Article shall go into effect on the first day of September, A. D. 1917, and shall be briefly known as and cited as "The Delaware Workmen's Compensation Law of 1917."
3193 b. Section 95. In any action instituted by any person whatsoever on or after the first day of September, A. D. 1917, to recover damages for personal injury sustained by an employee by accident arising out of and in the course of his employment within this State on or after said date, or for death resulting from injury so sustained, it shall not be a defense:
(a) That the injury or death was caused in whole or in part by the want of ordinary or reasonable care of, or by the negligence of, a fellow employee; or
(b) That the employee had either expressly or impliedly assumed the risk of the injury; or
(c) That injury was caused in any degree by the negligence of such employee; but the foregoing provisions of this Section shall not apply to an action instituted by any person whatsoever to recover damages for injuries to or death of an employee who shall have elected not to operate under the compensatory provisions of the subsequent sections of this Article, nor to an action instituted against any employer to recover damages for injuries to or death of an employee, when such employer shall have elected to operate under the compensatory provisions of the subsequent sections of this Article ; provided, however, that when both the employer and the employee shall have elected not to operate under the compensatory provisions of the subsequent sections of this Article, then and in such case the employer shall be deprived of the right of interposing the defenses mentioned in this section the same as though he alone had rejected the terms of the subsequent sections of this Article.
3193 c. Section 96. In any action at law contemplated by the last preceding section, the plaintiff shall be required to file with his declaration or other first pleading, a certificate of the Industrial Accident Board showing the status of the injured employee and his employer at the time of the injury, with respect to election or refusal of the employee and employer to be bound by the compensatory provisions of this Article.
3193 d. Section 97. Every employer and employee shall be conclusively presumed to have elected to be bound by the compensatory provisions of this Article and to have accepted the provisions of this Article, respectively, to pay and to accept compensation for personal injury or death by accident arising out of and in the course of the employment, regardless of the question of negligence, and to the exclusion of all other rights and remedies, unless prior to such injury or death, either party shall have given notice to the other party in the time and manner hereinafter specified. A like presumption shall exist in the case of all minors employed unless the notice above referred to be given by or to the parent or guardian of such minor. Every election to be bound by the compensatory provisions of this Article shall be conclusively presumed to be co-extensive with the contract of hire between the employer and employee.
3193 e. Section 98. Either an employer or an employee who has excepted himself by proper notice, from the operation of the compensatory provisions of this Article, may at any time, waive such exemption and thereby accept the compensatory provisions of this Article by giving the notice provided in 3193 f. Section 99 hereof.
3193 f. Section 99. Notice of election not to be bound as set forth in 3193 d. Section 97 hereof, and notice of acceptance as set forth in 3193 e. Section 98 hereof, shall be made in the following manner:
(a) By the employer by causing a printed notice thereof, in large type, to be posted in a conspicuous place in the plant, shop, office, room or place where the employee is employed, and where it may readily be seen by his employees, or by serving such notice personally upon the employee. The employer shall also immediately following the posting or serving of such notice, file with the Industrial Accident Board, an affidavit showing compliance with the above provisions of this Section with respect to the posting or serving of such notice.
(b) By the employee by mailing to his employer at the place where said employee is employed, or to the employer's office or place of business, a written declaration in ordinary language of such election or acceptance; or by serving such written declaration personally upon the employer or any of his agents upon whom a summons in a civil action may be served under the laws of the State. The employee shall also immediately following the mailing or serving of such notice, file with the Industrial Accident Board, an Affidavit showing compliance with the above provisions of this Section with respect to mailing or serving of such notice. Any such notice mentioned in this Section shall be given thirty days prior to any accident resulting in injury or death; provided, that if any such injury occurred less than thirty days after the date of employment, notice of such exemption or acceptance given at the time of employment shall be sufficient notice thereof. Election by both the employer and employee to be bound as set forth in this Section shall operate as a surrender by said parties of their rights to any other form or amount of compensation or damages for any injury or death arising out of and in the course of the employment or to any method of determination thereof other than as provided in the compensatory provisions of this Article, and when at the time of any injury, both the employer and employee are bound as aforesaid, all other persons whatsoever having any rights of any character, with respect to, or growing out of such injury, or death resulting therefrom, shall also be bound.
3193 g. Section 100. No agreement, rule, regulation or other device shall in any manner operate to relieve any employer or employee in whole or in part from any liability created by this Article, except as herein specified.
3193 h. Section 101. No compensation shall be paid under this Article for any injury which does not incapacitate the employee for a period of fourteen calendar days from earning full wages, but if incapacity extends beyond the period of fourteen calendar days, compensation shall begin on the fifteenth day after the injury; provided, however, that during said fourteen days, the employer shall, if so requested by the employee, or if so ordered by the Industrial Accident Board, furnish free of charge to the injured employee, all medical and surgical aid and assistance that may be reasonably required, including hospital service, not to exceed Twenty-five Dollars in value.
3193 i. Section 102. 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 Dollars, but without deduction of any amount theretofore paid for compensation or for medical expenses.
3193 j. Section 103. The following schedule of compensation is hereby established for injuries resulting in disability:
(a) For the first two hundred and seventy weeks after the fourteenth day of total disability for work, fifty per centum of the wages received at the time of injury, but the compensation shall not be more than ten dollars per week, nor less than four dollars per week ; provided that, if at the time of injury, the employee receives wages of less than four dollars per week, then he shall receive the full amount of such wages per week as compensation. And after the first two hundred and seventy weeks of total disability for work, for the remainder of the life of the employee, twenty per centum of the wages received at the time of the injury, but the compensation shall not be more than six dollars per week, nor less than two dollars per week ; provided, that, if at the time of the injury, the employee received wages of less than two dollars per week, then he shall receive the full amount of such wages as compensation. Nothing in this sub-section (a) shall require the payment of compensation after disability shall cease. Should total disability be followed by partial disability, the period of two hundred and seventy weeks mentioned in this sub-section (a) shall be reduced by the number of weeks during which compensation was paid for such total disability. The foregoing provisions of this sub-section (a) are subject to the proviso that in no case shall the total compensation exceed the sum of Four Thousand Dollars.
(b) For disability for work partial in character, (except the particular cases mentioned in the next succeeding sub-section (c) of this Section), fifty per centum of the difference between the wages received before the injury and the wages at which the employee is actually employed after the injury, but such compensation shall not be more than ten dollars per week. This compensation shall be paid during the period of such partial disability for work, not, however, beyond two hundred and seventy weeks after the fourteenth day of such disability. Should partial disability for work be followed by total disability for work, the period of two hundred and seventy weeks mentioned in this subsection (b) shall be reduced by the number of weeks during which compensation was paid for such partial disability.
(c) For all disability for work resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:
For the loss of a hand, fifty per centum of wages during one hundred and fifty-eight weeks.
For the loss of an arm, fifty per centum of wages during one hundred and ninety-four weeks.
For the loss of a foot, fifty per centum of wages during one hundred and thirty-five weeks.
For the loss of a leg, fifty per centum of wages during one hundred and ninety-four weeks.
For the loss of any eye, fifty per centum of wages during one hundred and thirteen weeks.
For the loss of any two or more of such members, not constituting total disability for work, fifty per centum of wages during the aggregate of the period specified for each.
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 of one leg, or of one arm, or an injury to the skull resulting in incurable inbecility or insanity, shall constitute total disability for work, to be compensated according to the provisions of sub-section (a). Amputation between the elbow and the wrist, shall be considered as the equivalent of the loss of a hand, and amputation between the knee and ankle shall be considered as the equivalent of the loss of a foot. Amputation at or above the elbow shall be considered as the loss of an arm, and amputation at or above the knee shall be considered as the loss of a leg. Permanent 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 ten dollars per week, nor less than four dollars per week; provided that, if at the time of injury, the employee receives wages of less than four dollars per week, then he shall receive the full amount of such wages per week as compensation.
(d) Should the employee die as a result of the injury, the period during which compensation shall be payable to his dependents under the next succeeding section shall be reduced by the period during which compensation was paid to him in his lifetime under this Section of this Article. No reduction shall be made for the amount which may have been paid for medical, surgical and hospital services and medicines nor for the expenses 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, expenses of last sickness and burial of such employee, shall cease.
3193 k. Section 104. 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 per centum
of wages of deceased, with ten per centum additional for each child in excess of two, with a maximum of sixty per centum, to be paid to their guardian.
2. To the widow or widower, if there be no children, twenty-five per centum of wages.
3. To the widow or widower, if there be one child, forty per centum of wages.
4. To the widow or widower, if there be two children, forty-five per centum of wages.
5. To the widow or widower, if there be three children, fifty per centum of wages.
6. To the widow or widower, if there be four children, fifty-five per centum of wages.
7. To the widow or widower, if there be five children or more, sixty per centum of wages.
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 Industrial Accident Board may from time to time, apportion such compensation between them in such way as it deems best. The Industrial Accident 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 Industrial Accident 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 per centum of 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 per centum of wages for one brother or sister, and five per centum additional for each additional brother or sister, with a maximum of twenty-five per centum; 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 and sister, is under the age of sixteen 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 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 re-marry, 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, provided, however, that the period shall be reduced by the number of weeks during which payments were made to the deceased.
The wages upon which death compensation shall be based shall not in any case be taken to exceed twenty dollars per week nor to be less than eight dollars per week. Subject to the provisions of sub-section (d) of the last preceding section, this compensation shall be paid during two hundred and seventy weeks and in the case of children entitled to compensation under clause 1 of this section, the compensation of each child shall (if the other parent be dead or have abandoned such child) continue until such child reach the age of sixteen, at the rate of fifteen per centum of wages if there be but one child, with ten per centum additional for each additional child, with a maximum of sixty per centum.
3193 1. Section 105. Unless the employer shall have actual knowledge a the occurrence of the injury, or unless the employee or someone on his behalf, or some of the dependents, or someone on their behalf, shall give written or printed notice thereof to the employer within fourteen days after the accident, no compensation shall be due until such notice be given or knowledge obtained. If such notice be given or the knowledge obtained after fourteen days, but within thirty days after the accident, the delay shall not bar compensation unless the employer shall show that he was prejudiced thereby, and then only to the extent of such prejudice. If such notice be given or the knowledge obtained after thirty days but within ninety days after the accident, and if the employee or other beneficiary shall show that his delay in giving notice was due to his mistake or ignorance of fact or of law, or to his physical or mental inability, or to fraud, misrepresentation or deceit, of the employer or someone authorized to represent such employer, or to any other reasonable cause or excuse, then compensation shall be allowed, except to the extent that the employer shall show that he was prejudiced by such delay.
Unless knowledge be obtained or such notice given within ninety days after the accident, no compensation shall be allowed.
The notice referred to in this Section shall be in writing and shall be sufficient to inform the employer that a certain employee, by name and residence, received an injury by accident (the character of which is described in ordinary language), arising out of and in the course of his employment on or about a time specified and at or near a place specified.
3193 m. Section 106. After an injury, and during the period of resulting disability, the employee, if so requested by his employer, or ordered by the Industrial Accident Board, must submit himself for examination at reasonable times and places and as often as may be reasonably requested, to a physician or physicians legally authorized to practice his or their profession under the laws of such place, who shall be selected and paid by the employer. If the employee requests, he shall be entitled to have a physician or physicians, qualified as aforesaid, of his own selection, to be paid by him, present to participate in such examination. For all examinations after the first, the employer shall pay the reasonable travelling expenses and loss of wages incurred by the employee in order to submit to such examination. The refusal of the employee to submit to such examination or his obstruction of such examination shall deprive him of the right to compensation under this Act during the continuance of such refusal or obstruction, and the period of such refusal or obstruction shall be deducted from the period during which compensation would otherwise be payable. No fact communicated to or otherwise learned by any physician or surgeon who may have attended or examined the employee, or who may have been present at any examination, shall be privileged either in the hearings provided for in this article, or in any action at law.
3193 n. Section 107. If the employer and the injured employee, or his dependents in case of his death reach an agreement in regard to compensation in accordance with the provisions of this Article, a memorandum of such agreement, signed by the parties in interest, shall be filed with the Industrial Accident Board, and if approved by it, shall be deemed final and binding unless modified as provided in 3193 p. Section 109. Such agreement shall be approved by said Board only when the terms thereof conform to the provisions of this Article.
3193 o. Section 108. If the employer and the employee, or his dependents in case of his death, fail to reach an agreement in regard to compensation under this Article, or if, after they reach such an agreement, the Industrial Accident Board shall refuse to approve the same, either party may notify the Industrial Accident Board of the facts, and the said Board shall thereupon, after notice of the time and place of hearing served on all parties in interest, hear and determine the matter in accordance with the facts and the law, and state its conclusion of fact and rulings of law.
3193 p. Section 109. On the application of any party in interest on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred, or that the status of the dependent has changed, the Board may at any time, but not oftener than once in six months, review any agreement or award, and on such review may make an award ending, diminishing, increasing or renewing the compensation previously agreed upon or awarded, and designating the persons entitled thereto, subject to the provisions of this Article, and shall state its conclusions of fact and rulings of law, and immediately send to the parties, a copy of the reward, but this section shall not apply to a commutation of payments under 3193 t. Section 113.
3193 q. Section 110. In all hearings before the Board, it shall make such inquiries and investigations as it shall deem necessary. The hearings of the Board shall be held at some reasonable location in the City or County where the injury occurred, and each award of the Board shall be in writing and shall be filed among its records, and a copy thereof shall be served on each of the parties in interest within one week after the making of such award.
3193 r. Section 111. An award of said Board in the absence of fraud shall be final and conclusive between the except the parties except as provided in 3193 p. Section 109, unless, within ten days after a copy thereof has been sent to the parties, either party appeals to the Superior Court for the County in which the injury occurred. In case of every such appeal, the cause shall be determined by the Court without the aid of a jury. The Prothonotary shall not require any deposit or security to cover the costs incident to the taking of any such appeal.
The Superior Courts for the several counties of the State of Delaware are hereby vested with jurisdiction to hear and determine all appeals taken pursuant to this Article. Said Courts may, by proper rules, prescribe the procedure to be followed in the case of such appeals, provided however, that the Court shall fix a time for such hearings at the pending or next term of said Court after the date of such appeal, but the Court may extend the time for adequate cause shown.
The decision of the Court shall be in writing and shall show conformity to the provisions of this Article, and shall be filed with the Prothonotary of said Court, and such Prothonotary shall file a certified copy thereof with the Industrial Accident Board. When any such certified copy of the decision of said court shall be filed as aforesaid, it shall be subject to the provisions of 3193 p. Section 109, and if the Board shall, in accordance with the provisions of 3193 p. Section 109, end, diminish, increase or renew the compensation, then and in such case there shall be the same right of appeal as is above provided in this Section.
Costs may be awarded by said Court in its discretion, and when so awarded, the same costs shall be allowed, taxed and collected as are allowed, taxed and collected for like services in the same Court. Upon the hearing of any appeal, the Court may, in its discretion, appoint one or more impartial physicians or surgeons to examine the injuries of the claimant and to report thereon to the Court. Said Court shall have power to fix the compensation of such physicians or surgeons, and to tax the same as a part of the costs of the proceedings. Such report shall not be conclusive of the facts therein stated, but shall be advisory only.
3193 s. Section 112. Compensation under this Article to non to aliens alien dependent widows and children not residents of the United States, shall be the same in amount as is provided in each case for residents, except, that at any time within one year after the death of the injured employee, the employer may, at his option, commute all future installments of compensation to be paid to alien dependents not residents of the United States, by paying to such alien dependents two-thirds of the total amount of such future installments of compensation. Alien widowers, parents, brothers, and sisters not residents of the United States shall not be entitled to any compensation.
3193 t. Section 113. The compensation contemplated by this Article may be commuted by said Industrial Accident Board at its present value when discounted at five per cent interest, with annual rests, disregarding (except in commuting payments due under sub-section (a) 3193 j. Section 103, of this Article) the probability of the beneficiary's death, upon application of either party, with due notice to the other, if it appear that such commutation will be for the best interest of the employee or the dependents of the deceased employee, or that it will avoid undue expense or undue hardship to either party, or that such employee or dependent has removed or is about to remove from the United States, or that the employer has sold or otherwise disposed of the whole or the greater part of his business or assets.
Upon paying such amount, the employer shall be discharged from all further liability on account of the injury or death. Commutation shall not be allowed for the purpose of enabling the injured employee or the dependents of a deceased employee to satisfy a debt, (other than a mortgage upon his or their home or household furniture, created before the accident).
3193 u. Section 114. At any time after the entry of the award, or after the filing of the agreement for compensation, a sum equal to all future installments of compensation may (where death or the nature of the injury renders the amount of future payments certain) by leave of the Industrial Accident Board, be paid by the employer to any Trust Company approved by said Board and chartered and doing business in this State and having an office in the County in which the award was entered, and such sum, together with all interest arising from the investment thereof, shall thereafter be held in trust for the employee, or his dependents, who shall have no further recourse against the employer.
Such payment of such sum by the employer shall operate as a satisfaction of such award or agreement as to the employer.
Payments from said fund shall be made by the said Trustee on orders from the Industrial Accident Board in the same amounts and at the same periods as are herein required of the employer. If, after liability shall have ceased, any balance of said fund shall remain, the same shall be returned to the employer who deposited the same, on an order signed as aforesaid.
3193 v. Section 115. In case of personal injury, all claims for compensation shall be forever barred unless, within one year after the accident, the parties shall have agreed upon the compensation as before provided, or unless, within one year after the accident, one or more of the interested parties shall have appealed to the Industrial Accident Board as in this Article provided. In cases of death, all claims for compensation shall be forever barred, unless, within one year after the death, the parties shall have agreed upon the compensation as before provided, or unless, within one year after the death, one or more of the interested parties shall have appealed to the Industrial Accident Board as in this Article provided. Where, however, payments of compensation have been made in any case, said limitation shall not take effect until the expiration of one year from the time of the making of the last payment.
3193 w. Section 116. The Governor shall, within thirty days after the approval of this Article by the Governor, appoint three competent persons to be known as the "Industrial Accident Board," which Board shall have jurisdiction of all cases arising under the compensation schedule of this Article. Such appointments shall originally be as follows:
One member shall be appointed for the term of two years, another for the term of four years, and another for the term of six years. Thereafter, as the terms of office of members expire, either by death, resignation, removal from the State, or otherwise, appointments shall be made for terms of six years each.
Each person appointed under the provisions of this Section shall hold office until his successor is appointed and qualified. The Governor may remove any member of said Board with or without cause. Each member, before entering upon the duties of his office, shall take the Constitutional oath required of State officers. Said Board shall provide itself with a seal for authentication of its orders, awards and proceedings, upon which shall be inscribed the words---"Industrial Accident Board—Delaware--Seal."
The Board shall organize by choosing one of its members as President and may appoint a Secretary to be selected by the Board at a salary not exceeding Twenty-five Hundred Dollars per year, and may remove said Secretary with or without cause, and appoint a successor. The Board may also employ such clerical and other assistants as it may deem necessary, and subject to like approval, fix the compensation of all persons so employed.
The members of said Board and its assistants shall be entitled to receive from the State, their actual and necessary expenses while traveling on the business of the Board, but such expense shall be sworn to by the person who incurred the same, and any such person falsely making any such report shall be guilty of perjury and punishable accordingly. The salary of the members of the Board and its assistants shall be paid monthly in the same manner as the salaries of State officers are paid, and the expenses of said Board, after approval by two members and the State Auditor, shall be paid by the State Treasurer out of the general funds of the State.
It shall be the duty of said Board to maintain and keep open during reasonable hours, an office adequate for the transaction of its business. It shall keep a record of all its proceedings and such other books and records as shall be required by the proper and efficient administration of this Article.
It shall hear disputes as to compensation to be paid under the provisions of this Article, make its own rules of procedure for carrying out the provisions of this Article, furnish blanks for information, record all awards, and shall have power to compel the attendance of witnesses.
It shall have power to issue subpoenas and administer oaths in any proceeding and in all other cases where it may be necessary in the exercise of its powers and duties, and to examine persons as witnesses, take evidence, require the production of documents, and do all other things conformable to law which may be necessary to enable it effectively to discharge the duties of office. Such oaths may be administered and such subpoenas issued by any member of said Board. Any subpoena, process, or order of said Board, or any notice or paper requiring service, may be served by any Sheriff, Deputy Sheriff, Constable, or any employee of the Board, and return thereof made to said Board. Such officer shall receive the same fees as are now provided by law for like service in civil actions; provided, however, that the employee of the Board serving such notice shall not receive any fee, but shall be paid his actual expenses. If any person shall, in proceedings before said Board, disobey or resist any lawful order or process, or misbehave during a hearing or so near the place thereof as to obstruct the same, neglect to produce after having been ordered to do so, any pertinent document, or refuse to appear after having been subpoenaed, or upon appearing, refuse to take the oath as a witness, or after having taken the oath, refuse to be examined according to law, said Board shall certify the facts under the hand of its Secretary or President to any Judge of the Supreme Court of the State of Delaware, who shall thereupon hear the evidence as to the acts complained of, and if the evidence so warrant, punish such person in the same manner and to the same extent as for a contempt committed before the Superior Court of the State of Delaware, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of said Court.
The Court may, with or without notice to either party, cause testimony to be taken or inspection of the premises where the injury occurred to be had, or the time-books or the pay-roll of the employer to be examined.
A majority of the Board shall constitute a quorum for the exercise of any of the powers or authority conferred by this Article, and a decision or an award by a majority shall be valid. Each member of the Board shall receive an annual salary of Twenty-five Hundred Dollars. Said Board, may in any case, upon the application of either party, or on its own motion, appoint a disinterested and duly qualified physician to make any necessary medical examination of the employee, and testify in respect thereto. Said physician shall be allowed a reasonable fee to be fixed by said Board, not exceeding five dollars for each examination, which shall be included by said Board in its expense account; provided, however, that said Board shall in every case receive the testimony of any physician called by either the employer, or the employee, or the dependents of such employee.
Witness fees and mileage shall be computed at the rate allowed to witnesses in the Superior Court of the State of Delaware. Costs legally incurred may be taxed against either party, or apportioned between the parties in the sound discretion of said Board, as the justice of the case may require.
Said Board shall inquire into the causes and results of industrial accidents of every character, study the most advanced methods of safe-guarding against such accidents, inquire into the subject of fair compensation for those who are injured in such accidents and for the families of those who shall be killed as a result thereof, study the operation and effect of this Article, and make a full report in writing of its findings, together with such recommendations as it may deem proper, at each session of the General Assembly of the State of Delaware. The Board shall prepare and cause to be printed and upon request, furnish free of charge to any employer or employee, such blank forms and literature as it shall deem requisite to facilitate and promote the efficient administration of this Article.
3193 x. Section 117. Every employer bound by the compensatory provisions of this Article, shall hereafter keep a record of all injuries, fatal or otherwise, received by his ) employees in the course of their employment, within ten days after knowledge of the occurrence of an accident resulting in personal injury, a report thereof shall be made in writing by the employer to the Industrial Accident Board on blanks to be procured from said Board for that purpose. Upon the termination of the disability of the injured employee, the employer shall make a supplemental report to the Board. The said reports shall contain the name and nature of the business of the employer, the location of his establishment or place of work, the name, age, sex, and occupation of the injured employee, and state the time, the nature and cause of the injury, and such other information as may be required for properly carrying out the provisions of this Article. Any employer who refuses or neglects to make a report required by this Section shall, upon conviction before any Justice of the Peace of this State, be punished by a fine of not less than ten dollars nor more than fifty dollars for each offense, and in default of the payment of such fine may be imprisoned for any period not exceeding twenty days.
Reports made in accordance with this Section shall not be evidence against the employer in any proceedings under this Article or otherwise, but shall be exclusively for the information of said Board in securing data to be used in connection with the performance of their duties in making recommendations to the General Assembly as hereinbefore provided.
3193 y. Section 118. Every employer who accepts the compensation provisions of this Article shall insure the payment of compensation to his employees, or their dependents, in the manner hereinafter provided, and while such insurance remains in force, he shall be liable to any employee, or his dependents for personal injury or death by accident only to the extent and in the manner herein specified.
3193 z. Section 119. Every employer under this Article shall either insure or keep insured his liability hereunder in some corporation, association or organization approved by the Industrial Accident Board and authorized to transact the business of Workmen's Compensation Insurance in this State, or shall furnish to the Industrial Accident Board satisfactory proof of his financial ability to pay direct the compensation in the amount and manner and when due as provided for in this Article. In the latter case, the Board may, in its discretion, require the deposit of an acceptable security, indemnity or bond to secure the payment of compensation liabilities as they are incurred.
3193 aa. Section 120. Every employer accepting the compensation provisions of this Article shall within sixty days after this Article takes effect, file with said Board in form prescribed by it, and thereafter annually, or as often as may be required by said Board, evidence of his compliance with the provisions of 3193 z. Section 119 of this Article and all other sections relating thereto.
If an employer refuses or neglects to comply with these provisions, he shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of ten cents per day for each employee in his service at the time when the insurance became due, but not less than one dollar nor more than fifty dollars for each day of such refusal or neglect and until the same ceases, and shall be liable, during continuance of such neglect or refusal, to his injured employees, either for compensation under this Article, or in an action at law for damages, in which last case, upon proof that he has not complied with this Section, it shall not be a defense in such action:
(a) That the employee was negligent; or
(b) That the employee had assumed the risk of the injury; or
(c) That the injury was caused by the negligence of a fellow employee.
Furthermore, if after the first day of January, 1918, any employer shall be in default under 3193 z. Section 119 for a period of thirty days, he may be enjoined by the Court of Chancery of this State from carrying on his business while such default continues.
3193 bb. Section 121. Whenever an employer had complied with the provisions of 3193 z. Section 119 of this Article relating to self-insurance, the Industrial Accident Board shall issue to such employer, a certificate which shall remain in force for a period fixed by the Board, but the Board may, upon at least sixty days’ notice and a hearing to the employer, revoke the certificate upon satisfactory evidence for such revocation having been presented. After the expiration of one year from such revocation, the Board may grant a new Certificate to the employer upon his petition.
3193 cc. Section 122. For the purpose of complying with the provisions of 3193 z. Section 119 of this Article, groups of employers may form mutual insurance associations under the laws of this State, subject to such reasonable conditions and restrictions as may be fixed by the Industrial Accident Board. Membership in such mutual insurance associations, so approved, together with evidence of the payment of premium dues, shall be evidence of compliance with the provisions of 3193 z. Section 119, of this Article.
3193 dd. Section 123. Subject to the approval of the Industrial Accident Board, any employer may enter into or continue any agreement with his employees to provide a system of compensation, benefit or insurance, in lieu of the compensation and insurance provided by this Article.
No such substitute system shall be approved unless it confers benefits upon injured employees at least equivalent to the benefits provided by this Article, nor if it requires contributions from the employees, unless it confers benefits in addition to those provided under this Article at least commensurate with such contributions. Such substitute system may be terminated by the Industrial Accident Board on reasonable notice and hearing to the interested parties, if it shall be shown that the same is not fairly administered or if its operation shall disclose latent defects threatening its solvency, or if for any substantial reason, it fails to accomplish the purposes of this Article; and in this case the Board shall determine upon the proper distribution of all remaining assets if any, subject to the right of any party in interest to take an appeal to the Superior Court of this State.
3193 ee. Section 124. All policies insuring the payment of compensation under this Article, must contain a clause to the effect that as between the employee and the insurer, the notice to or knowledge of the occurrence of the injury or death on the part of the insured shall be deemed notice or knowledge as the case may be, on the part of the insurer; that jurisdiction of the insured for the purposes of this Article shall be jurisdiction of the insurer; and that the insurer shall in all things be bound by and subject to the awards, judgments or decisions rendered against such insured.
3193 ff. Section 125. No policy of insurance against Iiability arising under this Article shall be issued, unless it contains the agreement of the insurer that it will promptly pay to the person entitled to same, all benefits conferred by this Article and all installments of the compensation that may be awarded or agreed upon, and that the obligation shall not be affected by any default of the insured after the injury, or by any default in the giving of any notice required by such policy or otherwise. Such agreement shall be construed to be a direct promise by the insurer to the person entitled to compensation enforcible in his name.
3193 gg. Section 126. Every policy for insurance of the liability herein specified shall be deemed to be subject to the provisions of this Article. No corporation, association, or organization shall issue any such policies of insurance unless the form of policy and the stability of the company shall have been approved by the Industrial Accident Board, provided, however, that the Industrial Accident Board may permit the issuance of Policies insuring against the loss from segregated risks of employment if in the judgment of the Board all the risks of the same employment are sufficiently covered by other policies of insurance or otherwise insured by the employer. Such policies for segregated risks shall be deemed to be limited in their scope to the particular risks mentioned therein. All questions as to the liability under such policies for segregated risks and other policies or forms of insurance shall be determined by the Industrial Accident Board.
3193hh.Section 127. Except as herein otherwise provided, all compensation payable under the compensatory made provisions of this Article, shall be payable in periodical installments, as the wages of the employee were payable before the accident; provided, however, that the Industrial Accident Board, may in its discretion, having regard to the welfare employee and the convenience of the employer, authorize compensation to be paid monthly or quarterly instead of weekly.
3193 ii. Section 128. No contractor or sub-contractor shall receive compensation under this Article, but shall be deemed to be an employer, and all rights of compensation of the employees of any such contractor or sub-contractor, shall be against their said employer and not against any other employer.
3193 jj. Section 129. If any employee be injured as a employee result of his intoxication, or because of his deliberate and reckless indifference to danger, or because of his willful intention to bring *being about the injury or death of himself, or of another, or because of his willful failure or refusal to use a reasonable safety appliance provided for him, or to perform a duty required by statute, he shall not be entitled to recover damages in an action at law, or compensation, or medical or hospital service under the compensatory provisions of this Article. The burden of proof under the provisions of this section shall be on the defendant employer.
3193 kk. Section 130. Whenever any employee for whose injury or death, compensation is payable under this Article, at the time of the injury, be in the joint service of two or more employers subject to this Article, such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employee, regardless of the question for whom such employee was actually working at the time of the injury.
3193 ll, Section 131. Whenever an injury for which compensation is payable under this Article shall have been sustained under circumstances creating in some other person than the employer, a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this Article, or obtain damages from, or proceed at law against such other person to recover damages, but he shall not proceed against both; and if compensation is awarded under this Article, the employer having paid the compensation or having become liable therefor, shall be subrogated to the rights of the injured employee, or of his dependents to recover damages against such third person, and may recover in his own name or that of the injured employee from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employee. Any recovery against such third person in excess of the compensation theretofore paid and thereafter payable by the employer (less the cost of securing and collecting same) shall be paid forthwith, when collected, to the employee or the dependents.
3193 mm. Section 132. The right of compensation granted by this Article shall have the same preference or priority for the whole amount thereof against the assets of the employer as is now or hereafter may be allowed by law for unpaid wages for labor.
Claims or payment for compensation due or to become due under this Article shall not be assignable, and all compensation and claims therefor shall be exempt from all claims of creditors. If default shall be made by the employer for thirty days after demand, in the payment of any amount due under this Article, the same may be recovered in the same manner as claims for wages are now collectible.
Fees of attorneys and physicians for services under the provisions of this Article shall be subject to the approval of the Industrial Accident Board.
3193 nn. Section 133. If an injured employee refuses employment suitable to his capacity, procured for him, he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Accident Board, such refusal was justifiable, and if an employee receives an injury for which compensation is payable, after having received an injury in another employment, he shall be entitled to compensation by the subsequent employer (not being the employer for whom he worked at the time of the former injury) for the subsequent injury in the same amount as if the previous injury had not occurred.
3193 oo. Section 134. Wherever in this Article the singular is used, the plural shall be included; where the masculine gender is used, the feminine and neuter shall be included.
3193 pp. Section 135. The following shall constitute employers subject to the provisions of this Article:
Every person, firm, association and corporation, (excepting the employers mentioned in 3193 vv. Section 141 and 3193 ww. Section 142 hereof), having in his or its service any employee as defined in 3193 qq. Section 136 of this Article. If the employer is insured, it shall include his insurer as far as practicable.
3193 qq. Section 136. The term "employee" as used in this Article shall be construed to mean:
Every person in the service of every natural person, firm, association and corporation (excepting the employees mentioned in 3193 vv. Section 141 and 3193 ww. Section 142 hereof) under any contract of hire for a valuable consideration, but not including 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 given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale in the worker's own home, or on other premises not under the control or management of the employer.
3193 rr. Section 137. The terms "injury" and "personal injury" as used in this Article, shall be construed to mean only violence to the physical structure of the body and such disease or infection as naturally results directly therefrom when reasonably treated; and whenever death is mentioned as a cause for compensation under this Article, it shall mean only death resulting from such violence and its resultant effects when reasonably treated as aforesaid, and occurring within two hundred and seventy weeks after the accident.
3193 ss. Section 138. The term "personal injury sustained by accident arising out of and in the course of the employment:"
(a) 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.
(b) It shall not include any injury caused by the willful act of another directed against him by reasons personal to such employee and not directed against him as an employee or because of his employment.
(c) It shall not include a disease or infection, except as it shall result from the injury when reasonably treated.
3193 tt. Section 139. The term "dependent" shall include all persons other than the injured employee who are entitled to compensation under the provisions of the elective schedule set forth in this Article, and wherever the context requires it shall be held to include the personal representatives, and the widow or widower of the deceased, and guardians of infants or trustees for incompetent persons.
3193 uu. Section 140. Wherever in this Article the term "wages" is used, it shall be construed to mean the money rate at which the services rendered is recompensed under the contract of hiring in force at the time' of the accident, and shall not include gratuities received from the employer or others, nor shall it include board, lodging or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring. In occupations involving seasonal employment or employments dependent upon the weather, the employee's weekly wages shall be taken to be one-fiftieth of the total wages which he has earned from all occupations during the year immediately preceding the accident, unless it be shown that during such year, by reason of exceptional causes, such method of computation does not fairly ascertain the earnings of the employee, in which case the period for calculation shall be extended so far as to give a basis for the fair ascertainment of his average weekly earnings. In continuous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour, or by the output of the employee, his weekly wages shall be found by dividing the total amount earned, excluding earnings from overtime, during so much of the preceding six months as he worked for the same employer, by the number of weeks, or fraction thereof, in such period. If the employee had been permanently advanced or demoted in position or his rate of wages permanently increased or decreased within such period, only the earnings and number of weeks in such position or at such rate should be considered in computing his average weekly wage.
3193 vv. Section 141. This Article shall not apply to not apply to farm laborers, domestic servants, officers and servants of the State, or any governmental agency created by it, nor to their respective employers ; nor to the employers or employees in any employment in which less than five persons are employed.
3193 ww. Section 142. This Article shall not apply to employees injured or killed while engaged in Interstate or foreign commerce, nor to their employers, in case, and whenever, the laws of the United States provide for compensation or for liability for such injury or death.
3193 xx. Section 143. If any portion of this Article shall be held unconstitutional, the whole Article shall become ineffective and void.
This Act shall begin and take effect from the first day of January, A. D. 1918.
Approved April 2, A. D. 1917.