CHAPTER 203.
THE DELAWARE WORKMEN'S COMPENSATION LAW.
AN ACT to Amend An Act Known and Cited as "The Delaware Workmen's Compensation Law of 1917," being Chapter 90 of the Revised Code of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, by Providing for Certain Increases. in Medical Fees and in Compensation in Certain Cases; For Procedure on Appeals; For Decreased Compensation to Non-Resident Alien Dependents; For More Effectually Securing the Payment of Compensation; For Providing a Proper Definition for Wages; and for other purposes.
Be it enacted by the Senate and House of Representatives of the Slate of Delaware in, General Assembly met:
Section 1. That Chapter 90 of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3193 a. Section 94, and the insertion hi lieu thereof, of the following, to be styled 3193 a. Section 94:
3193 a. Section 94. This Act shall be called and cited as "The Delaware Workmen's Compensation Law of 1917," and shall apply to all accidents occurring within this State, irrespective of the place where the contract of hiring was made, renewed or extended, and shall not apply to any accident occurring outside of this State.
Section 2. That Chapter 90 of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, he and the same is hereby amended by the repeal of 3193 h. Section 101, and the insertion in lieu thereof, of the following, to be styled 3193 h. Section 101:
3193h. Section 101. No compensation shall be paid for any injury which does not incapacitate the employee for a period of at least two weeks from earning full wages, but if incapacity extends beyond the period of two weeks, compensation shall begin on the fifteenth day after the injury; provided, however, that if such disability continues for four weeks or longer, such compensation shall be computed from the date of the injury. During the first two weeks after the injury, the employer shall furnish reasonable surgical, medical and hospital services, medicines and supplies, as and when needed, unless the employee refuses to allow them to be furnished by the employer. The cost or such services, medicines and supplies shall not exceed seventy-five dollars. If the employer shall, upon application made to him, refuse to furnish such services, medicines and supplies, the employee may procure the same, and shall receive from the employer, the reasonable cost thereof within the above limitations. If the employee shall refuse reasonable surgical, medical and hospital services, medicines and supplies tendered to him by his employer, he shall forfeit the right to compensation for any injury or any increase in his incapacity shown to have resulted from such refusal.
Section 3. That Chapter 90 of the Revised Code of the State or Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3103 j. Section 103, and the insertion in lieu thereof, of the following, to be styled 3193 j. Section 103:
3193 j. Section 103. The following schedule of compensation is hereby established for injuries resulting in total disability:-
(a) For the first four hundred and seventy-five weeks of total disability, fifty per cent= or the wages of the injured employee as defined by this Act as amended; but the compensation shall not be more than fifteen dollars per week nor less than five dollars per week, and shall not exceed in the aggregate the sum four thousand dollars; provided, that if at the time of injury, the employee receives wages of less than five dollars per week, then he shall receive the full amount of such wages per week as compensation. Nothing in this paragraph (a) shall require the payment of compensation after disability shall cease. Should partial disability be followed by total disability, the period of four hundred and seventy-five weeks mentioned in this paragraph (a) of this Section shall be reduced by the number of weeks during which compensation was paid for such partial disability.
(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 by the injured employee before the injury and the earning power of the employee thereafter, but such compensation shall not be more than fifteen dollars per week. This compensation shall be paid during the period of such partial disability for work; not, however, beyond two hundred and eighty-five weeks. Should total disability for work be followed by partial disability for work, the period of two hundred and eighty-five weeks mentioned in this sub-section (b) shall be reduced by the number of weeks during which compensation was paid for such total disability.
(c) For all permanent injuries of the following classes, the compensation, regardless of the earning power of such injured employee after such injury, 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 an 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, fifty per centum of wages during the aggregate of the period specified for each.
Unless the Board shall otherwise determine from the facts, the loss of both hands, or both arms, or both feet, or both legs, or both eyes, or an injury to the spine resulting in permanent and complete paralysis of both legs, or both arms, or of 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 sub-section (a) of this Section. 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 fifteen dollars per week, nor less than five dollars per week; provided, that, if at the time of injury, the employee receives wages of less than five 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 Iifetime 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.
Section 4. That Chapter 90 of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3193 k. Section 104, and the insertion in lieu thereof, of the following, to be styled 3193 k. Section 104:
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 or 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 and children to whom the deceased stood in loco parentis, if members of the decedent's household at the time of his death, and shall include posthumous children, but shall not include married children.
Should any dependent of a deceased employee die, or should the widow or widower remarry, or should the widower become capable of self-support, the right of such dependent or such widow or widower to compensation under this Section shall cease.
If the compensation payable under this Section to or on account of any person shall for any cause cease, the compensation of the remaining persons entitled thereunder shall thereafter be the same as would have been payable to them had they been the only persons entitled to compensation at the time of the death of the deceased, provided, however, that the period shall be reduced by the number of weeks during which payments were made to the deceased or to any other person or class of persons entitled.
The wages upon which death compensation shall be based shall not in any case be taken to exceed thirty dollars per week nor to be less than ten dollars per week. Subject to the provisions of subsection (1 ) of the last preceding section, this compensation shall be paid during two hundred and eighty-five weeks and in the ease of children entitled to compensation under this Section, the compensation of each child shall continue after such period of two hundred and eighty-five weeks until such child reach the age of sixteen years, 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. Children are not entitled to compensation during the period that compensation is payable to their mother or father, except as herein provided.
Section 5. That Chapter 90 of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3193 r. Section 111, and the insertion in lieu thereof, of the following, to be styled 3193 r. Section 111:
3193 v. Section 111. An award of said Board in the absence of fraud shall be final and conclusive between the parties, except as provided in 3193 p. Section 109, unless, within ten days sifter 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 from the record, (which shall include a typewritten copy of the evidence and the finding and award of the Board), without the aid of a jury, and the Court may reverse, affirm, or modify the award of the Board, or remand the cause to the Board for a rehearing. In case any cause shall be remanded to the Board for a rehearing, the procedure and the rights of all parties to such cause shall be the same as in case of the original hearing before the Board. The Prothonotary shall not require any deposit or security to cover the costs incident to the taking of any appeals under this Article.
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 of 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, and, 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.
Section 6. That Chapter 90 of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3193 s. Section 112, and the insertion in lieu thereof, of the following, to be styled 3193 s. Section 112:
3193 s. Section 112. Compensation under this Article to alien dependent widows and children not residents of the United States, shall be one-half of the amount provided in each case for residents; and the employer may at any time commute all future installments of compensation payable to alien dependents, not residents of the United States, by paying to such alien dependents, the then value thereof, calculated in accordance with the provisions of 3193 t. Section 113 of the Act to which this is an amendment. Alien widowers, parents, brothers and sisters, not residents of the United States, shall not be entitled to any compensation. Non-resident alien dependents may be officially represented by the Consular Officers of the nation of which such alien or aliens may be citizens or subjects, and in such cases, the Consular officers shall have the not be entitled to any compensation. Non-resident alien dependents, all compensation awarded hereunder, and the receipt of such Consular Officers shall be a full discharge of all sums paid to and received by them.
Section 7. That Chapter 90 of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3103 u. Section 114, and the insertion in lieu thereof, of the following, to be styled 3193 u. Section 114:
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 Savings Bank or 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 he returned to the employer who deposited the same, on an order signed as aforesaid.
Section 8. That Chapter 90 of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3193 z. Section 119, and the insertion in lieu thereof, of the following, to be styled 3193 z. Section 119:-
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.
Whenever a self-insurer under this Section shall enter into an agreement to pay compensation to an injured employee or his dependents in case of his death, or whenever an award shall be made by the Board in favor of such injured employee or his dependents in case of his death, the employer shall pay the full liability under said agreement or award to a Savings Bank or Trust Company in accordance with the provisions of 3193 u. Section 114, and the said fund, together with all interest arising from the investment thereof, shall be held and paid out in accordance with the provisions of said last mentioned section. Failure on part of the employer to make such payment within thirty days after such an agreement or award, shall forthwith terminate the right of such employer to carry his own insurance.
Section 9. That Chapter 90 of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3193 rr. Section 137, and the insertion in lieu thereof, of the following, to be styled 3193 rr. Section 137:
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 effect when reasonably treated as aforesaid, and occurring within two hundred and eighty-five weeks after the accident.
Section 10. That Chapter 90.of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3193 uu. Section 140, and the insertion in lieu thereof, of the following, to be styled 3193 uu. Section 140:
3193 uu. Section 140. Wherever in this Act the term "wages" is used, it shall be construed to mean the money rate at which the service 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; nor shall it include amounts deducted by the employer, under the contract of hiring, for labor, material, supplies, tools, or other things furnished or paid for by the employer, and necessary for the performance of such contract by the employee. In occupations involving seasonal employment or employment 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 ascertain fairly 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 taken to be five and one-half times his average earnings at such a rate for a working day of ordinary length, excluding earnings front overtime, and using as a basis of calculation, his earnings during so much of the preceding six months as he worked for the same employer.
Section 11. That Chapter 90 of the Revised Code of the State of Delaware, as amended by Chapter 233, Volume 29, Laws of Delaware, be and the same is hereby amended by the repeal of 3l93 xx, Section 143, and the insertion in lieu thereof, of the following, to be styled 3193 xx, Section 143:
3193 xx. Section 143. This Act shall begin and take effect from the first day of January, A. D. 1918.
If any provision of this Article shall be held to be void or unconstitutional, it is hereby provided that all other portions of the same, which are not expressly held to be void or unconstitutional, shall continue in full force and effect.
Approved March 20, A. D. 1919.