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Cox v. McCormick Transp. Co.

Superior Court of Delaware, New Castle County

August 6, 1952

COX
v.
McCORMICK TRANSP. CO.

[47 Del. 328] An appeal from a decision of the Industrial Accident Board involving the amount of compensation to be awarded an injured employee under the provisions of Subsection (g) of Section 10 of the Workmen's Compensation Act (Chapter 175, as amended, of the Revised Code of 1935).

On the 3rd day of March, 1950, Levi W. Cox, employee-appellant, sustained an injury consisting of a fractured bone in his upper left cheek which injury arose out of and in the regular course of his employment with McCormick Transportation Company, a Delaware corporation, employer-appellee.

An agreement for compensation was entered into on March 14, 1950, whereunder Cox was to be paid compensation beginning March 6, 1950, at the rate of $25 per week. On March 13, 1950, Cox resumed his employment with McCormick, thus terminating the payments of future compensation under the agreement of March 14, 1950.

On January 25, 1951, Cox filed a petition with the Industrial Accident Board under which he alleged that he had sustained a permanent facial disfigurement as a result of his injury as of the 3rd day of March, 1950, and was, therefore, entitled to additional compensation as indicated under the provisions of Section [47 Del. 329] 10, Subsection (g), of the Compensation Act--more particularly identified as Paragraph 6080, Section 10, Subsection (g), of Chapter 175 of the Revised Code of Delaware (1935) as added by 45 Del.Laws, c. 298.

Sec. 10(g): 'The Board shall award proper and equitable compensation for serious and permanent facial or head disfigurement; such compensation shall be paid to the employee at the rate of Sixty percentum (60%) of his weekly wages for a period not to exceed one hundred fifty (150) weeks.'

The Industrial Accident Board set the petition down for a hearing. Upon the conclusion of all the testimony and evidence presented by Cox in support of his petition the Board reached the following conclusions of fact:

(1) In accordance with the provisions of Delaware's Workmen's Compensation

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Law, as amended, Levi W. Cox and the McCormick Transportation Company were respectively bound to pay and receive compensation.

(2) That the salary of Levi W. Cox at the time of his accident of March 3, 1950, while in the employ of the McCormick Transportation Company was fifty-five dollars per week.

(3) That Levi W. Cox has, as a result of his accident on March 3, 1950, sustained permanent facial disfigurement with a nerve involved.

The Board (under the heading 'Ruling of Law') then found that in accordance with the provisions of the Compensation Act that compensation should be paid to Cox for a period of 10 weeks at the rate of $25 per week, and entered an order awarding to Cox compensation in accordance with said finding.

It nowhere appears in the Board's opinion upon what authority they based their conclusion that Cox was only entitled to $25 per week instead of 60% of his wage at the time of injury, except in a blanket statement that their finding in this respect [47 Del. 330] was in accordance with the provisions of the Compensation Act, Chapter 175, as amended, of the Code of 1935. Predicated upon the argument of counsel on appeal it appears, however, that the Board below concluded that the Legislature in enacting Subsection (g) intended that the provisions thereof should be considered in conjunction with Subsection (c) of Section 10 (which includes permanent injuries of certain classes) in arriving at the amount of compensation to be paid; that is, that the provisions of Subsection (g) should be considered as merely an additional injury to those injuries indicated under Subsection (c), and that the limitation relating to the amount of compensation to be paid under Subsection (c) should likewise govern the extent of compensation for an injury sustained under Subsection (g).

From the Board's award Cox filed this appeal. Prior to stating the contentions of the respective parties, I think it would be helpful if Section 10, including Subsections (a), (b), (c), (d), (e), (f), and (g), was stated.

Section 10 of the Workmen's Compensation Act, being Paragraph 6080 of Chapter 175 of the Code of 1935, was amended in 1941 by the enactment of Chapter 269, Volume 41, Laws of Delaware. The amendment consisted of striking Section 10 in its entirety, as it theretofore appeared, and substituting in lieu thereof a new Section 10, including Subsections (a), (b), (c), (d), (e), and (f).

Space will not be consumed in setting forth in detail the language employed under Section 10, together with Subsections (a), (b), (c), (d), (e), and (f), as amended, aforesaid. But it should suffice to say that Subsections (a) and (b) deal with total disabilities and partial disabilities, and that Subsection (c) deals with permanent injuries of certain classes, to-wit: loss of arm, loss of leg, etc., of which serious and permanent facial or head disfigurement is not a part. The compensation for any disability, falling within the provisions of Subsections (a), (b), and (c) of Section 10, is set at 60% of the wage of an injured employee, but such compensation could not exceed in amount the sum of $18 [47 Del. 331] per week for the length of time designated therein. Subsections (d) and (e) are of no particular import insofar as the present question is concerned. Subsection (d) is concerned with the amount of compensation should an employee die as the result of injury, and Subsection (e) has to do with compensation to be paid an employee that suffers more than one or a second permanent injury. Subsection (f) deals with loss of hearing in one or both ears, which injury is not included in the injuries detailed under Subsection (c), and provides compensation in such cases in the amount of 60% of the weekly wage for the periods of 52 and 104 weeks, respectively.

In 1945 Section 10, including Subsections (a), (b), and (c), was further amended by the enactment of Chapter 297, Volume 45, Laws of Delaware. Under this enactment Subsection (a) was amended by increasing the weeks of total disability from 450 to 500 weeks and by increasing the limitation upon the amount of compensation to be paid in any event from $18 per week to $21 per week. Subsection (b) was

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amended by increasing the limitation of compensation payable thereunder from $18 per week to $21 per week, and Subsection (c) was amended by increasing the limitation of compensation payable thereunder from $18 per week to $21 per week.

In 1945 a new Subsection, entitled Subsection (g), supra, was enacted under the provisions of Chapter 298, Volume 45, Laws of Delaware. Under this new Subsection provision was made for compensating employees who had sustained serious and permanent facial and head disfigurement.

In 1947 under the provisions of Chapter 160, Volume 47, Laws of Delaware, Section 10, including Subsections (a), (b), and (c), was further amended by providing in Subsection (a) compensation for the entire period of total disability and by increasing the limit of the amount to be paid thereunder from $21 to $25. Subsection (b) was amended [47 Del. 332] by increasing the limit of the amount of compensation to be paid in cases involving partial disability from $21 to $25, and Subsection (c) was amended by increasing the limit of the amount to be paid for the injuries as set forth thereunder from $21 per week to $25 per week.

While not directly pertinent to the present case, it is still worth noting, for the purpose of bringing Section 10 [including Subsections (a), (b), and (c)] up to date, that the Legislature in 1951 further amended Section 10 by the enactment of Chapter 190, Volume 48, Laws of Delaware. Under this enactment the limitation of the amount of compensation payable under these Subsections was increased from $25 per week to $30 per week.

[47 Del. 328] Andrew D. Christie, Wilmington, for employee-appellant.

John P. Sinclair, of the Firm of Berl, Potter & Anderson, Wilmington, for employer-appellee.

[47 Del. 332] TERRY, Judge.

The question presented is very narrow. It does not concern the period of time for which Cox was awarded compensation (ten weeks), but merely the amount of compensation so awarded (twenty-five dollars per week). Cox contends that the language employed under the provisions of Section 10, Subsection (g), of the act is clear and readily understandable and that, if he is entitled to compensation at all under the provisions thereof, the rate of compensation must be based upon 60% of his weekly wage during the ten week period and not twenty-five dollars ($25.00) per week as indicated by the Board under its award below.

McCormick contends that Subsection (c) deals with permanent injuries of certain designated classes under which payments of compensation are limited in each case to the sum of $25 per week. It further contends that the legislative intention in adding Subsection (f) in 1941, supra, and Subsection (g) in 1945 was merely to add two additional types of permanent injuries to those included within the list of injuries as designated under Subsection (c), and, as such, it was the intention to limit the extent of payments of compensation to cases arising under Subsections (f) and (g) to the maximum amount to be paid as designated under Subsection (c); that is, the sum of twenty-five dollars ($25.00) per week.

McCormick's contention that the provisions of Subsection (g) rightfully belong under the Schedule Loss Section of Subsection[47 Del. 333] (c), along with the designated injuries therein set forth, and, as such, are subject to the limitation of the weekly amount of $25 as set forth under Subsection (c), cannot be sustained.

The language employed in the enactment of Subsection (g) clearly denotes that an injured employee meeting the requirements of the Subsection shall receive 60% of his weekly wage for a period to be determined by the Industrial Accident Board not to exceed 150 weeks.

If the Legislature had intended, as McCormick argues, to include Subsection (g) as merely an added injury under Subsection (c), thereby limiting the recovery of compensation payable to an employee under Subsection (g) of the amount of $25 per week, it could have easily done so either by amending Subsection (c) and including

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It is my opinion that Subsection (g) has no relation to Subsection (c) whatsoever, and that any award made by the Industrial Accident Board for an injury sustained under Subsection (g) must be made at the rate of 60% of the employee's weekly wage for a period not to exceed 150 weeks. [1]

For the reasons stated the Board's award must be reversed with directions to the Board to enter an award of compensation in favor of Cox for the period of 10 weeks at an ...


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