Courtney H. Cummings, Jr., of Killoran & Van Brunt, Wilmington, for plaintiff below, appellant.
Robert B. Walls, Jr., Wilmington, for defendants below, appellees.
WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.
This is an appeal from the affirmance by the Superior Court of an order of the Industrial Accident Board dismissing a petition for workmen's compensation benefits.
George V. McHone was a laborer employed by the appellee James E. Strates Shows, Inc., which operated a traveling carnival. The accident happened on May 15, 1961  in a freight yard at which the show train had been stopped. McHone was struck by a switch engine and, as a result, his arm was amputated.
On September 22, 1961, McHone filed a petition for compensation, including temporary disability and the scheduled loss, and for medical and hospital expenses. Hearing thereon was held on September 19, 1962, at the conclusion of which the employer was granted leave to introduce additional evidence at a later date. On October 8, 1962, McHone died of a cause unrelated to the injury. After permitting the substitution of the appellant as administratrix of McHone's estate, the Board dismissed the petition, without statement of the legal or factual basis therefor. Upon appeal therefrom, the Superior Court remanded with instructions to make findings. On August 9, 1967, the Board again dismissed the petition, stating that as of the date of the accident the Delaware Workmen's Compensation Law 'did not provide for survival of a claim when death unrelated to an injury intervened.' Upon a second appeal to the Superior Court, the Board's dismissal of the petition was affirmed. This appeal by the administratrix followed.
The Superior Court based its decision upon Moore v. Chrysler Corporation, Del.,233 A.2d 53 (1967). We there held that 19 Del.C. § 2332,  prior to its 1964 amendment, barred compensation for a scheduled loss upon the petition of the widow of the employee, when his death resulted from a cause unrelated to the injury and when such compensation was not agreed upon or awarded prior to his death.
The Moore case controls this appeal insofar as the claims for compensation are concerned because, her too, death was unrelated to the injury, and there was no agreement or award of compensation prior to death. Accordingly, the Superior Court correctly held that, under the Moore case, the petition was properly dismissed by the Board as to compensation for temporary disability and the scheduled loss. But the Moore case did not determine that § 2332 constituted a bar, under the circumstances of this case, as to claims for medical and hospital expenses arising from the injury. We perceive in § 2332 room for distinction between a claim for compensation, on the one hand, and a claim for medical and hospital expenses, on the other; and we welcome the distinction because of the harsh result the rule of the Moore case would otherwise impel.
In the event of death from a cause other than the injury, § 2332(a) limited liability 'for compensation, expense of last sickness and burial' only. Also, § 2332(b) referred to compensation, only, in providing for the manner of making remittance after death of benefits agreed upon or awarded. In neither § 2332(a) nor § 2332(b) was mention made of hospital and medical expenses arising from the injury itself. We decline to read into § 2332 any greater limitations than are explicitly set forth therein. By virtue of 10 Del.C. § 3707,  the claim for medical and hospital expenses arising from the injury survived the death of the employee,
in the absence of an express restriction in the Statute; and we find no such express restriction in § 2332 or elsewhere in the Law.
We hold therefore that if the injury was a compensable one under the Workmen's Compensation Law, medical-hospital and related expenses incurred in the treatment of the injury must be furnished by the employer under 19 Del.C. § 2322,  notwithstanding the fact that the employee ultimately died from an unrelated cause and that there was no agreement or award of compensation prior to death.
With further reference to the claims for compensation, we have considered the various arguments by which the appellant seeks to distinguish and avoid the effect of the Moore case: that McHone filed a claim ...