Alloy Surfaces Co. v. Cicamore
| Decision Date | 17 June 1966 |
| Citation | 221 A.2d 480 |
| Court | United States State Supreme Court of Delaware |
| Parties | ALLOY SURFACES COMPANY, Employer-Appellee, Cross-Appellant Below, and The Aetna Casualty & Surety Company, Insurer, Cross-Appellant Below, Appellants and Cross-Appellees, v. Paul CICAMORE, Claimant, Appellant Below, Appellee and Cross-Appellant, and American Employers Insurance Co., General Accident Fire & Life Assurance Corp., Lumbermens Mutual Insurance Co., Insurers-Appellees Below, Appellees. |
Max S. Bell, Jr., of Richards, Layton & Finger, Wilmington, for appellants and cross-appellees.
Samuel R. Russell, of Bayard, Brill, Russell & Handelman, Wilmington, for appellee and cross-appellant.
F. Alton Tybout, Wilmington, for American Employers Ins. Co.
William F. Taylor, of Young, Conaway, Stargatt & Taylor, Wilmington, for General Accident Fire & Life Assur. Corp.
Richard I. G. Jones, of Prickett & Prickett, Wilmington, for Lumbermens Mut. Ins. Co.
These are appeals from the Superior Court which remanded a Workmen's Compensation case to the Industrial Accident Board for further proceedings. The questions raised are these: Is an employee who loses all his teeth entitled to the full benefits of T. 19 Del.C. § 2326(g) or only such part thereof as the Board allows? Did the Superior Court properly award a fee to claimant's counsel for services on the appeal? In a case of occupational disease resulting from exposure over a lengthy period, may there be an apportionment of the loss by the Board among several insurers?
The findings of the Industrial Accident Board as modified by the Superior Court show these facts:
Claimant was employed by Alloy Surfaces Co. (Alloy) from some time in 1957 until August 12, 1963. He was hospitalized on August 13, 1963, suffering from painful, swollen gums and abscessed teeth. His condition was diagnosed as gingivitis, stomatitis and dental abscesses due to the long continued introduction of chrome compounds into the oral cavity. The medical experts agreed that his condition developed over a period of months or years, perhaps over the total period of his employment by Alloy. It was necessary to remove all of his teeth then remaining, twenty-two in number. At the time of the Board's hearing on April 29th, 1964, he had not been fitted with new dentures, and was unable to masticate. The Aetna Casualty & Surety Co. (Aetna) was the compensation insurer at the time of his disability and by agreement paid him compensation on the basis of temporary total disability from August 13, 1963 through September 30, 1963. He later applied for additional compensation. The Board concluded that he had suffered a recurrence of his disability on October 1st, 1963, that he had sustained no serious and permanent disfigurement as the result of losing his teeth, and that he had not established a causal relationship between his occupational disease and his subsequent loss of earning capacity. The Board directed Aetna alone to pay further compensation for the period through November 6, 1963; to pay his medical and hospital bills 'including repairing damage to or replacing false dentures'; to pay his medical witness fees, and to pay his reasonable attorney's fee in the amount of thirty percent of the award or $500, whichever is smaller. The Board considered that § 2326(g) of the Workmen's Compensation Act, hereafter quoted, did not apply to this case, and it made no award thereunder.
The claimant appealed to the Superior Court on the ground that the Board had erred in refusing to allow him full compensation of $50 per week for three hundred weeks under § 2326(g). Aetna appealed from a finding of polymer fume fever, a finding that 'as the result of exposure on August 13, 1963, Cicamore lost all his teeth', and the award of an attorney's fee. It also appealed from the Board's refusal to apportion the award.
The Court below held that the Board had erred in making no allowance under § 2326(g), but that claimant was not necessarily entitled to the full amount permitted thereunder. The Court accordingly ordered a remand in order for the Board to hear further evidence and to determine the amount to be awarded under that sub-paragraph. Aetna did not press its objection to the attorney's fee. Without any argument on the point the Court corrected the erroneous findings concerning polymer fume fever and exposure on August 13, 1963. The Court also affirmed the Board's refusal to apportion the total loss among the various insurers.
I (a)
The important question raised by claimant's appeal is whether he is entitled to the maximum amount allowed by § 2326(g) or something less than that maximum. This question is answered, we believe, by the very language of that sub-section itself which reads as follows:
'The Board shall award proper and equitable compensation for the loss of any member or part of the body or loss of use of any member or part of the body up to 300 weeks which shall be paid at the rate of 66 2/3 per centum of his weekly wages, but no compensation shall be awarded when such loss was caused by the loss of or the loss of use of a member of the body for which compensation payments are already provided by the terms of this section.'
Sub-section (h) limits the amount due to $50 per week and sub-section (i) provides that the award shall be in addition to the other compensation under § 2324 and § 2325 of the Act.
It is evident from the words of the statute that the amount to be awarded is discretionary with the Board. It does not say that a claimant shall receive 300 weeks of compensation for the loss of a part of the body; it says he shall receive 'proper and equitable compensation' therefor up to three hundred weeks. The rate is to be 66 2/3 percent of the weekly wages, for that clause is in mandatory terms; the Board's discretion lies in determining what number of weeks is proper and equitable.
Various preceding sub-divisions of § 2326 contain a lengthy schedule of specific fixed benefits for the loss of certain body members which are non-discretionary, except in a few instances such as partial loss of vision, when the Board must determine the extent of the loss and award the proper fractional part of a total loss. Sub-section (g) was obviously inserted to make provision for losses of body parts which could not well be included within the specific schedule. As to these unspecified losses, the Board must determine what is equitable.
Even if the language of the subsection be considered ambiguous, our view of the legislative intent is supported by a comparison of the benefits which a contrary view would require under sub-section (g) as against many of the specific benefits for other losses in other parts of § 2326. For example, it is hard to believe that the Legislature intended to make an automatic award of 300 weeks for loss of all teeth, even though largely corrected by false dentures, as against 175 weeks for complete loss of hearing or 250 weeks for loss of an arm or leg, for example. It is far more reasonable to believe that any award under (g) is intended to bear some proper relationship to the specific awards provided in other parts of the section. We doubt that the Louisiana case of Fruge v. Hub City Iron Works, La.App., 131 So.2d 593, and Macaluso v. Schill-Wolfson, Inc., La.App., 56 So.2d 429, are in conflict with the foregoing view because of differences in the language of the statutes; if there be a conflict, however, we decline to follow the Louisiana rule.
In urging his contention that he is entitled to the maximum amount under (g), the claimant argues that the Board may not consider the extent to which false dentures have reduced his inability to masticate. In support of this proposition, he cites Alessandro Petrillo Co. v. Marioni, 3 W.W.Harr. 99, 131 A. 164, wherein the Superior Court held that a partial loss of vision in one eye required compensation for the percentage of the loss even though the use of glasses would reduce the percentage considerably. We do not consider that decision controlling in this case because it was predicated upon the mandatory language for scheduled losses in what is now sub-paragraph (a) of § 2326, in contrast to the discretionary language of (g).
We are satisfied that the Board committed an error of law in finding that (g) has no application to this case. Claimant is entitled to an allowance thereunder, the amount to be resolved by the Board. Presumably because of his theory that the amount was automatically the maximum, claimant presented little evidence upon which the Board could base a discretionary judgment. No prognosis was given, for instance. Whether additional evidence was in fact available at that time we do not know. Aetna contends that it was not, and argues that the Board was right in allowing nothing for this part of the claim because of the lack of sufficient evidence. It suggests that the appropriate action of the Court is to affirm the Board, and to leave claimant free to seek a review under § 2347 of the Act, a method which Aetna contends is the only way by which the Board can receive evidence of what has transpired since the original hearing. This procedural question seems unimportant at the present time; if conditions have changed since the prior hearing, any technical procedural difficulty can be avoided by the filing of a petition under § 2347 which can be heard at the same time as the evidence upon the remand.
Aetna raises a problem concerning the factors which may be considered by the Board in reaching a determination of an amount which is proper and equitable. In particular, it suggests that loss of earning power is one factor which must be taken into account. The claimant contends that it is not. Perhaps this question is raised here prematurely; it seems desirable, however, that we consider it in order that the Board may have the benefit of our views, especially since...
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