Blanco v. Kent General Hospital

• Decision Date: 11 April 1963
• Citation: Blanco v. Kent General Hospital, 190 A.2d 277, 56 Del. 97 (Del. Super. 1963)
• Parties: , 56 Del. 97 Henry Paul BLANCO, Appellant, Claimant Below, v. KENT GENERAL HOSPITAL, Appellee, Employer Below.
• Court: Delaware Superior Court

Page 277

190 A.2d 277

6 Storey 97, 56 Del. 97

Henry Paul BLANCO, Appellant, Claimant Below, v.KENT GENERAL HOSPITAL, Appellee, Employer Below.

Superior Court of Delaware, New Castle County.

April 11, 1963.

Frank J. Gentile, Jr., Wilmington, for appellant.

Flanzer & Isaacs, Wilmington, for appellee.

LYNCH, Judge.

This is an appeal from an award made by the Industrial Accident Board.Appellant Blanco, the appellant here, was the claimant¹ below and Kent General Hospital ², the appellee here was the employer below.

The appeal is from a nunc pro tunc award and order of the Board made on January 25, 1961, terminating Appellant's compensation as of August 24, 1957; in short, a retroactive award.

Blanco worked as a male nurse in various hospitals from 1945 until the time of his accident on November 21, 1956 on premises of the Employer.He never lost time from work in this period and he never had occasion to consult a doctor except for 'colds and stuff like that'.Claimant comes from Tampa, Florida, where his family lives.He had been working for Employer over three years at the time of the injury and was making $200.00 per month plus one meal per day.

On November 21, 1956, he was working in the emergency room.While at work Claimant grabbed the side of a stretcher to prevent a patient from falling therefrom and in doing so he felt a severe pain in the lower part of his back.It developed he had sustained a ruptured disc.He was hospitalized for a period of four to five weeks in a Wilmington Hospital, during which period a spinal fusion and laminectomy was performed on Claimant by Dr. Theodore Strange, an orthopedic surgeon.After his release from the hospital Claimant continued to see Dr. Strange once a week for some time.

On December 11, 1956, a written compensation agreement was entered into by Claimant and Employer through Employer's compensation carrier, calling for payment of compensation in the amount of $33.15 per week, beginning December 2, 1956, ³ and continuing 'until terminated in accordance with the provisions of the Workmen's Compensation Law of the State of Delaware'.This agreement was approved by the Board on December 27, 1956.

Claimant returned to work at his Employer's premises on January 28, 1957, but he was unable to do his regular job and so he was put to work in the office doing odd jobs.He had to be shown his office duties.He testified he had had a 10th grade education and that he had had no education for office work.After a while he was assigned to his regular job in the emergency room, but since this job required lifting and bending over he says he just couldn't do it because of the pain in his spine and legs, and hence he quit his work on July 5, 1957.

Compensation payments had been discontinued when Blanco returned to work--this without agreement or order of the Board--but payments were resumed when he left his work on July 5, 1957, and they continued until August 23, 1957, on which date the Employer unilaterally discontinued them, without obtaining an agreement with Claimant or an order from the Industrial Accident Board.Claimant has received no compensation since that time.

On January 27, 1960, the Employer petitioned the Board to review the original compensation agreement, contending that Claimant's disability had terminated on August 23, 1957.A hearing on Employer's petition was held on December 16, 1960.After the hearing, the Board--on January 25, 1961--found as a fact (1) that Claimant sustained 'a personal injury arising out of and in the course of his employment * * *' to-wit: a dislocated disc, caused when he grabbed side of stretcher to prevent patient from falling; (2) an agreement as to compensation was entered into on December 11, 1956, providing for payment of compensation of $33.15 per week and that 'said compensation shall be payable * * * until terminated in accordance with the provisions of the Workmen's Compensation Law'; (3) that compensation was paid 'for temporary total disability from December 2, 1956 through January 27, 1957, and again from July 5, 1957 through August 23, 1957'; (4) that in the period from January 28, 1957 through July 4, 1957Claimant did office work for the Employer 'with no loss of wages' and (5) that competent medical testimony '* * * established that [Claimant] could return to his regular employment as of August 24, 1957'.

The Board ruled as a matter of law that the Employer was 'authorized and directed to terminate compensation payments * * * as of August 23, 1957,--in effect this was a retroactive award ⁴.

An appeal was taken by Claimant.Appellant has briefed and argued two questions:

1.The Board Had No Authority to Make Its Ruling Retroactive.

2.There Is No Evidence to Support A Finding That Claimant's Condition Has Changed.

Appellee has, in its brief, joined in presentation of these two questions and has argued them.Appellant's point 1 will be considered first.

Appellant, in support of this point, cites and relies on the statement appearing in 101 C.J.S.Workmen's Compensation§ 852b, page 199, that

'Generally speaking, an award may not be modified or terminated retroactively. * * *' and the Arizona case cited in the footnote, Hamlin v. Industrial Commission, 77 Ariz. 100, 267 P.2d 736(1954).More is stated on the cited page in the cited volume of Corpus Juris Secundum, viz.:

'* * *. However where statutory authority therefor exists, subject to limitations contained therein, a change may be made retroactive, * * *.'

Appellee, on the other hand, relies on the opinion of the Supreme Court of Errors of Connecticut, in Morisi v. Ansonia Mfg. Co., 108 Conn. 31, 142 A. 393(1928).

Appellant would distinguish this case by citation of this language, appearing in the cited case, 142 A. at page 395.

'Whether or not the facts of a particular case would justify the exercise of the power (to make a retroactive award) must largely rest in the discretion of the commissioner.Orderly procedure and the desirability of definitely settling the rights of the parties would seem to require that, as soon as practicable after an employer or insurer has ascertained that incapacity has ceased, an application should be made for a modification of the award, and, if such an application is delayed, relief should not as a matter of course be granted as of the date of the cessation of the incapacity, but only if, in view of the circumstances of the particular case, equity and justice can best be done in that way.We cannot anticpate what conclusion the commissioner would reach in the case now before us.'(Emphasis supplied)

The Connecticut Court had previously observed in its opinion, 142 A. at page 394, and this must be read in connection with the holding:

'The power of compensation commissioners are wholly the creation of the statute, and our inquiry must be as to the intent of the Legislature in the provisions it has made as to the revision of awards.These are found in section 5355 of the General Statutes, and the particular clause here involved is that one which states that an award or voluntary agreement as to compensation shall be subject to modification upon the request of either party whenever ⁵ it shall appear to the commissioner that the incapacity of the employee has increased, decreased, or ceased. * * *'

The statement is to be found in 100 C.J.S.Workmen's Compensation§ 379b that:

'* * * [c]ompensation boards and commissions are generally considered to be administrative bodies, * * *.Such boards and commissions generally act in an administrative capacity, and constitute a part of the executive branch or department of the state government, * * *.'

At 100 C.J.S.Workmen's Compensation§ 383, page 139 it is stated:

'A workmen's compensation board or commission is a tribunal with special or limited jurisdiction, having such jurisdiction as is conferred on it by constitutional provision or by statute; and its jurisdiction is only such as is conferred on it by express law, or such as may be conferred by necessary implication.'

See alsoVol. 12, Schneider, Workmen's Compensation, Perm.Ed., § 2440;73 C.J.S.Public Administrative Bodies and Procedure§§ 48, 49 and 50 and 42 Am.Jur.Public Administrative Law§§ 25 and 26.

In Diamond State Liquors, Inc. v. Delawere Liquor Commission, this Court recognized and adopted the foregoing principles, as are discussed in the cited treatises, 6 Terry 412, 420, 75 A.2d 248, 253(1950).It was ruled in the cited case on the pages cited:

'In this connection, it must be remembered that the Liquor Commission is an administrative body and has no powers other than those conferred upon it by the statute by which it was created. * * *'(Emphasis supplied)

The Arizona Court had in the Hamlin case, 267 P.2d at page 738, said that an award 'is res judicata and binding on both the Commission and the petitioner[the employee]' and once an award is made, it cannot be changed until 'changed by a different judicial interpretation'.The Arizona Court held that the Industrial Commission's award, being retroactive in operation, was void, and was to be set aside.It is clear that the Arizona Court based its holding on its interpretation of the Arizona law.

In effect then it becomes necessary for this Court to examine and analyze our Workmen's Compensation Statute to determine what express powers were vested by the General Assembly in the Industrial Accident Board and if it can be said that it has any implied powers--to make a retroactive award.

Rights and obligations of employers ⁶ and employees6 with respect to injuries occurring at work and compensation benefits payable as a consequence are wholly covered by statute in this state.Title 19 Del.C. § 2304 binds every employer and employee, adult and minor, to 'the provisions of 'the Act', to pay and accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of * * * negligence and...