Ernest DiSabatino & Sons, Inc. v. Apostolico

• Decision Date: 09 December 1969
• Citation: 260 A.2d 710
• Court: Delaware Superior Court
• Parties: ERNEST DISABATINO & SONS, INC. v. Thomas APOSTOLICO, Jr. MAGNESS CONSTRUCTION COMPANY v. Clifton WALLER.

Page 710

260 A.2d 710

ERNEST DISABATINO & SONS, INC. v. Thomas APOSTOLICO, Jr.

MAGNESS CONSTRUCTION COMPANY v. Clifton WALLER.

Superior Court of Delaware, New Castle County.

Dec. 9, 1969.

B. Wilson Redfearn, of Tybout & Redfearn, Wilmington, for Ernest DiSabatino & Sons, Inc.

Oliver V. Suddard, Wilmington, for Thomas Apostolico, Jr.

Richard I. G. Jones, of Prickett, Ward, Burt & Sanders, Wilmington, for Magness Construction Co.

John Biggs, III, of Biggs & Battaglia, Wilmington, for Clifton Waller.

OPINION

CHRISTIE, Judge.

The captioned cases have been consolidated for the purposes of this opinion because the cases raise related issues of law. Both are workmen's compensation cases and both are appeals from an order of the Industrial Accident Board.

In October, 1966, Thomas Apostolico, Jr., an employee of Ernest DiSabatino & Sons, Inc., in the course of his employment as a bricklayer, sustained serious injuries as a result of a fall from a scaffold. After a period of total disability, Apostolico returned to work on April 22, 1968, as an inspector in Newark, Delaware, a much lighter job, with a loss in wages of more than $75.00 per week. Under an agreement filed with the Industrial Accident Board, Apostolico was compensated at the rate of $50.00 per week from April 22, 1968, in accordance with the provisions of 19 Del.C. § 2325. On October 17, 1968, the employer filed a petition to terminate the claimant's compensation under § 2325 upon the ground that Apostolico had reached maximum healing and should thereafter be compensated under 19 Del.C. § 2326 for his remaining permanent injuries which should be regarded as a scheduled loss to the body as a whole rather than for a loss of earnings as a result of the partial disability under the provisions of § 2325.

It is undisputed that Apostolico has suffered a scheduled loss and continues to suffer a reduction in wages. If the decision of the Board is affirmed the employee will be eligible to receive additional benefits under § 2326.

Ernest DiSabatino & Sons, Inc., employer, has appealed to this Court from the decision of the Industrial Accident Board dated February 26, 1969, which denied the employer's petition to end compensation payable to Thomas Apostolico, Jr., employee, for loss of earnings under the provisions of 19 Del.C. § 2325.

The claimant, Clifton Waller, was injured on November 16, 1963, while attempting to lift a pipe in the course of his employment with the Magness Construction Company. After an appeal to the Superior Court, which held that Waller was totally disabled as defined in 19 Del.C. § 2324, upon remand to the Industrial Accident Board, Waller contended, and the Board agreed, that he is entitled to a scheduled award for permanent partial disability pursuant to 19 Del.C. § 2326(g) at the same time that he is receiving benefits under § 2324. The carrier has appealed from the order dated February 26, 1969, awarding compensation to Waller under both § 2324 and § 2326, payment to be made simultaneously.

These cases both involve a determination of whether or not a claimant who is partially disabled under 19 Del.C. § 2325 as in DiSabatino or totally disabled under 19 Del.C. § 2324 as in Magness and is receiving compensation under the appropriate statutory provisions, and who has also suffered a scheduled loss for which specific compensation is provided under 19 Del.C. § 2326, may recover benefits under both sections of the statute and receive the payments provided therein simultaneously.

The statutory provisions under which the issues arise are as follows:

S 2324. Compensation for total disability

For injuries resulting in total disability, the compensation to be paid during the continuance of total disability shall be 66 2/3 percent of the wages of the injured employee, as defined by this chapter, but the compensation shall not be more than $50 per week nor less than $25 per week. If at the time of injury the employee receives wages of less than $25 per week, then he shall receive the full amount of such wages per week as compensation. Nothing in this section shall require the payment of compensation after disability ceases. (19 Del.C. § 2324)

S 2325. Compensation during partial disability

For injuries resulting in partial disability for work, except the particular cases mentioned in subsections (a)--(g) of section 2326 of this title, the compensation to be paid shall be 66 2/3 percent 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 $50 per week. This compensation shall be paid during the period of such partial disability for work, not, however, beyond 300 weeks. In construing the words 'earning power of the employee thereafter' as those words appear in this section, the Board shall take into consideration the value of gratuities, board, lodging and similar advantages received by the employee in a subsequent employment. (19 Del.C. § 2325)

§ 2326. Compensation for certain permanent injuries

(a) For all permanent injuries of the following classes, the compensation to be paid regardless of the earning power of the injured employee after the injury, shall be as follows: (Paragraphs a through g covering specific scheduled losses omitted)

(h) The compensation provided for in subsections (a)--(g) of this section shall not be more than $50 per week, nor less than $25 per week. If at the time of injury the employee receives wages of less than $25 per week, then he shall receive the full amount of such wages per week as compensation.

(i) Subject to subsection (e) of this section, the compensation provided for in subsections (a)--(h) of this section shall be paid in addition to the compensation provided for in sections 2324 and 2325 of this title. (19 Del.C. § 2326)

Although the language of the statute presents difficulties, the Supreme Court has ruled that it was the intent of the General Assembly that a claimant suffering from a loss covered in one of the schedules of 19 Del.C. § 2326 may also be awarded compensation under § 2324 or § 2325. In order to recover under § 2324 or § 2325, the claimant must prove an actual reduction in earnings. His wages following the injury must, in fact, be less than they were preceding the injury and he is entitled to continued compensation under these sections only so long as his actual earnings remain reduced.

Under § 2326 an award may be made for a scheduled loss 'regardless of the earning power of the injured employee after the injury', and 'in addition to the compensation provided for in § 2324 and § 2325'. In Alloy Surfaces Co. v. Cicamore, Del., 221 A.2d 480 (1966) the Supreme Court of Delaware interpreted these three sections of the workmen's compensation statute and found them to be without ambiguity and consistent with one another as follows:

'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.'

' § 2325 defines the compensation payable for partial disability based upon the difference in actual wages before the injury and the earning capacity thereafter. As we understand the exception therein, it means that compensation is not to be determined by § 2325 but by § 2326 if the injury is one of those described in § 2326. ¹ For instance, to ascertain the benefits payable to a man who loses an arm, we look primarily to § 2326 rather than § 2325; we see that under § 2326(a) he gets two-thirds of his wages for 250 weeks; moreover, we see that under § 2326(i) he also gets any benefits allowed him by § 2324 for total disability or § 2325 for partial disability. Of course, if he is able to return to work without loss of earning capacity, any benefits under the total or partial disability sections would thereupon cease.'

By judicial construction of the statutes, an award based upon § 2326 is not an exclusive remedy and in lieu of an award under the other sections. In a proper case, a claimant may recover for actual wage loss so long as the loss continues, but not to exceed 300 weeks in the case of a partial disability, and in addition thereto may also recover for certain specific physical injuries. The additional recovery allowed for scheduled losses to the body has been said to be based upon a presumption that the...