Magness Const. Co. v. Waller

• Decision Date: 17 September 1970
• Citation: 269 A.2d 554
• Parties: MAGNESS CONSTRUCTION COMPANY, Appellant, Appellant Below, v. Clifton WALLER, Appellee, Appellee Below. JOHN H. HAMPSHIRE COMPANY, Inc., Appellant, Appellant Below, v. Charles BARKER, Appellee, Appellee Below.
• Court: United States State Supreme Court of Delaware

Page 554

269 A.2d 554

MAGNESS CONSTRUCTION COMPANY, Appellant, Appellant Below, v. Clifton WALLER, Appellee, Appellee Below.

JOHN H. HAMPSHIRE COMPANY, Inc., Appellant, Appellant Below, v. Charles BARKER, Appellee, Appellee Below.

Supreme Court of Delaware.

Sept. 17, 1970.

Upon appeal from the Superior Court. Affirmed

Richard I. G. Jones, of Prickett, Ward, Burt & Sanders, Wilmington, for appellants.

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

Courtney H. Cummings, Jr., of Killoran & Van Brunt, Wilmington, for appellee Charles Barker.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

CAREY, Justice:

These two appeals raise a single problem: Is a claimant who is entitled to compensation for total disability under T. 19 Del.C. § 2324, also entitled to receive compensation for a permanent injury under § 2326 at the same time? This question was answered in the affirmative by the Industrial Accident Board, whose decision was affirmed in Superior Court. 260 A.2d 710. The two employers ask us to reverse that holding.

Both appellees, Clifton Waller and Charles Barker, received back injuries while working for their respective employers, Magness Construction Company and John H. Hampshire Company, Inc. The injuries have resulted in total and permanent disability, according to findings of the Industrial Accident Board. The appellants agree that the appellees are entitled to benefits under § 2324, which reads in part as follows:

' § 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 * * * but the compensation shall not be more than $50 per week nor less than $25 per week * * * Nothing in this section shall require the payment of compensation after disability ceases.'

The appellants also agree that § 2326, which provides benefits for certain permanent injuries, is also applicable to these appellees (see Alloy Surfaces Company v. Cicamore, Del.Supr., 221 A.2d 480 (1966)), but contend that benefits under both sections are not payable at the same time; in other words, that the benefits of § 2326 do not commence until termination of those payable under § 2324.

The benefits under § 2324 are payable so long as the employee remains totally disabled; the section contains no time limit, although payments would, of course, cease upon the death of the employee. The argument advanced by appellants would therefore mean that an employee who is permanently and totally disabled would never himself receive any benefits under § 2326. After his death, those benefits would be payable under § 2332 to the near relatives described in § 2330. Those beneficiaries are the widow or widower, and any children under the age of 18 years; if there is no widow, widower, or children, then to the father and mother, if dependent upon the employee for support; otherwise to the brothers and sisters under 18 years of age, if dependent upon the employee for support. Unless the deceased employee should be survived by relatives coming within these categories, he would lose all benefits under § 2326. We think this result could not have been intended by the lawmaking authorities; the benefits of this Act are intended to benefit the employee primarily. To construe the Act as suggested by the appellants would, in effect, amount to the creation of an exception which the Legislature has not provided, and which, we believe, would have been expressly stated if it had been intended.

Appellants point to parts of § 2326 as indicating a legislative intent that an employee can never receive more than $50 per week, regardless of the nature of his injury, whereas simultaneous payments under the two sections here involved could amount to $100 per week. The first section referred to is a paragraph now found in § 2326(a). That subsection sets forth a schedule of benefits for losses of specific members of the body. We quote a part of it:

'For loss of a hand, 66 2/3 percent of wages during 220 weeks;

'For loss of an arm, 66 2/3 percent of wages during 250 weeks;

'For the loss of a foot, 66 2/3 percent of wages during 160 weeks;

'For the loss of a leg, 66 2/3 percent of wages during 250 weeks;

'For the loss of two or more of such members, not constituting total disability, 66 2/3 percent of wages during the aggregate of the period specified for each.'

Appellants suggest that the words 'not constituting total disability' in the last quoted item refer to subsection (e) of § 2326, which reads as follows:

'(e) Unless the Board otherwise determines from the facts, the loss of both hands, or both arms, or both feet, or both legs, or both eyes, or an injury to the spine resulting in permanent and complete paralysis of both legs, or both arms, or one leg and one arm, or an injury to the skull...