Wilson v. Bethlehem Steel Co., Inc.
| Decision Date | 14 June 1939 |
| Citation | 40 Del. 157,7 A.2d 906 |
| Court | Delaware Superior Court |
| Parties | FRANK W. WILSON, Claimant Below, Appellant, v. BETHLEHEM STEEL CO., INC., Defendant Below, Respondent |
Superior Court for New Castle County, No. 141, March Term 1939.
Appeal from award of Industrial Accident Board.
On August 10, 1937, the appellant, an employee of the appellee sustained a compensable injury while at work at an electrical reaming machine. The nature of the injury was described as a traumatic amputation of right thumb at proximal one-third of first phalanx. The average weekly wage of the appellant was $ 37.20.
On September 13, 1937, the parties signed a compensation agreement whereby the appellee bound itself to pay to the appellant $ 675.00 at the rate of $ 11.25 per week, the compensation, based upon a 75% loss of usefulness of the right thumb, to be payable from and including August 11 1937, for a period of sixty weeks. This agreement was approved by the Industrial Accident Board.
Thereafter, the appellant filed a petition to vacate the approval of the agreement as one founded on a mistake of law and of fact. It was alleged that the mistake of fact was that the petitioner suffered 100% loss of use of his right thumb, and should have been awarded compensation on that basis, to wit, $ 900.00. That the mistake of law was that the compensation awarded the petitioner on the basis of 75% loss of right thumb was incorrectly calculated; that on the basis of an average weekly wage of $ 37.20, and 75% loss, the petitioner should have been awarded $ 837.00, at the rate of $ 13.95 for 60 weeks; and that consequently, the agreement was not in conformity with the applicable law.
Upon hearing, it was developed that the appellant was a car fitter, and that his employment required him to use small screws and nuts; that upon his recovery in October from his injury, he returned to the same work and at the same wage, and continued in the work until February of the following year when he was laid off for lack of work, and not because of his injury; that he was rehired in April, 1938 at the same work, and remained until August. The medical testimony was that the appellant had lost 75% usefulness of his right thumb. The appellant testified that he had lost 90% usefulness. Apart from the question of fact, the appellant contended that his compensation should have been arrived at as follows: 50% of $ 37.20=$ 18.60; 75% of $ 18.60=$ 13.95 X 60=$ 837.00. The Board was of opinion that the appellant's suggested method of calculation was wrong, and held that the true method under the statute which declares that "this compensation shall not be more than fifteen dollars per week * * *", was, 75% of $ 15.00=$ 11.25 X 60 = $ 675.00.
By Section 6080 (subsection c), Revised Code 1935, compensation for loss of thumb is established at fifty percentum of wages during 60 weeks, and it is further provided:
The case is remanded to the Industrial Accident Board for an award to the claimant.
Cohen and Cohen for appellant.
Caleb S. Layton (of Richards, Layton and Finger) for appellee.
Subsection (c) of Section 6080, Revised Code 1935, provides compensation for all permanent injuries of designated classes, including permanent injuries to fingers and thumb, and it declares that the compensation shall not be more than fifteen dollars per week.
It appears from the opinion of the Industrial Accident Board that in cases where the average weekly wage is over $ 30.00, the sum of $ 15.00 has always been considered by the Board as the base for the calculation of compensation. In the instant case, the injury to the thumb having resulted in a seventy-five percent loss of usefulness of the member, the formula, $ 15.00 X 75% X 60, was applied. The result was a total compensation of $ 675.00.
This was error. The sum of $ 15.00 per week is clearly declared by the statute to be the maximum compensation for the classes of permanent injuries listed in the sub-section. The amount is a maximum and nothing more. It is, in no sense, a base for the calculation of compensation. See Maryland Casualty Co. v. Laughlin, (5 Cir.) 29 F. 2d 343; Maryland Casualty Co. v. Ferguson, (Tex. Civ. App.) 252 S.W. 854. The total compensation should have been determined by the following formula, $ 37.20 X 50% X 75% X 60=$ 837.00.
In Edge Moor Iron Co. v. Sidwell, 3 W. W Harr. (33 Del.) 132, 131 A. 868, the claimant, a carpenter, suffered an injury to his right thumb, as a result of which it became necessary to amputate the entire distal phalange. The wound did not heal, and by a second operation, about one-sixth part of the proximal phalange was removed. An award was made on the basis of loss of the entire thumb. The award was...
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