In this appeal from the Superior Court, we address a question of first impression — whether an employer may secure reimbursement from the Worker's Compensation Fund (the "Fund"), established pursuant to 19 Del. C. § 2327, for payments to a previously injured employee who sustains a subsequent injury rendering him a displaced worker. The Superior Court ruled that such benefits were reimbursable. We agree that the statute establishing the "second injury fund," when given a construction consonant with its intended purpose, permits payment to a subsequently injured displaced worker. Accordingly, we affirm.
The present dispute arises from a series of job-related injuries sustained by Lee Wood ("Wood") while in the employ of the appellee, Transport Services, Inc. ("Employer"). Wood was injured in 1973 and again in 1985 but was able, with certain restrictions, to continue working as a truck driver. Wood was involved in a third accident in 1992 which aggravated back and neck injuries sustained in the prior accidents.
Medical evidence presented to the Industrial Accident Board (the "Board") confirmed that Wood, after the third accident, in 1992 was no longer able to work in his normal occupation. Moreover, in view of his age and limited reading and writing ability, Wood was unsuited for any sedentary occupation. He was thus declared to be totally disabled as a displaced worker.
Although the Employer's worker's compensation insurance carrier paid Wood total disability benefits for a time, after it concluded that Wood's condition was attributable to a series of accidents, the Employer filed a petition for reimbursement from the Fund as provided by 19 Del. C. § 2327.
The Fund argues, consistent with the Board's original conclusion, that Section 2327(a) does not authorize reimbursement from the Fund because a displaced worker is not included in the listing of permanent injuries contained in 19 Del. C. § 2326.
In our view, the Superior Court's analysis is correct. As the evolution of the displaced worker doctrine under Delaware law illustrates, the inquiry into whether an injured worker is disabled is not limited to simply determining whether a worker is physically able to work. In Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del.1967), this Court held that in addition to consideration of medical and physical facts, other factors such as "age, education, general background and experience, emotional stability, the nature of the work performable under the physical impairment, and the availability of such work" must be taken into account in evaluating total disability. The fact that displaced worker status, per se, is not listed in Section 2326 is not dispositive of the question of whether total disability exists. As the title to Section 2326 indicates, the section lists compensation for "certain" permanent injuries. As this Court has previously noted, while there is not a specific definition of "total disability" in Section 2326, the General Assembly has vested the Board with "power to determine when there is a total disability" for the purpose of reimbursement under Section 2327. Spence v. University of Delaware, 311 A.2d 867, 869 (Del.1973).
We agree with the appellee that the determination of whether a worker is totally disabled requires a focus on whether the injured worker is employable, not simply whether he is physically precluded from work. This approach is consistent with the acknowledged mandate that the worker's compensation statute, as remedial legislation, be construed to implement its beneficial purpose — full and fair compensation to injured workers. While the reimbursement feature of Section 2327, and the present dispute, directly benefits the Employer and its worker's compensation carrier, a restrictive reading of Section 2327's reimbursement policy could have a deterring effect on the willingness of employers to hire, or rehire, workers who have sustained prior injuries. Encouraging such employment is in the interest of all injured workers seeking to rejoin the labor market and, ultimately, is a societal benefit as well.
We conclude that, upon a proper factual showing of physical and economic factors, benefits paid to a displaced worker are reimbursable under the provisions of 19