321 Mass. 344 | Mass. | 1947
The claimant and the insurer appealed from a decree of the Superior Court awarding the claimant compensation as the dependent of his wife, who quit her employment on January 15, 1943, as the result of a pulmonary condition alleged to have arisen out of and in the course of her employment for which, in accordance with an agreement approved by the Industrial Accident Board, she was paid compensation weekly at the rate of $14.64 from January 1, 1944, to December 9, 1945. She died on
The claimant contends that the decree was wrong because he should have been awarded compensation at the rate and to the extent designated by G. L. (Ter. Ed.) c. 152, § 31, as amended by St. 1945, c. 572, which became effective after the injury but before the death of his wife and not, as the board decided, in accordance with said § 31 as it was at the time of her injury.
A compensable personal injury resulting from the gradual impairment of the body because of the absorption of fumes, gases, dirt or foreign matter is said to occur when the accumulative effect of the absorption renders the employee unable to render service. DeFilippo’s Case, 284 Mass. 531. Crowley’s Case, 287 Mass. 367. The injury here must be regarded as having occurred not later than January 15, 1943, when the employee quit her employment.
The board was right in basing compensation on the statute, G. L. (Ter. Ed.) c. 152, § 31, as it stood at the time of the injury.
Statute 1945, c. 572, amended G. L. (Ter. Ed.) c. 152, § 31, and became effective after the injury but before the death. It greatly increased the death benefits payable to the husband of a deceased employee, not only by increasing the rate of weekly payments but also by increasing the total amount payable. This amendment did not relate to matters that were remedial or procedural. It created new rights in favor of dependents in important respects. A statute of this nature is to be applied prospectively and not retroactively unless the statute itself, by express terms or necessary implication, manifests the legislative intent that it should be applied retroactively. Statutes providing for compensation
This construction of the amending statute, St. 1945, c. 572, is in accord with the rule established in workmen’s compensation cases that the determination of the dependents of an employee is to be made as of the date of the injury and not the date of the death. Bott’s Case, 230 Mass. 152. Cronin’s Case, 234 Mass. 5. Gleason’s Case, 269 Mass. 583. Musgrave’s Case, 281 Mass. 416.
But the claimant contends that St. 1945, c. 572, even if it were not in effect at the time of the injury, is not retroactively applied to a case where the death occurred after this statute became operative because he had no cause of action until the death of the employee. It is true that the right of a dependent to compensation does not arise until the-death of the employee, but it is also true that the right of a dependent to receive compensation originates in the injury because, unless it is shown that death resulted from an injury arising out of and in the course of employment, there can be no award of compensation to dependents. It is urged that the right of dependents to compensation is separate from and independent of any right of the injured employee to compensation, and that an injured employee cannot release his, dependents’ rights, Cripps’s Case, 216 Mass. 586; but that principle is not limited to workmen’s compensation cases, for a right of action for death in this
The contention of the claimant loses sight of the fact that the date of the injury determines not only who are dependents but also the payments to which they will become entitled upon the death of the employee, so that the injury itself is the real basis for the allowance of compensation to them. A statute enacted after the injury cannot be applied to payments to dependents on account of the death of the employee resulting from the injury unless it is retroactively applied. The statute, St. 1945, c. 572, for reasons already stated, does not permit such application. The rights of dependents are to be determined by the statute in effect at the time of injury and not by a subsequent statute which is effective at the time of the death of the employee. Quilty v. Connecticut Co. 96 Conn. 124. Stanswsky v. Industrial Commission, 344 Ill. 436. Collwell v. Bedford Stone & Construction Co. 73 Ind. App. 344. Thomas v. Crummies Creek Coal Co. 297 Ky. 210. Gray v. St. Croix Paper Co. 120 Maine, 81. Virden v. Smith, 46 Nev. 208. Coté v. Bachelder-
The action of the board in basing its decision upon the statute in effect when the injury occurred and not upon the statute in effect at the death may also be supported upon a ground other than the construction of the later statute. It was optional with the employer before the injury to become an insured person under the workmen’s compensation act, and it was likewise optional with the employee to accept the benefits of the act; and where, as here, both have voluntarily elected to come within the provisions of the act, the act must be read into the contract of employment. P. J. Carlin Construction Co. v. Heaney, 299 U. S. 41, 44. Upon the occurrence of an injury to the employee arising out of and in the course of her employment her rights to compensation and the obligation of the insurer to pay compensation were governed and fixed by the act, Ahmed’s Case, 278 Mass. 180, 183, 184, Alecks’s Case, 301 Mass. 403, 406 ;
The insurer is right in its contention that it should be credited with the payments made to the employee in fixing the total amount payable to the claimant. The compensation to be awarded a husband upon the death of his wife, the injured employee, with whom he was living at the time of her death, was governed by the last paragraph of § 31 of G. L. (Ter. Ed.) c. 152, which fixed a maximum weekly payment of $10 for a period of five hundred weeks and a total
The fact that the second paragraph of § 31 expressly provides that the total payments to the widow and children shall not amount to more than $6,400, “including such payments as were made to the injured employee before his death,” and that there is no such express provision requiring a similar deduction in the case of the dependents mentioned in the last paragraph of said section is not controlling. It was held in Sinclair’s Case, 248 Mass. 414, where likewise there was no such express provision (St. 1914, c. 708, § 2), that the maximum of $4,000 payable to the dependents should include payments to the injured employee before his death. For similar decisions under the English act see also Williams v. Vauxhall Colliery Co. Ltd. [1907] 2 K. B. 433; Howell v. Bradford & Co. 104 L. T. (N. S.) 433.
We think that Sinclair’s Case is decisive. The decree of the Superior Court must be modified by striking out the
So ordered.
See now St. 1946, e. 386, § 3, inserting § 2A in G. L. (Ter. Ed.) c. 152, providing that workmen’s compensation statutes dealing with substantive rights are not to be retroactively applied unless otherwise expressly provided.
Statutes somewhat similar to our own have been so construed in other jurisdictions. Atkinson v. Atkinson, 47 Ga. App. 345. Casaday v. State Industrial Accident Commission, 116 Ore. 656. Kuetbach v. Industrial Commission of Wisconsin, 166 Wis. 378. Sarich v. Industrial Commission, 64 Utah, 17.
See now St. 1943, c. 529, effective November 15, 1943, requiring employers to provide compensation for their employees. See also St. 1945, c. 369.
See St. 1943, c. 400, effective after the injury and increasing the maximum weekly payments to S12, and St. 1945, c. 572, which greatly increased the amounts payable to a husband and in the main put mm on the same basis as the widow of an injured employee.