323 Mass. 454 | Mass. | 1948
These are appeals from two decrees entered by the Superior Court in a workmen’s compensation case. The employee suffered personal injury arising out of and in the course of his employment from exposure to the fumes of silicon tetrachloride while working as an electrician at a plant of Sylvania Electric Products, Inc., in Salem; The single member found that the exposure to the fumes occurred in the latter part of 1943 and the early part of 1944; and that such exposure caused or aggravated a condition of bronchitis or emphysema as a result of which the employee was disabled for work on January 4, 1946. These findings were supported by the evidence.
On July 22, 1947, after a claim for review by both employee and insurer, the reviewing board affirmed and adopted the findings of the single member and ordered compensation to be paid at the rate of $22 a week “as provided in § 34 as amended by c. 717 of the Acts of 1945.” On July 24, 1947, the Industrial Accident Board received a letter from the attorney for the employee which represented that the employee had four dependents and that under G. L. (Ter. Ed.) c. 152, § 34, as amended by c. 717 of the acts of 1945, the employee was entitled to $32 per week instead of $22. It also requested that under § 9A reasonable fees be awarded to the physicians appearing for the employee. The letter concluded: “If the board sees fit to make these corrections . . . there would, of course, be no need for appeal by the employee.” Thereafter the reviewing board recalled and cancelled its decision “for the purpose of making correction and amplification thereof.” On July 31, 1947, the reviewing board filed its corrected and amplified decision in which it awarded compensation to the employee at the rate of $20 from January 4, 1946, in accordance with the statute as it
On January 7, 1948, after ruling that the payment of dependency compensation on account of the death of the employee was separate from the payment of incapacity compensation, the board reaffirmed its former findings of fact and rulings as to the rate of compensation and ordered such compensation to.be awarded only to the date of the
The contention of the administratrix and widow as dependent that the rate of compensation as a matter of law is governed by St. 1945, c. 717, cannot be supported. An injury may be found to have been sustained at a time before incapacity to work resulted. Anderson’s Case, 288 Mass. 96, 99, 100. Gustafson’s Case, 303 Mass. 397. The rate of compensation is determined by the statute in force at the time of injury. Crowley’s Case, 287 Mass. 367. As above stated the injury was sustained at the time of the exposure to the fumes in the latter part of 1943 and the early part of 1944. The statute of 1945, c. 717, was approved on July 25, 1945, and became effective three months thereafter. It is to be applied prospectively and not retroactively. See G. L. (Ter. Ed.) c. 152, § 2A, inserted by St. 1946, c. 386, § 3; Beausoleil’s Case, 321 Mass. 344.
The administratrix and widow as dependent further contends that the reviewing board had no power to recall its initial decision of July 22 and that such decision remained the law of the case. This question need not be decided, because if there were any error in the recall by the reviewing board of its initial decision of July 22, which we do not intimate, it was cured by the subsequent decision of January 7, 1948, rendered after the case had been recommitted by the Superior Court.
. Decrees affirmed.
