MARIA N. FERREIRA, administratrix, vs. ARROW MUTUAL LIABILITY INSURANCE COMPANY.

DREBEN, J. The issue before us is whether the Division of Industrial Accidents (Division) acted within its authority in approving after an employee's death a settlement under

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G. L. c. 152, Section 48, which had been executed and presented to the Division and recommended by a single member when the employee was still alive. We affirm the judgment enforcing the approved settlement.

In September, 1980, the employee and the insurer filed with the Division an agreement for redeeming the insurer's liability for weekly compensation by a payment of $7,500. Such an agreement may be initiated by the parties, Gannon v. Contributory Retirement Appeal Bd., 338 Mass. 628, 634 (1959), but requires approval by the Division. See G. L. c. 152, Section 6. Hansen's Case, 350 Mass. 178, 180 (1966). Section 48 of c. 152 sets forth the criteria for such approval (or initial determination by the Division) and, as amended by St. 1953, c. 314, Section 6, provides in relevant part: "Whenever the division deems it to be for the best interests of the employee or his dependents, and the parties agree, the liability for compensation may be redeemed by the payment in whole or in part by the insurer of a lump sum of an amount to be fixed by the division, not exceeding the amount provided by this chapter." The printed form, supplied by the Division for such agreements, requires a statement of the "reasons [the] settlement is in the employee's best interest." In the space provided, the parties explained that in the course of treatment of the employee's workrelated back injury it was discovered that he was suffering from serious diseases, including lung cancer and tuberculosis, which were not work related. His condition was deemed inoperable, and "[i]n the opinion of the treating physician the employee does not have long to live."

Thus, as the judge stated in his memorandum, at the time of execution of the written agreement, "[b]oth the employee and the insurer were fully aware that the employee was terminally ill." Similarly, at a conference hearing before a single member [Note 1] on October 23, 1980, the employee's condition

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was discussed, and counsel for the insurer joined counsel for the employee in urging approval of the lump sum settlement. The single member, after receiving confirmation that the employee, who was hospitalized at the time of the conference, approved the settlement, recommended that the full board (see G. L. c. 23, Sections 14 & 15) approve the agreement.

On November 3, 1980, seven weeks after executing the agreement, the employee died. The next day, the insurer wrote to the Division requesting that the agreement not be approved. The board, with three dissents, approved the agreement on January 5, 1981.

In its appeal, the insurer challenges the validity of the board's approval of the lump sum agreement on two grounds. First, it argues that since the agreement was not binding prior to Division approval, Conlon v. Lawrence, 299 Mass. 528, 532 (1938), it was free to withdraw prior to such approval. It also argues that the board lacked jurisdiction at the time of approval since the employee's right to weekly payments had then ceased by reason of his death.

1. The November 4, 1980, letter does not contain a clear withdrawal from the agreement by the insurer. Assuming, however, that it was intended as such, the withdrawal came too late. Barring mutual mistake, fraud or other principles of equity, we believe that when an instrument with the finality of an agreement for redeeming liability has been executed and filed with the Division, presented to the single member for approval at a hearing conference, and recommended for approval by that member, the insurer may no longer unilaterally rescind the agreement. Cf. O'Reilly's Case, 258 Mass. 205, 208-209 (1927); Perkins's Case, 278 Mass. 294, 299-301 (1932); Taylor v. Hartford Fire Ins. Co., 22 Ill. App. 3d 164, 166-167 (1974). This is particularly true where, as here, the very basis of the agreement was the employee's terminal illness. The board could well determine that to allow rescission by the insurer at this stage of the proceedings simply because the agreement had not been approved before the death of the employee would,

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even apart from equitable considerations, be disruptive of the time and energy of the Division and hence contrary to the principles of sound administrative procedure. [Note 2]

2. The second ground for reversal urged by the insurer is that, since the employee's right to weekly compensation benefits terminated at his death, the board was without jurisdiction to approve an agreement redeeming the insurer's liability for such benefits after his death.

A different but somewhat analogous issue was before the court in Henderson's Case, 333 Mass. 491, 494 (1956). There, an employee died, and the question was whether his dependents were entitled to payments for specific injuries under G. L. c. 152, Section 36, in addition to death benefits under Section 31. His widow claimed she was entitled to the Section 36 benefits by reason of Section 36A, as appearing in St. 1951, c. 494, which allows dependents to collect the Section 36 amounts "[i]n the event that an injured employee who has become entitled to compensation under section thirty-six dies before fully collecting the said compensation" (emphasis supplied). Prior to the enactment of Section 36A, cases cited in Henderson had held that no award could be made under Section 36 for specific injuries when the claim was made for the first time after the employee's death. The insurer in Henderson argued that the employee had not "become entitled" to the Section 36 benefits because such entitlement could only be established under the statutory scheme by a voluntary agreement approved by the board or by a decision of the board after adversary hearings. In rejecting the insurer's

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contentions, the Henderson court held that the word "entitle" refers to the "time of the happening of the event upon which the employee bases his claim. Otherwise, the success or failure of those for whose benefit Section 36A was enacted might depend upon the duration of negotiations or of the litigation and perhaps upon the interval between the date of injury and the date of death." Id. at 495.

In Bagge's Case, 369 Mass. 129 (1975), the court followed Henderson and upheld benefits under Sections 36 and 36A based on findings that the employee who was fatally injured and died shortly after the accident would have experienced losses of function had he lived, for which he would have been entitled to compensation.

Although here we are dealing with different provisions of the compensation law, namely Sections 6 and 48, we think Henderson's Case and Bagge's Case suggest that, language permitting, the act should be construed in a manner which does not make the arbitrary date of approval by the Division determinative of the rights of an employee who has died. "Otherwise, the success or failure of those for whose benefit . . . [Section 48] was enacted might depend upon . . . the interval between the date" of filing of the agreement and the date of its approval by the Division. Henderson's Case, 333 Mass. at 495. To allow the outcome to depend on "such arbitrary matters" as the "time lapse" between filing and approval is neither consonant with judicial authority, see Bagge's Case, 369 Mass. at 132 n.5, nor with the settled rule that the statute is "to be construed liberally for the protection of the injured employee." Meley's Case, 219 Mass. 136, 139 (1914).

We see no language in Section 48 which precludes the Division from making findings subsequent to the death of the employee that the agreement when made (or at the time of conference or even at the date of approval) is in the "best interests of the employee or his dependents." Cf. Jenkins v. Workers' Compensation Appeals Bd., 48 Cal. App. 3d 570, 573-574 (1975), for a consideration of the factors which may make a lump sum payment in the best interests of an employee

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or his dependents where life expectancy is short. Indeed, we note that G. L. c. 152, Section 1(4), as appearing in St. 1945, c. 369, provides that "any reference to an employee who has been injured shall, when the employee is dead, also include his legal representatives, dependents and other persons to whom compensation may be payable."

We also note that rule IX(1) of the Division, see note 1, supra, establishes that the date of execution of the agreement, and not the date of approval by the board, is the time which normally fixes the amount of the insurer's liability. The rule provides that the insurer, after approval, is "entitled to deduct from the lump sum the amount of weekly payments made subsequent to the date of such agreement unless otherwise ordered."

In these circumstances and where Section 48 states only the broad legislative policy of considering the "best interests of the employee or his dependents," we see no obstacle in deferring to the Division interpretation which permits approval subsequent to an employee's death of a settlement executed and presented to the Division prior to his death. Rock v. Massachusetts Commn. Against Discrimination, 384 Mass. 198, 204 (1981) (administrative interpretation accorded deference where agency must interpret a legislative policy which is only "`broadly set out in the governing statute'"). [Note 3]

Judgment affirmed.