MARY I. BROPHY'S (dependent's) CASE.

COUNIHAN, J. Mary I. Brophy, hereinafter called the employee, sustained injury resulting in a pulmonary condition while in the employ of the Sylvania Electric Products Inc. As a result of a claim for compensation by her, she and the Arrow Mutual Liability Insurance Company, hereinafter called the insurer, on October 17, 1947, entered into a written "Agreement as to Compensation." This agreement was filed with the Industrial Accident Board, hereinafter called the board, and was approved by it on August 16, 1948. It was on a form prescribed by the board. Under this agreement the insurer paid the employee compensation from April 1, 1947, to December 14, 1948. The parties,

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it reads so far as pertinent, "have reached an agreement in regard to compensation for the injury sustained by said employee and submit the following statement of facts relative thereto: Date of Injury: Left Sylvania 8/6/45 Date disability began: 4/1/47 Nature of injury: The parties agree that the employee has been totally incapacitated since April 1, 1947, because of a pulmonary condition, but are unable to agree as to its cause or correct diagnosis. The insurer agrees that the employee is entitled to payments under G. L. c. 152 . . . payments to begin as of April 1, 1947, and to continue."

The employee died on December 11, 1948, and her husband instituted this proceeding to establish a claim for compensation as a dependent. The proceeding was heard by a single member of the board under G. L. (Ter. Ed.) c. 152, Sections 7 and 8. The member awarded compensation and the reviewing board approved and adopted the findings and decision of the single member, which thus became the findings and rulings of the board of review. Upon certification to the Superior Court, the judge decreed that the employee on August 6, 1945, received personal injury which caused her death and awarded compensation to her husband, the claimant, as a dependent, together with costs and counsel fees. The case comes here upon the appeal of the insurer from this decree.

At the hearing before the single member it was agreed that the employee married the claimant on July 1, 1945, and that they lived together after the marriage; that the date of termination of the employment was August 6, 1945; and that there was causal relationship between her death and the condition for which payments were made under the agreement as to compensation.

The single member found as a fact that the claimant "was a dependent as he was living with . . . [the employee] at the time of her injury and death."

At that hearing the insurer contended and offered evidence to prove that the injury sustained by the employee was on a date other than August 6, 1945, and on a date

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prior to her marriage to the claimant. The single member ruled, "I am of the opinion and find that I have no right under the law to change the terms of this agreement in so far as the date of injury is concerned, and I do not find as a fact that there was a mutual mistake when these agreements were entered into." This ruling was based upon G. L. (Ter. Ed.) c. 152, Section 6, as amended by St. 1945, c. 347. [Note p559-1]

The question for us to decide is: Does the recital in the agreement as to compensation, "Date of Injury: Left Sylvania 8/6/45," conclusively establish that day as the time of the injury and thus bar the insurer from proving or attempting to prove that the injury was actually sustained on a day prior to the marriage of the employee?

We are of opinion that "Left Sylvania 8/6/45" following the words "Date of injury" should be construed to mean that August 6, 1945, was the day that the employee suffered injury. Otherwise this phrase has no meaning and serves no purpose. It is fair to assume from other matters in its content that this agreement was prepared and drafted by the insurer, with an honest purpose to give the board all information surrounding the injury.

One of the most vital factors in determining to whom and by whom compensation is to be paid under the statute is the date on which the injury occurs. The date of injury controls the time for filing claims, the amount of compensation to be paid, the coverage of an insurer, Crowley's Case, 287 Mass. 367, 370-371, and more especially, as in this case, dependency, for in order to recover as a presumed dependent a husband must, at the time of the injury as well as at the time of the death of the employee, be married to and living with the employee.

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Beausoleil's Case, 321 Mass. 344, 346-348. G. L. (Ter. Ed.) c. 152, Section 32 (b). [Note p560-1] Undoubtedly the insurer was led to insert August 6, 1945, in the agreement as the date of the injury because of the rule that, where personal injury occurs through the gradual accumulation in the body of harmful foreign matter, the date of termination of employment is accepted as the last day on which such injury could occur, because that is when the accumulative effect of the absorptions renders the employee unable to perform further service. De Filippo's Case, 284 Mass. 531, 534. Crowley's Case, 287 Mass. 367, 371-372. Beausoleil's Case, 321 Mass. 344, 345.

We have assumed in discussing this problem that this proceeding was an adversary one because it involved a hearing before a single member under Sections 7 and 8 of c. 152, a decision of a reviewing board, and certification to the Superior Court under Section 11 of c. 152, as amended. But it might just as well have been taken to the Superior Court under another provision of Section 11 which provides that "Any party in interest" may present to the Superior Court a memorandum of agreement approved by the board and all papers connected therewith and there shall be no appeal to this court "where the decree is based upon . . . a memorandum of agreement." It would seem that the foundation for the proceeding here was the agreement as to compensation. Dempsey's Case, 230 Mass. 583, 586-587. L'Heureux's Case, 307 Mass. 177, 179. The statute appears to us to fix definitely the conclusiveness of the agreement. An excellent discussion of the effect to be given an agreement of this nature is found in Kareske's Case, 250 Mass. 220, where it was said at page 227, "The insurer paid what was agreed; and it ought not now to be able to raise any question it then forbore to litigate."

In West's Case, 313 Mass. 146, at page 153, it was said, "In making and performing the terms of the agreement, the insurer is acting in its own behalf . . . . The responsibility

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for making payments for the ordinary claims for compensation rests upon the insurer, and the acceptance by the employee of payments from the insurer `shall constitute a release to the insured of all claims or demands at law, if any, arising from the injury.' G. L. (Ter. Ed.) c. 152, Section 23." It is unthinkable that if the insurer which provided coverage on August 6, 1945, should later discover that it had no coverage prior to July 1, 1945, the date of the marriage, it could come in and repudiate this agreement after the death of the employee and raise questions of original liability. The purpose of the agreement was to prevent such a situation. Dempsey's Case, 230 Mass. 583, 586-587. DiLeo's Case, 295 Mass. 568, 571.

But the insurer contends in effect that because the claimant seeks to enforce his rights as a dependent he is undertaking a new and separate proceeding from the claim by the employee resulting in the filing of this agreement. There is no merit to this contention. While it is true that the right of a dependent does not arise until after the death of the employee, it is also true that the right of the dependent to payment originates in the injury and particularly depends upon the date of the injury. Injury and the date of it are not only the common basis of recovery but are the only one upon which an award of compensation to dependents may be founded. It is injury and not death for which compensation is awarded. Beausoleil's Case, 321 Mass. 344, 346-347.

There is also no merit in the suggestion of the insurer that there was no evidence to support the single member's finding that the claimant was a dependent. It asserts but does not argue this point in its brief so we need not consider it. Richmond v. Stanzler, ante, 62, 63-64. It would have been futile to have so argued because of the findings of the board of review and G. L. (Ter. Ed.) c. 152, Section 32 (b).

The allowance for costs, attorney's fees, briefs and expenses (G. L. [Ter. Ed.] c. 152, Section 11A, inserted by St. 1945, c. 444, as amended by St. 1949, c. 372) is referred to the single justice.

Decree affirmed.