On appeal from the former Supreme Court.
For reversal: Chief Justice Vanderbilt and Justices Case, Oliphant, Burling, and Ackerson. For affirmance: None. The opinion of the court was delivered by Case, J.
The appeal is from a judgment in the former Supreme Court, whose opinion is reported in 137 N.J.L. 376. The question to be determined is whether the petition for compensation under the Workmen's Compensation act was filed within the time prescribed by law.
The accident occurred October 2, 1943. The last medical service was rendered on November 22, 1943. The physician's bill was paid by the employer on March 7, 1944. The petition was filed March 1, 1946. Appellant argues that the two year period for filing petition began to run on November 22, 1943, the date of the last medical attendance and that, therefore, the petition was filed out of time. Respondent, on the contrary, contends for the view, held by the court below, that the filing
was in time because it was within two years of the date when the employer paid the doctor.
The petition alleged, on the oath of the claimant, that no compensation had been paid, that medical services were necessary, and that such services were requested of and were furnished by the employer.
R.S. 34:15-41 provides that claims for compensation shall be barred unless a petition is filed as prescribed by R.S. 34:15-51. The latter section provides that
"Every claimant for compensation under article 2 of this chapter (§ 34:15-7 et seq.) shall, unless a settlement is effected or a petition filed under the provisions of section 34:15-50 of this title, file a petition in duplicate with the secretary of the bureau in his office, at the state house, in Trenton, within two years after the date on which the accident occurred, or in case an agreement for compensation has been made between the employer and the claimant, then within two years after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the compensation has been paid by the employer, then within two years after the last payment of compensation. Any payment made in accordance with the provisions of article 2 of this chapter (§ 34:15-7 et seq.) shall constitute an agreement for compensation."
There was no agreement for compensation, no failure to make payment, and no payment of a part of the compensation unless the furnishing of the medical services or the payment for the same be considered such.
The reasoning of the respondent is that inasmuch as the payment of the doctor's bill was in discharge of the employer's statutory duty under R.S. 34:15-15 to "furnish to the injured workman such medical, surgical and other treatment * * * as shall be necessary * * *", therefore the payment of the doctor's bill was a payment of a part of the compensation. That conclusion is a non sequitur. The obligation of the statute is that the employer shall furnish the workman with medical treatment. When the employer has furnished the medical service, he has performed his statutory duty in that respect. How or when he shall pay for the same is of no concern to the workman. It may be that a physician is under continuing retainer by the employer and is paid at regularly recurring periods with no specific relation to the services performed and independently
of whether or not during a given period any service is performed. If, as perhaps usually happens, the service is one for which the employer is obligated to make specific payment to the physician, there are many reasons, wholly unrelated to the workman or his claim, why such a payment may be delayed. Through oversight or careless business methods a physician may fail for a considerable period to send his bill to the employer, or, sending a bill, may inadvertently omit some item of service or expense and later bill the employer for the sum so omitted, or the death of the physician may intervene. The employer is liable to suit by the physician for a period of six years from the date of the service or disbursement; and even beyond the time when the physician can prosecute his claim by suit, the employer may, if he will, liquidate the same. Payment under such, or any, circumstances will, if the respondent's contention is valid, start a two year period for the filing of a petition even though otherwise the right to file be long since expired. We think that the argument is not sound. The events or omissions which are to start the period of limitation running should, in reason, be within the workman's knowledge so that he may have notice of the same -- such as the happening of the accident, a failure by the employer to make payment to the workman, or some default in the employer's obligation under the statute to the workman of which the latter will ordinarily have knowledge. It is not reasonable to suppose that the fact of payment by the employer to the doctor ...