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Donoher v. American Steel & Wire Co.

Decided: March 18, 1949.

PETER A. DONOHER, PETITIONER-RESPONDENT,
v.
AMERICAN STEEL & WIRE COMPANY, RESPONDENT-APPELLANT



On appeal from Mercer County Court of Common Pleas.

McGeehan, Donges and Colie. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

The only question presented is whether the petition for compensation under the Workmen's Compensation Act was filed within the time prescribed by law.

The accident and the injury to the employee's back occurred in September 1944. He received lamp treatments for his back

injury at the plant dispensary on September 11, 1944, and thereafter at frequent intervals until March 23, 1945, which was the last day of treatment. That all the treatments were for the back injury sustained in September appears to be conceded. He continued in the company's employ from the date of the injury until March 1946, and lost no time from his work. Petition was filed November 25, 1946.

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. R.S. 34:15-51 provides:

"Every claimant for compensation under article 2 of this chapter (Section 34:15-7 et seq.) shall, * * * 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 (Section 34:15-7 et seq.) shall constitute an agreement for compensation. * * *"

It is argued that the furnishing by the employer of medical treatment for the employee's injury is "payment of compensation", as these words are used in R.S. 34:15-51, and therefore this petition was filed within the third period provided therein, namely, "in case a part of the compensation has been paid, then within two years after the last payment of compensation." The question appears to be novel in this State. The difficulty in determining what is meant by "compensation" and "payment of compensation" as used in particular sections of the Workmen's Compensation Act and kindred acts and the different constructions given by our courts are attested by Oldfield v. New Jersey Realty Co. , 1 N.J. 63, 61 A. 2 d 767 (1948); Harper v. New Jersey Mfrs. Casualty Ins. Co. , 1 N.J. 93, 62 A. 2 d 135 (1948); Betsy Ross Ice Cream Co. v. Greif , 127 N.J.L. 323 (Sup. Ct. 1941); Henry Steers, Inc. v. Turner, Etc. Co. , 104 N.J.L. 189 (E. & A. 1927).

We look first at the legislation. This third period for filing petition, now found in R.S. 34:15-51, came into our law first

in P.L. 1918, c. 149, sec. 5, which provided: "in case compensation has been paid by such employer, then within one year after the last payment of compensation." By P.L. 1921, c. 229, sec. 1, "in case compensation" was changed to "in case a part of the compensation"; and by P.L. 1931, c. 280, sec. 1, "one year" was changed to "two years." When incorporated in the Revised Statutes, only editorial change occurred, by which "such employer" became "the employer." When this third period was introduced in 1918, the Workmen's Compensation Act, in section 14(a), provided:

"Compensation for all classes of injuries shall run consecutively and not concurrently, as follows: First two weeks, medical and hospital services and medicines, as provided in paragraph fourteen. After the first two weeks, compensation during temporary disability. Following both, either or none of the above, compensation consecutively for each permanent injury. Following any or all or none of the above, if death results from the accident, expenses of last sickness and burial. Following which compensation ...


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