On appeal from New Jersey Department of Labor and Industry, Division of Workmen's Compensation.
This is an appeal from a determination and judgment entered in the Workmen's Compensation Bureau, New Jersey Department of Labor, awarding compensation to the petitioner-appellee (hereinafter referred to as petitioner) under our Workmen's Compensation Act.
A single issue is involved. Is the mere examination of an injured employee by a physician engaged by the employer's insurance carrier, without the rendering of any treatment, sufficient to toll the running of the period of limitation of our Workmen's Compensation Act?
The accident occurred October 19, 1946. Temporary disability was paid from the date of the accident to December
30, 1946, and 1% of total as compensation for permanent disability was paid on June 3, 1947. This was the last money payment of compensation and was made well over two years prior to the filing of the claim petition. The claim petition was filed August 2, 1949.
The petitioner, however, in April, 1948, wrote a letter to the respondent's insurance carrier, complaining that his eye "was not right yet" and that he got great pain in his head at times. The letter further states: "Thought I would write to you and see if there could be something done about it before I give it to my counsel." The insurance carrier arranged for an examination of petitioner, which was made on June 11, 1948. Upon a reading of the transcript, I find that no treatment was given the petitioner and that petitioner himself so testified on more than one occasion, and I further find that the sole purpose of this examination was to furnish information as to the petitioner's condition to the insurance carrier.
R.S. 34:15-51 provides in part as follows:
"Every claimant for compensation * * * shall * * * file a petition * * * 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. * * * A payment, or agreement to pay by the insurance carrier, shall for the purpose of this section be deemed a payment or agreement by the employer * * *."
Thus, the Division of Workmen's Compensation has no jurisdiction to make an award unless the claim petition is filed:
1. within two years after the accident, or
2. within two years after the failure of the employer to make payment ...