On appeal from the Superior Court, Appellate Division.
For affirmance -- Justices Heher, Oliphant, Wachenfeld and Ackerson. For reversal -- Chief Justice Vanderbilt, and Justices Case and Burling. The opinion of the court was delivered by Wachenfeld, J.
[8 NJ Page 416] This case arises under the Workmen's Compensation Act and turns upon the narrow issue as to
what constitutes medical treatment such as to bring it within the classification of a "payment of compensation" according to the meaning of the act. The question as presented apparently has not previously arisen in this jurisdiction.
The facts are undisputed. On October 19, 1946, while in the employ of the defendant and engaged in performing his duties as such employee, the petitioner was thrown from a tractor, injured and rendered unconscious. He regained consciousness five hours later in the hospital, where, in consequence of the injuries received, he remained for three weeks. During this period the defendant visited the petitioner and told him he had nothing to worry about, that the accident was covered by insurance which "would take care of it."
A representative of the employer's insurance carrier also visited the petitioner at the hospital and told him: "You will get compensation until you can do light work, then you will be paid in a lump sum for suffering and damages."
The petitioner relied on these statements and sought no independent medical advice, depending entirely upon the undertaking by the insurance carrier to furnish the necessary medical, surgical and other treatment and the hospital services.
Dr. Barber, who was employed and paid by the insurance company, sutured the petitioner's head wound, an operation requiring nine or ten stitches, and thereafter visited the petitioner daily during his three weeks' stay in the hospital. Part of the treatment consisted of 62 penicillin shots, presumably administered under the direction of Dr. Barber as the treating physician. After leaving the hospital, the petitioner went back to Dr. Barber on several occasions for treatment for other resulting injuries to his eye and to his mouth, which was drawn to one side by the gash in his head, for severe headaches and a mastoid condition which the testimony suggests was caused or aggravated by the accident.
While still in the hospital, he was examined by a Dr. Fitch, also employed and paid by the company. On instructions
from an insurance company representative, he called at Dr. Fitch's office after his discharge from the hospital. These visits were concededly for treatment the nature of which is not disclosed by the record. On two other occasions, January 8 and May 13, 1947, at the instigation of the insurance company, the petitioner visited a Dr. Sherman and there is evidence that on these visits drops were placed in his eyes to test or correct a visual condition resulting from the accident and he was subjected to several tests to determine his physical condition.
The petitioner filed no claim but, by agreement, was paid compensation for temporary disability from October 19, 1946, to December 30, 1946, at the rate of $25 per week. In addition, he was paid $137.50, representing compensation at the rate of one per cent of total for permanent disability. The payment was made by check dated June 3, 1947, and was the last money payment made to the petitioner.
In April, 1948, he wrote the respondent's insurance carrier informing it that he felt he had not received adequate compensation for his injuries and pointing out he would give the company an opportunity to make some further adjustment before turning the matter over to his counsel. He stated in the letter ...