On appeal from New Jersey Department of Labor and Industry, Division of Workmen's Compensation.
The deputy director who heard this matter in the Division of Workmen's Compensation concluded that petitioner's claim for compensation was not filed within the time required by statute; that the voluntary payment of medical expenses by the respondent did not cause a revival of petitioner's already lost cause of action, and that the Workmen's Compensation Division was without jurisdiction to entertain petitioner's claim. The claim petition was therefore dismissed.
The facts are not in dispute. It was agreed by both parties and found by the deputy director and this court finds the following facts: The petitioner suffered an accident arising out of and in the course of his employment on December 7, 1942. After the accident the respondent furnished three or four medical treatments to petitioner, the last on December 14, 1942. Petitioner lost no time from his work and continued his employment regularly with the respondent until he had an epileptic seizure, for which he obtained treatment, in the year 1948. He was suspended from his work on June 23, 1948 and did not return to his work until November 21, 1948. During this period of time he applied for and was paid accident and health insurance benefits on the basis of a non-compensable condition. On respondent's application an order was entered in the Division of Workmen's Compensation on November 19, 1948, pursuant to the provisions of R.S. 34:15-16, permitting the respondent to pay the cost of certain medical treatment necessitated by the petitioner's epileptic seizures, which costs had been incurred by the petitioner during the aforementioned absence from work and without any request to respondent to furnish such treatments. This order, as permitted by the statute, reserved the respondent's defenses in connection therewith, and particularly the defense of jurisdictional limitation.
The respondent thereupon paid these expenses. Subsequently, in the months of May and June 1949 respondent, at petitioner's request and without the benefit of any such order, paid certain bills for additional medical treatments obtained by petitioner, again without any request to respondent to furnish treatment. Petitioner was again suspended from work on July 20, 1949 and has not worked for respondent since. He has been paid private plan disability benefits, plus supplemental coverage, for the period from July 20, 1949 through January 25, 1950. Such payments were also made on the basis of a non-compensable condition. Respondent acknowledged that in March 1950 petitioner was suffering from the effects of a post-traumatic epilepsy as a result of the December 1942 accident. That he is totally and permanently disabled is not disputed.
Petitioner's claim petition in this action was not filed until November 23, 1949. In this posture of admitted and determined facts the deputy director found the sole question for determination to be whether petitioner's claim petition, based on the accident of December 7, 1942, had been filed within the time required by the provisions of R.S. 34:15-41 and R.S. 34:15-51. The deputy director found adversely to the petitioner and he appeals to this court from the finding of facts, determination and order of dismissal.
The provisions of R.S. 34:15-51, insofar as they are here pertinent, require the claimant to file his petition either "within two years after the date on which the accident occurred * * * or in case a part of the compensation has been paid by the employer, then within two years after the last payment of compensation." R.S. 34:15-41 provides that "In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed * * * as prescribed by section 34:15-51 of this title."
Petitioner's claim petition was not filed until almost seven years after the date of the accident and after the date when the last medical treatment was furnished by the respondent,
but within less than one year after the respondent had paid for certain medical treatments which had been obtained by the petitioner without any request to the respondent to furnish such treatments.
It is obvious that under the statutory provisions last cited the petitioner's claim for compensation became "forever barred" in the month of December 1944, two years after the happening of the accident or after the date on which the last medical treatment was furnished by the respondent to the petitioner. His claim, then, had been "forever barred" for almost four years when respondent, in November 1948, made the first payment for medical treatments obtained by petitioner; for more than four years when respondent made the second and third such payments, and for almost five years when petitioner's claim petition was filed in November, 1949.
The question here to be resolved is whether the payments voluntarily made by respondent for medical treatments obtained by the petitioner were efficacious to revive a claim which had then been already "forever barred" for approximately four years. Only if this question can be affirmatively answered can it be held that the claim petition was filed within time and that the Division of Workmen's Compensation had jurisdiction to entertain the claim.
That medical treatment of an injured employee, furnished and paid for by his employer, constitutes "payment of compensation" within the provisions of R.S. 34:15-51 appears to be well settled. Sampson v. Thornton , 10 N.J. Super. 426 (Cty. Ct. 1950), reversed on other grounds 14 N.J. Super. 353 (App. Div. 1951), affirmed 8 N.J. 415 (1952); Oldfield v. New Jersey Realty Co. , 1 N.J. 63, 67 (1948); Donoher v. American Steel & Wire Co. , 2 N.J. Super. 72 (App. Div. 1949); Jensen v. Wilhelms Construction Co. , 18 N.J. Super. 372 (App. Div. 1952); Bocchino v. Best Foods, Inc. , 16 ...