Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Jayne, J.A.D.
It is represented to us that the present appeal introduces a virgin point in the interpretation and construction of sections 34:15-41 and 34:15-51 of our Workmen's Compensation Law. R.S. 34:15-1. The point, on its way to us from the initial determination by the Deputy Director in the Workmen's Compensation Division, received the very intelligent consideration of Judge Arthur B. Smith of the Somerset County Court, whose opinion is reported in 23 N.J. Super. 465 (Cty. Ct. 1952).
It is expedient here to reproduce from that opinion the statement of what we are told are the stipulated and uncontroverted 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 Rev. Stat. 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 Rev. Stat. 34:15-41 and Rev. Stat. 34:15-51."
The deputy director found adversely to the petitioner. On appeal the County Court resolved that the deputy director justifiably dismissed the petition. The propriety of the latter judgment is now submitted to us.
It is imperative primarily to recognize the pertinent provisions of the statute. R.S. 34:15-41 provides:
"In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed in duplicate with the secretary of the workmen's compensation bureau, as prescribed by section 34:15-51 of this title."
The implicated portion of section 34:15-51 reads:
"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 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." (Emphasis supplied)
Then, too, the premise must be preliminarily acknowledged that the statutory limitations of time are jurisdictional. Valentine v. Walter Kidde & ...