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Schwarz v. Federal Shipbuilding and Dry Dock Co.

Decided: January 19, 1954.

JOHN J. SCHWARZ, PETITIONER-RESPONDENT,
v.
FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT-APPELLANT, AND EMILY NIXON SCHWARZ, PETITIONER-RESPONDENT, V. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT-APPELLANT



Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

[29 NJSuper Page 375] This appeal involves two workmen's compensation claim petitions. The first, filed by decedent

John J. Schwarz in his lifetime on February 7, 1947, sought recovery of benefits from the Federal Shipbuilding and Dry Dock Company for permanent disability allegedly resulting from an accident which occurred on November 2, 1943. On that date Schwarz, assisted by a fellow-worker, was attempting to turn over a transom locker when it fell, striking him in the groin and testicles and pinning him to the floor. The second petition was filed by his widow on August 26, 1947, seeking to recover dependent's benefits by reason of her husband's death on June 3, 1947. The two petitions were consolidated for trial. The Workmen's Compensation Division upheld the claims, as did the County Court on appeal.

Appellant employer does not raise the question of causal relationship between decedent's employment and the injury and ensuing death. It claims that the Division lacked jurisdiction to entertain the petitions because neither was filed within the time prescribed by R.S. 34:15-41 and R.S. 34:15-51. R.S. 34:15-41 provides that

"In case of personal injury or death all claims * * * shall be forever barred unless a petition is filed * * * as prescribed by section 34:15-51 * * *."

R.S. 34:15-51 requires that

"Every claimant for compensation * * * shall * * * file a petition in duplicate with the secretary of the bureau * * * 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 (ยง 34:15-7 et seq.) shall constitute an agreement for compensation. * * *"

The filing of a petition within the time prescribed by these sections is a jurisdictional requirement and a petitioner must establish compliance therewith. Valentine v. Walter Kidde & Co. , 136 N.J.L. 292 (Sup. Ct. 1947).

The jurisdiction of the Workmen's Compensation Division cannot be enlarged by consent, waiver, estoppel or judicial inclination. Riccioni v. American Cyanamid Co. , 26 N.J. Super. 1 (App. Div. 1953).

More than two years elapsed between the date of the accident on November 2, 1943 and the filing of the claim petition by decedent on February 7, 1947. Since there was no agreement to pay workmen's compensation benefits under R.S. 34:15-50, the only basis for holding that the Division had jurisdiction is that the physical examination of decedent by Dr. Koppel on March 1, 1945 (hereinafter described) was a payment of compensation within the meaning of R.S. 34:15-51 and therefore extended the time for filing the petition.

Medical treatment furnished and paid for by the employer is considered a part payment in the nature of compensation within the meaning of the act, and a claim may be filed within two years thereafter. Betsy Ross Ice Cream Co. v. Greif , 127 N.J.L. 323 (Sup. Ct. 1941); Donoher v. American Steel & Wire Co. , 2 N.J. Super. 72 (App. Div. 1949). And see Oldfield v. New Jersey Realty Co. , 1 N.J. 63, 67 (1948).

Both the deputy director and the County Court judge determined that decedent's claim petition was filed within time by reason of the decision in Sampson v. Thornton , 8 N.J. 415 (1952). We do not agree; decedent's ...


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