Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
This appeal presents the question as to whether certain overtures for payment of workmen's compensation by an employer to an injured employee operated to invoke the limitation of counsel fee prescribed by R.S. 34:15-64, as amended by L. 1952, c. 318.
Prior to the 1952 legislation the material part of the section read:
"* * * When, however, prior to any hearing compensation has been offered or paid, the reasonable allowance for attorney fee shall be based upon only that part of the judgment or award in excess of the amount of compensation theretofore offered or paid. * * *"
As recast, the language now is:
"* * * When, however, at a reasonable time, prior to any hearing compensation has been offered and the amount then due has been tendered in good faith or paid, the reasonable allowance for attorney fee shall be based upon only that part of the judgment or award in excess of the amount of compensation, theretofore offered, tendered in good faith or paid."
Petitioner sustained a compensable injury to his left foot on April 22, 1952. He duly received payment of temporary disability from respondent. Some time in 1953 the employer offered him for his permanent disability the sum of $750, calculated on the basis of 12 1/2% of total. He declined it. Shortly thereafter, at company expense, petitioner had his
foot examined by a specialist, a Dr. DePalma, in Philadelphia. The latter reported his findings to the employer. Thereupon James E. Neill, hospital attendant and employment agent for respondent, called petitioner into his office. Neill's testimony is that he had obtained a $900 company check and that he had before him the check and a workmen's compensation form No. 3 (reporting an agreement for payment and acceptable for filing with or without the employee's signature). On direct examination his testimony was:
"Q. Did you offer the Form 3 and the check? A. I called Mr. Davala into the office, sitting opposite me there, and I said: 'Joe, the company, or Dr. DePalma, rather, seems to concur in the opinion of the company advisers that you have a 15 per cent disability of your foot and I have the Forms 3 here and a check for $900.' And Joe says: 'Nothing doing.' Turned on his heel and walked out.
Q. Did you actually, physically offer him -- A. I held them up. I didn't force them in his hand or anything."
On cross-examination he said he did not explain the form. On redirect examination he added that he said to petitioner: "If it is agreeable, I have the check and the forms here."
Petitioner's testimony was that Neill merely asked him whether he would accept $900 and that his response was in the negative. ...