On appeal from the Superior Court, Appellate Division.
For affirmance -- Justices Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt, and Justices Heher and Oliphant. The opinion of the court was delivered by Wachenfeld, J. Heher, J. (dissenting). Mr. Chief Justice Vanderbilt and Mr. Justice Oliphant join in this opinion.
The endeavor here is to reverse a judgment of the Appellate Division affirming a judgment of the County Court which in turn affirmed a determination by the Workmen's Compensation Bureau concluding that the Bureau had jurisdiction over the petitioner's claim and that it was not barred by the statute of limitations. There being a dissenting opinion in the Appellate Division, the appeal before us is one of right. R.R. 1:2-1(b).
The employer contends the petitioner's claim was filed too late and is barred by the two-year statute of limitations, thereby depriving the court of jurisdiction. The facts in the main are not disputed except as hereinafter noted.
The parties before the Bureau stipulated that the issue of jurisdiction should first be tried and decided before any proof was to be submitted regarding liability for the claimed injury.
The injury is alleged to have occurred on the 6th of December 1950, but the petition for compensation was not filed until the 24th of February 1954, approximately three years and three months after the incident itself. The delay is attributable to the circumstances narrated in the factual developments.
Under R.S. 34:15-51, every claimant for compensation must file his application within two years after the accident occurred, or where the employer has already paid a part of the compensation, then within two years after the last payment made. Medical treatment furnished by the employer to the employee is considered as compensation. Oldfield v. New Jersey Realty Co., 1 N.J. 63, 67 (1948).
However, a mere medical examination to determine whether a compensable injury exists is not included within this rule. Sampson v. Thornton, 8 N.J. 415 (1952); Schwarz v. Federal Shipbuilding & Dry Dock Co., 16 N.J. 243 (1954).
The employee "pulled his back" while using a large wrench as he was tightening a nut which caught, causing him to strain his back on December 6, 1950. Two days thereafter, on December 8, he was examined by Dr. Rucker, the plant physician, X-rays were taken, his back was "taped up" and diathermy treatments were supplied "twice a week" for "about seven or eight weeks." During this period he saw Dr. Rucker "once a week." This, from the record, is the petitioner's testimony.
The company doctor denies he taped the petitioner's back, and the appellant, although it does not concede the extent of treatments testified to by the petitioner, does admit he was treated by diathermy "from December 18, 1950 to December 27, 1950," the number of times not being disclosed in the record. Following the diathermy applications at this time, the petitioner was "discharged from further treatments."
Either "in the latter part of December 1951 or in the early part of 1952" the petitioner again visited the company dispensary and complained about his back. He had "a little pain in my back and my leg was numb, my left leg." "It was bothering me. I could not work." The dispensary sent the petitioner to the company doctor, Dr. Rucker. He "looked" at the petitioner and referred him to Dr. Policastro, and in the early part of March 1952 Dr. Policastro "examined" the petitioner. The examination is described by the petitioner as: "He was hitting me with rubber hammers all over." When asked by the Deputy Director what Dr. Policastro did: "Did he give you any advice, treatments, or did he give you both?" the witness answered: "He gave me advice."
Following this incident the petitioner was told by Miss Markham in the office that "they won't give me any more
medical treatments." Thereafter the petitioner was treated by his own doctor.
Dr. Policastro was not called as a witness. Dr. Rucker testified he saw the petitioner in April 1952. He was referred to him on April 8, 1952 in regard to a back injury. "He was examined by me and an examination showed a restricted trunk flexion to 70 degrees with some tenseness over the posterior aspect of the left side. He could complete the squat test. There was no restriction of extension or lateral bending of the trunk. I could find no spasm over the lumbosacral or the sacroiliac ...