Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
Petitioner's claim for workmen's compensation as a state employee was denied in the Division of Workmen's Compensation on the ground of lateness of filing of claim, within N.J.S.A. 34:15-34. The Monmouth County Court affirmed.
The following pertinent facts are undisputed. Between November 1949 and February 1950 petitioner was an employee of the State, attending tubercular patients at the New Jersey State Hospital at Marlboro. As a result of the exposure she contracted tuberculosis, leaving state employment October 1, 1950. Thereafter she was hospitalized in various public institutions for treatment and surgery and she is still ill and under treatment. Certainly by January 1952, and probably a year before, she knew her condition was connected with the exposure at Marlboro. The petition for compensation as for an occupational disease was filed September 28, 1954. So far as material the controlling provisions of N.J.S.A. 34:15-34 read as follows:
"All claims for compensation for compensable occupational disease shall be barred unless a petition is filed in duplicate with the secretary of the workmen's compensation bureau * * * within two years after the date on which the employee ceased to be exposed in the course of employment with the employer to such occupational disease * * * or within one year after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration. In case an agreement of compensation for compensable occupational disease has been made between such employer and such claimant, then an employee's claim for compensation shall be barred unless a petition for compensation is duly filed * * * 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 such employer, then within two years after the last payment of compensation.
Notwithstanding any provision of this section hereinabove set forth, all claims * * * shall be forever barred unless a petition is filed * * * within five years after the date on which the employee ceased to be exposed * * * to such occupational disease."
It is apparent that the petition was not filed within either two years after exposure to the disease or one year after petitioner knew the nature of the illness and its relation to her employment. It is argued, however, that the five-year period mentioned in the last quoted paragraph of the section makes the present claim timely. The construction is patently inadmissible. The reference relied upon does not purport to be in substitution for the previously specified limitation periods, a result which would make the latter surplusage, but only to qualify those provisions so as to bar claims filed more than five years after exposure even though not more than one year after knowledge, etc.
It is next contended that the claim is saved by application of the statutory provision concerning agreements for compensation between the parties. The factual support for the position is this. On January 12, 1951 petitioner wrote from Allenwood Hospital to Mr. Joseph Bocchetti, personnel director at Marlboro Hospital, inquiring, "if I am eligible for any disability benefits from the compensation that Insurance covers in the Hosp." Bocchetti replied January 16, 1951, enclosing certain forms for her signature and stating: "These papers are for the purpose of filing a claim for workmen's compensation." Petitioner signed them and apparently returned them to Bocchetti. The only indication before us as to what these forms were is their description by respondent as a set of carbon copies of certain typed-in forms approved by the Division of Workmen's Compensation, Form No. 1 for the purpose of reporting an accident, and Forms No. 2 and No. 3 being agreements by the employer to pay and by the employee to accept stipulated amounts of compensation. These were introduced in evidence by
respondent for the purpose of establishing petitioner's knowledge of the work-related nature of her disease as of January 16, 1951, the date which the forms bear. Respondent informs us that the practice is for Form No. 2 to be filed where agreement for compensation is reached and Form No. 3 if the terms of settlement are approved by the Division. The particular copy of Form No. 2 in the present record bears the typewritten name, "H. L. O'Connor, Business Mgr. N.J. State Hospital, Marlboro," at the place indicated by the form for "signature of employer or insurance carrier." The form was obviously prepared unintelligibly and ineffectively if for settlement purposes as the answers to both the questions, "State the amount of weekly wages" and "State the weekly compensation to be paid the injured," are given as $190 per month.
There was no testimony at the hearing by either Mr. Bocchetti or Mr. O'Connor. It is represented to us by respondent that inquiry fails to discover the originals of either Form No. 1 or Form No. 2 and that none of the forms were filed with the Division. It is obvious that no "agreement of compensation" was ever in fact made between the parties (petitioner testified she did not read the forms when she signed them), although petitioner would certainly appear, as of January 1951, to have been justifiably relying upon the State to do whatever was required to process her claim for compensation. But she was never paid any money purported to represent compensation -- only her salary, which was continued until October 31, 1951. We cannot find from what is before us that "an agreement of compensation" was made, within the meaning of N.J.S.A. 34:15-34, which would extend the period of limitations for 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 such employer, then within two years after the last payment of compensation."
Even were there a basis to find that an agreement had been made between petitioner and the State for compensation, the statute would ...