Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Petitioner appeals from a County Court judgment affirming an award of counsel fees by the Division of Workmen's Compensation.
It is undisputed that petitioner suffered a total loss of vision in his right eye as a result of an accident arising out of and in the course of his employment with respondent. The deputy director made an award of 100% permanent disability for that loss (150 weeks at $30 a week), and also 5% of total for psycho-neurosis (27 1/2 weeks at the same rate). He allowed an attorney's fee of $160, based on only the $825 awarded for the psycho-neurosis. In awarding this limited counsel fee the deputy director relied on N.J.S.A. 34:15-64, which reads in part:
"* * * 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. * * *"
The deputy director as well as the County Court judge held that respondent employer had complied with the statute so as to preclude an attorney's fee for that part of the judgment representing compensation for loss of vision.
Petitioner was injured October 10, 1955. Respondent had actual notice of the accident the same day and proceeded to furnish all necessary medical services. Its eye specialist, Dr. Lisman, performed an operation for retinal detachment of the right eye on October 25, 1955. Under date of December 16, 1955 he reported to respondent that petitioner had "100% schedule loss of vision and the prognosis for the return of vision is very poor." He stated he had advised petitioner to return to work, but to remain under the observation of his local doctor. Respondent paid 12 weeks' temporary disability, covering the period from the date of injury through January 4, 1956, when petitioner returned to work.
Petitioner then consulted counsel, who filed a claim petition on February 10, 1956. It was served on respondent March 14, 1956. Respondent had meanwhile received a report from its examining ophthalmologist, Dr. Plain, dated February 14, 1956 and fixing loss of vision in the right eye at 100%. Counsel for petitioner had apparently also arranged for an examination, for he received a report from his own examining physician dated February 18, 1956.
On March 26, 1956 respondent filed its answer, sworn to March 14, the same day the petition was served. The answer admitted a work-connected injury, knowledge thereof, and that there had been "100% loss of right eye"; further, that medical aid had been furnished and temporary disability paid for 12 weeks, but no permanent disability. On March 21, 1956 defendant mailed petitioner its check for $360, without any accompanying letter of explanation or notation, except for "Wages to 3-28-56," typed on the face of the check. (At the hearing held in September 1956, counsel for respondent explained that this check was a first payment on account of permanent disability, covering the period of
12 weeks from January 5 to March 28, 1956, inclusive.) Respondent has continued to make regular payments of $30 a week since. One other fact should be noted: the pretrial, originally set for June 8 and postponed to June 22, was finally held on July 13, 1956. At that time respondent for the first time expressly offered to pay 100% permanent disability for loss of the right eye.
In the light of these facts, the deputy director found that respondent had made a timely offer, tender and payment in good faith, as required by the statute. In concluding that it had acted "at a reasonable time," as required by the statute, he stated: "the test period can begin only when the attorney enters into the picture, approximately the time that the petition was filed, and the end of that period where the good faith applies is a reasonable period." The County Court judge agreed that respondent had met the statutory requirement; he found it had offered compensation at a reasonable time prior to the hearing and paid the amount then due in good faith, so that both the employer and employee were relieved of liability to petitioner's attorney for any counsel fee based on the loss of vision.
Respondent contends that its answer admitting 100% disability in the right eye, its check of March 21, 1956, and the offer it made at the pretrial conference, amounted to a good faith offer and tender of compensation, within a reasonable time before hearing, so that petitioner's attorney was entitled to nothing more than he received -- a counsel fee on the 5% allowed for the psycho-neurosis. On the other hand, petitioner claims that (1) neither respondent's answer to the claim petition nor its check of March 21 constituted an unconditional offer or tender ...