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Mangieri v. Spring Tool Co.

Decided: June 12, 1961.

GIULIO MANGIERI, PETITIONER-APPELLANT,
v.
SPRING TOOL CO., RESPONDENT-APPELLEE



On appeal from the Division of Workmen's Compensation.

Fulop, J.c.c.

Fulop

Petitioner appeals from a determination of the Division of Workmen's Compensation denying his petition for compensation.

On March 10, 1955 petitioner injured his back in the course of his employment by respondent. He was treated by Dr. William B. McLaughlin whose services were furnished by respondent. His last visit to the doctor was on January 13, 1956, to check the fitting of a corset type belt or brace previously prescribed by Dr. McLaughlin and furnished by the employer. On that date Dr. McLaughlin advised petitioner to wear the brace "religiously" for six months and whenever he felt weakness or was doing anything other than light work.

Petitioner continued in respondent's employment until after January 11, 1958. On that date he suffered another incident injuring his back. This incident was admittedly not work-connected. On January 27, 1958 petitioner was admitted to a hospital and a spinal fusion was performed.

The petition for compensation was filed on February 17, 1958, more than two years after the last visit to Dr. McLaughlin on January 13, 1956.

Dr. McLaughlin did not testify at the first hearing. The petition was dismissed for the reason that the Judge of Compensation was of the opinion that it had been filed out of time. An appeal to this court resulted in a reversal and remand to the Division for further proceedings. Judge Barger's opinion is reported at 62 N.J. Super. 32 (1960).

On remand, additional testimony was taken before Compensation Judge Kaltz. Dr. McLaughlin testified that petitioner's disability had reached a plateau of permanence on January 13, 1956, that he prescribed the brace as a crutch to support the muscles of the back for comfort and security and to reassure the patient. He did not tell the patient to return since no further treatment was needed. Admittedly the employer did nothing for the petitioner with respect to the injury in question after January 13, 1956.

Other testimony revealed that petitioner had had back injuries in 1946 and 1950 and that his back was weak. The evidence as to causal connection between the 1955 accident and the 1958 injury and spinal fusion was extremely limited and speculative. Judge Kaltz found that the episode of January 11, 1958 was a separate, independent occurrence without relationship to the incident of March 1955. Examination of the testimony fully supports this finding and I so find.

Judge Kaltz further held that the prescribing of the Knight Brace in January 1956 was for comfort and assurance and not as a cure, that petitioner was only required to wear the brace when he felt that it was necessary, and that his permanent disability was fixed on January 13, 1956, at his last visit to Dr. McLaughlin when no further treatment was indicated. He therefore concluded that the prescribing of the brace was not treatment as defined by the decisions and denied compensation upon the ground that the petition was not filed within the time permitted by the statute.

Petitioner also contended below and contends here that respondent employer should be estopped from setting up the bar of the statute on the ground that the advice and direction of the employer's physician misled petitioner and prevented him from filing his petition in time. The contention was rejected below on the facts. There is nothing in the evidence which would warrant a finding in favor of petitioner on this point.

Petitioner's main contention on this appeal is that the two-year period allowed for filing a petition for compensation did not begin to run until six months after the brace had been furnished to petitioner and he was discharged by the employer's physician. It is argued that, since Dr. McLaughlin advised petitioner to wear the brace for six months "religiously" and petitioner did so, petitioner was receiving "treatment" during the six-month period and the statute was tolled until the expiration of that time. Under

this view, petitioner had until July 13, 1958 to ...


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