For affirmance -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall and Haneman. For modification -- Justices Jacobs and Schettino. The opinion of the court was delivered by Hall, J. Jacobs, J. (dissenting).
The principal question presented in this workmen's compensation appeal is whether a compensation judgment fixing permanent disability compensation should further direct that the employer furnish the employee, using the language of the petitioner, "medical, surgical and other treatment, and hospital service, after the disability is fixed, and after the expiration of the statutory period of limitations, if the condition [of the injured part of the body] resulting from the accident requires such * * * treatment and * * * service at a future date."
The issue arises in this factual setting: Petitioner suffered a compensable injury on November 16, 1953 when in the ordinary course of his employment a piece of lead entered his right eye and became embedded in the cornea. On April 11, 1955 the Division of Workmen's Compensation awarded him partial permanent disability compensation
amounting to 10 percent of the eye and 2 percent of total for neurological disability. In 1957 he filed a petition alleging increased disability and was awarded an additional 5 percent of the eye but was denied further neurological disability. On October 15, 1959, just two days before expiration of the two-year limitation on petitions for increased disability, N.J.S.A. 34:15-27, Sa again filed a petition in the Division claiming increased disability. He sought only additional pecuniary benefits and did not assert a claim to further medical or surgical services. After a formal hearing at which the testimony of two ophthalmologists and a third physician was taken, the petition was dismissed, the order stating that "the petitioner has failed to prove by the preponderance of the evidence that there has been any increase in his disability since the last hearing." An appeal was taken to the County Court and the question now before us was first raised on the argument there.
The foreign particle has never been removed from the eye for fear that removal may further impair or destroy the vision. None of Sa's three compensation petitions asked for an order directing that the employer furnish such service should it become necessary at any time in the future. The matter was only obliquely reached during the hearing on the second petition for increased disability compensation. (It is of no significance that the question comes up on such a proceeding; the issue would be the same if raised on an original proceeding for compensation.) The medical testimony was quite clear that, physiologically, the condition of the eye had been static since the 1957 award. Petitioner's claim of alleged increased disability was based largely on subjective complaints. He also sought to show, on cross-examination of the employer's physician witnesses, that the foreign body might have to be removed at some indefinite future time for some presently unknown reason. The purpose apparently was to urge a finding of and pecuniary allowance for increased disability based on prospective necessary medical treatment, as in personal injury actions at law.
Such a thesis is, however, contrary to the fundamental theory of workmen's compensation.
One witness replied that he did not think the particle would ever have to be removed because it had remained inert for seven years and would probably never become active. The petitioner's attorney expressed acceptance of this opinion. The doctor went on to say that he was medically certain there would be no infection or further deterioration. The employer's other medical witness spoke to the same effect in his testimony. There was no contrary testimony and the Deputy Director in his findings agreed with the opinions just recited.
When the instant question was presented to the County Court, it was in the context of these proofs. Petitioner's contention therefore has come down to the bald proposition that an employee is entitled to a broad protective order directing medical treatment and the like at any time in the future in any case, even where all the present medical testimony indicates no likelihood of any prospective necessity for it.
The County Court affirmed the judgment of the Division, agreeing with the finding that there had been no increased disability and declining to accede to petitioner's contention with respect to prospective medical services. The Appellate Division affirmed the County Court on both aspects. We granted petitioner's application for certification, 36 N.J. 303 (1962), directing that counsel put "special emphasis on the question of the effect of the statutory period of limitations on the right to future medical aid."
Since petitioner has also urged here reversal of the finding that there had been no increase in disability, we should first say that our review of the record assures us that this medical fact conclusion, concurred in by all three tribunals below, is the correct one.
Proceeding to the principal question, note should be made of the medical treatment provision in the compensation statute. R.S. ...