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Jones v. Badger Manufacturing Co.

Decided: December 15, 1967.

HAZEL JONES, PETITIONER-RESPONDENT,
v.
BADGER MANUFACTURING CO., RESPONDENT-APPELLANT



Mariano, J.s.c.

Mariano

Respondent below appeals from a judgment entered in the Division of Workmen's Compensation awarding death benefits to petitioner.

The grounds set forth for the appeal are threefold. First, the widow's petition for death benefits should have been dismissed because it was not filed within two years after the death of her husband. Second, the lack of petitioner's medical proof establishing causal connection between decedent's coronary episode of July 30, 1958 and his death on September 20, 1960. Last, petitioner's acceptance of payments under N.J.S.A. 34:15-12(e) (disability compensation) constitutes an election and therefore bars subsequent right to death benefits.

Decedent Jones had sustained some heart difficulty in May 1956 while working for the Catalytic Construction Co. but failed to seek any compensable benefits therefor. On

November 1, 1956, while working for George H. Fuller Co., he sustained a heart attack and filed claim petition No. C 19912. Following a hearing he was awarded permanent disability based on 25% of total. After that compensable heart attack decedent returned to work and on July 30, 1958, while employed by respondent, sustained another heart attack for which he filed claim petition No. D29807 and was awarded permanent disability based upon another 25% of total. Judge Neutze, at a hearing held on July 23, 1959, found petitioner was totally and permanently disabled from all causes.

The award to petitioner resulting from the infarction of November 1956 was $792.86 for temporary disability and $4,125 for permanent disability. The award for the infarction of July 30, 1958 was $571.43 for temporary and $4,182.50 for permanent disability. Jones died on September 20, 1960.

On July 11, 1961 respondent's carrier issued a check in the amount of $1,382, representing the balance of payments due under the disability award of July 23, 1959 for the July 30, 1958 infarction. This payment covered the period from September 22, 1960 through June 25, 1961. Petitioner herein filed her dependency claim on April 30, 1963, which was not within two years of her husband's death but was within two years of the date of the last payment of compensation representing the balance due under the judgment of July 23, 1959.

The proceedings awarding death benefits amounting to $14,000, subject to a credit of the $1,382 for payment which was made to the widow in accordance with the provisions of N.J.S.A. 34:15-12(e), are now under review by this court.

An analysis of the statutory scheme which outlines the statute of limitations in actions brought before the Division of Workmen's Compensation is imperative to resolving the initial issue at bar. Reference, therefore, is made to N.J.S.A. 34:15-41, which provides:

"In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed in duplicate with the secretary of the workmen's compensation bureau, as prescribed by section 34:15-51 of this title."

The pertinent portion of N.J.S.A. 34:15-51 reads:

"Every claimant for compensation under article 2 of this chapter (ยง 34:15-7 et seq.) shall, unless a settlement is effected or a petition filed under the provisions of section 34:15-50 of this title, file a petition in duplicate with the secretary of the bureau in his office, at the state house, in Trenton, within two years after the date on which the accident occurred, or in case an agreement for compensation has been made between the employer and the claimant, then 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 the employer, then within two years after the last payment of ...


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