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Zanni v. Rudolph Poultry Equipment Co.

Decided: April 23, 1969.

FRED ZANNI, APPELLANT,
v.
RUDOLPH POULTRY EQUIPMENT CO., RESPONDENT



Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

Petitioner Fred Zanni appeals from a judgment of the Atlantic County Court affirming the dismissal by the Division of Workmen's Compensation of his claim petition for benefits because of injury to his thumb.

The dismissal was based upon a finding that the claim for the thumb injury was barred by the statute of limitations,

R.S. 34:15-41 and 51, in that the petition was filed more than two years from the last date on which petitioner received any benefits within the meaning of the Workmen's Compensation Act.

It is not disputed that petitioner was injured on October 24, 1964 in the course of his employment with respondent employer. That accident involved an injury to his right thumb. The instant claim petition for that injury was filed on April 17, 1967. Petitioner came under the care of Dr. George P. Glenn, an orthopedic surgeon, who treated petitioner on behalf of respondent. The basic issue of fact, litigated below and contested in the briefs submitted on this appeal, was whether petitioner's last authorized treatment by Dr. Glenn for his thumb was on March 9, 1965, as the doctor testified and his records reveal, or on April 23, 1965, as petitioner testified. On that issue both the Division and the County Court, on appeal, concurred in finding that Dr. Glenn's last treatment of the thumb was on March 9, 1965. Accordingly, they concluded that the claim petition filed on April 18, 1967 was beyond the two-year limitation period and, for that reason, dismissed it as untimely.

The limited scope of our appellate review, as set forth in Close v. Kordulak Bros., 44 N.J. 589 (1965), requires us to subscribe to that finding -- as between March 9, 1965 and April 23, 1965 -- because it could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility. (Id., at p. 599).

What complicates the case before us is the fact noted by us at oral argument, sua sponte, that the record discloses that petitioner received a treatment from Dr. Glenn for this same thumb injury on March 23, 1967. Dr. Glenn testified that petitioner returned to him on March 23, 1967 and at that time "he indicated that he was still having difficulty with respect to his right thumb. I suggested that X-rays be repeated, which were done."

We have no doubt that "medical treatment" includes examinations and the taking of X-rays. Mangieri v. Spring Tool Co., 68 N.J. Super. 211, 217 (Cty. Ct. 1961). A medical treatment furnished by an employer is considered a payment of compensation and, ordinarily, a claim petition filed within two years of such treatment is timely. Sa v. H.L. Harrison & Son, Inc., 38 N.J. 203, 207 (1962); DeAsio v. Bayonne, 62 N.J. Super. 232, 236 (App. Div. 1960).

In the interest of substantial justice, we requested counsel at oral argument to submit supplemental memoranda of law on whether the furnishing of medical treatment of the thumb by the same doctor, who originally treated petitioner on behalf of respondent for the same thumb injured in the 1964 industrial accident, would entitle petitioner to file a claim petition within two years of that last 1967 treatment when the claim had already been barred by the two-year statute of limitations. The memoranda have been filed and considered.

Is a medical treatment furnished by a doctor after the statute of limitations has run, barring the claim, sufficient to revive the claim so as to give petitioner two more years within which to file a claim petition?

We must note this additional fact. Zanni suffered another industrial accident in 1965, sustaining an injury to his shoulder. He went to see Dr. Glenn for that shoulder injury. He testified that he went on April 23, 1965 and Dr. Glenn gave him "a needle" in the shoulder and other treatment for that injury, and also put "a needle * * * right through the thumb and it came out the other side." The doctor's records do not indicate any treatment of the thumb on that date, but refer to the shoulder treatment. Yet the doctor testified, as noted above, that Zanni's last visit and treatment of the thumb was on ...


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