Sullivan, Carton and Halpern. Halpern, J.A.D. Sullivan, P.J.A.D. (concurring).
The narrow issue before us is whether an employee who suffers a compensable accident can maintain a common law action against his employer's insurance carrier for alleged wrongful and wanton acts of such carrier, resulting in injuries to the employee, which are not compensable under the Workmen's Compensation Act.
The trial court answered the issue in the negative and granted defendant's motion for judgment on the pleadings (erroneously termed summary judgment) and dismissed the complaints of the injured employee, plaintiff Charles Rothfuss, and his wife Juanita, who had sued per quod. For convenience the Rothfusses will be referred to as plaintiff. Defendant's motion for judgment was not supported by affidavits or depositions; it merely filed a brief and relied on the pleadings. Plaintiff relied on affidavits filed by his attorney and himself, which were uncontradicted. This appeal followed.
On this motion the court must assume the truthfulness of the allegations in plaintiff's pleadings and give him the benefit of all reasonable inferences arising therefrom, and is called upon to decide only whether, as a matter of law, a cause of action has been stated.
Plaintiff, in the first and second counts of the complaint and supporting affidavits alleged the following: On July 26, 1966 he was an employee of Rascal House, Inc. and sustained a compensable injury. Due notice of the injury was given defendant on that same day. Defendant, the insurance carrier for plaintiff's employer, negligently, willfully and wantonly failed and refused to provide medical treatment to plaintiff, contending he had not sustained a compensable injury. In the third and fourth counts plaintiff alleged that on September 27, 1967, at the request of defendant, he was admitted to a hospital in Long Branch, New Jersey, for examination and treatment under the supervision of Dr. Donohue, who was employed by defendant. Thereafter Dr. Donohue performed a myelogram and reported to plaintiff and defendant that plaintiff's condition required an operation to remove a disc. On three occasions plaintiff was prepared for surgery, but each time it was cancelled on defendant's refusal to authorize it. He charges he was confined to the hospital for 23 days and then was compelled to leave without the operation being performed because of his inability to pay for it.
He further charges that the acts set forth in the four counts of the complaint were committed negligently, willfully, wantonly and maliciously, with the result that he suffered unnecessary prolonged pain and mental anguish; that his compensatory injury was worsened; that he was prevented from obtaining employment sooner, and that he was not compensated under the workmen's compensation award he ultimately received for any of these injuries. Plaintiff seeks compensatory and punitive damages.
It is important to note that plaintiff contends that shortly after the accident plaintiff's employer gave written authorization
for treatment to a Dr. Alexander, and at the hearing before the Workmen's Compensation Division on December 20, 1967 the employer admitted the employment and the happening of the accident -- this despite its previous denials. Plaintiff was awarded compensation on December 20, 1967; the disc operation was performed on January 22, 1968, and he was authorized to return to work on June 1, 1968.
In dismissing the entire complaint the trial judge concluded that the Workmen's Compensation Act was a bar to this suit, and plaintiff was limited to the relief afforded under the act. We affirm his dismissal of the first and second counts of the complaint, but reverse as to the third and fourth counts.
The first and second counts of the complaint charge defendant with failing to furnish prompt and adequate medical treatment. The remedy for such alleged wrongs lies within the provisions of the Workmen's Compensation Act, N.J.S.A. 34:15-15 and 34:15-15.1, and a suit at common law cannot be maintained N.J.S.A. 34:15-7 and 34:15-8.
Turning to the third and fourth counts of the complaint, it is alleged that defendant insurance company voluntarily undertook to examine and treat an injured employee by its own doctor, and then in disregard of such doctor's advice wrongfully, willfully and maliciously caused the employee to leave the hospital, resulting in the unnecessary suffering of prolonged pain and mental anguish. Such injuries and suffering are not ...