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Scharwenka v. Cryogenics Management Inc.

Decided: October 12, 1978.

VIRGINIA SUZANNE SCHARWENKA, PETITIONER-APPELLANT,
v.
CRYOGENICS MANAGEMENT, INC., RESPONDENT-RESPONDENT



On appeal from Division of Workers' Compensation.

Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D.

Conford

This appeal presents the question whether a dependency petition for workers' compensation benefits is barred on limitation grounds, as held by the judge of compensation. We are constrained to affirm.

I

N.J.S.A. 34:15-51 provides that every claimant for compensation shall file a petition "within two years after the date on which the accident occurred," with exceptions not here pertinent. This limitation period has been held to be a jurisdictional requirement, Schwarz v. Federal Shipbuilding and Dry Dock Co. , 16 N.J. 243, 248 (1954), and it is applicable to dependency petitions for death of the worker as well as to disability claims. N.J.S.A. 34:15-41; Oleyar v. Swift & Co. , 51 N.J. 470, 471 (1968); Schwarz v. Federal Shipbuilding and Dry Dock Co., supra.

Decedent Paul Scharwenka was employed as an office worker by Cryogenics Management, Inc. On September 9, 1972 he was piloting a Cessna 310J airplane on a flight from Morristown in this State to Nantucket Island, Massachusetts.*fn1 He had no passengers. The airplane was last heard from as it was approaching Nantucket. Neither Scharwenka nor the plane was ever found. They simply disappeared.

On April 12, 1973 a "Final Decree" of a Probate Court of the Commonwealth of Massachusetts adjudicated that the decedent "died on September 9, 1972 at or near Nantucket, Massachusetts" and that he did so as a result of the loss of the Cessna aircraft en route to Nantucket from Morristown on the said date. Presumably this adjudication was secured to enable the family to settle the estate of decedent.

The instant dependency claim petition, on behalf of petitioner widow and a four-year-old son, was filed February 25,

1975. Respondent employer has denied liability from the outset and has made no payments on the claim. The motion for dismissal by respondent was based on the contention that the "accident" took place on September 9, 1972 and that the claim is out of time as having been filed more than two years thereafter.

Petitioner pursues a number of theories to evade the categorical language of the statute, but we find none of them availing. Several cases are cited to demonstrate the "liberal" approach of the courts to the limitation provisions of the statute, but each of them depends on construction of one or another of the statutory exceptions, primarily that pertaining to extension of the period after payments by or on behalf of the employer. See Jones v. Badger Mfg. Co. , 98 N.J. Super. 410 (Cty. Ct. 1967); V. v. Long Branch Sewerage Auth. , 86 N.J. Super. 56 (App. Div. 1964); Lynch v. Newark , 46 N.J. Super. 335 (App. Div. 1957). Cf. Stroebel v. Jefferson Trucking & Rigging Co. , 124 N.J.L. 210 (Sup. Ct. 1940), aff'd 125 N.J.L. 484 (E. & A. 1940).

Petitioner also invokes the statute for presumption of death at the end of a seven-year period of unexplainable absence, N.J.S.A. 3A:40-1. She argues that she would by virtue thereof have been precluded from bringing any action prior to the expiration of the seven-year period were it not for the Massachusetts decree, Krauss v. Brooklyn Fire Ins. Co. , 130 N.J.L. 300 (E. & A. 1943), and that the effect of that decree is to render the accident one which occurred on the date of the decree for purposes of the limitations statute. The argument is flawed. The Krauss case is distinguishable from that before us since there the absence of the person in question was totally unexplainable. Therefore postponement of suit on his behalf as the named insured on a fire policy beyond the period specified in the policy was held excusable. In the present case, ...


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