Donoher v. American Steel & Wire Co.

• Decision Date: 18 March 1949
• Docket Number: No. A-47.,A-47.
• Citation: 64 A.2d 622
• Parties: DONOHER v. AMERICAN STEEL & WIRE CO.
• Court: New Jersey Superior Court

64 A.2d 622

DONOHER

v.AMERICAN STEEL & WIRE CO.

No. A-47.

Superior Court of New Jersey, Appellate Division, Part B.

March 18, 1949.

Appeal from Court of Common Pleas, Mercer County.

Proceeding under the Workmen's Compensation Act by Peter A. Donoher, claimant, opposed by the American Steel & Wire Company, employer. From a judgment affirming an award, the employer appeals.

Affirmed.

Before McGEEHAN, Senior Judge, and DONGES and COLIE, JJ.

William L. Dill, Jr., and Stryker, Tams & Horner, all of Newark, for respondent-appellant.

George Pellettieri, of Trenton, for petitioner-respondent.

McGEEHAN, Senior Judge.

The only question presented is whether the petition for compensation under the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq., was filed within the time prescribed by law.

The accident and the injury to the employee's back occurred in September 1944. He received lamp treatments for his back injury at the plant dispensary on September 11, 1944, and thereafter at frequent intervals until March 23, 1945, which was the last day of treatment. That all the treatments were for the back injury sustained in September appears to be conceded. He continued in the company's employ from the date of the injury until March 1946, and lost no time from his work. Petition was filed November 25, 1946.

R.S. 34:15-41, N.J.S.A., provides that claims for compensation shall be barred unless a petition is filed as prescribed by R.S. 34:15-51, N.J.S.A. R.S. 34:15-51, N.J.S.A, provides:

‘Every claimant for compensation under article 2 of this chapter (s 34:15-7 et seq.) shall, * * * 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 compensation. Any payment made in accordance with the provisions of article 2 of this chapter (s 34:15-7 et seq.) shall constitute an agreement for compensation. * * *’

It is argued that the furnishing by the employer of medical treatment for the employee's injury is ‘payment of compensation’, as these words are used in R.S. 34:15-51, N.J.S.A., and therefore this petition was filed within the third period provided therein, namely, ‘in case a part of the compensation has been paid * * * then within two years after the last payment of compensation.’ The question appears to be novel in this State. The difficulty in determining what is meant by ‘compensation’ and ‘payment of compensation’ as used in particular sections of the Workmen's Compensation Act and kindred acts and the different constructions given by our courts are attested by Oldfield v. New Jersey Realty Co., N.J.1948, 61 A.2d 767; Harper v. New Jersey Mfrs. Casualty Ins. Co., N.J.1948, 62 A.2d 135; Betsy Ross Ice Cream Co. v. Greif, Sup.Ct. 1941, 127 N.J.L. 323, 22 A.2d 571; Henry Steers, Inc., v. Turner Const. Co., Err. & App. 1927, 104 N.J.L. 189, 139 A. 42.

We look first at the legislation. This third period for filing petition, now found in R.S. 34:15-51, N.J.S.A., came into our law first in P.L.1918, c. 149, s 5, which provided: ‘in case compensation has been paid by such employer, then within one year after the last payment of compensation.’ By P.L.1921, c. 229, s 1, ‘in case compensation’ was changed to ‘in case a part of the compensation’; and by P.L.1931, c. 280, s 1, ‘one year’ was changed to ‘two years.’ When incorporated in the Revised Statutes, only editorial change occurred, by which ‘such employer’ became ‘the employer.’ When this third period was introduced in 1918, the Workmen's Compensation Act, in section 14(a), provided:

‘Compensation for all classes of injuries shall run consecutively and not concurrently, as follows: First two weeks, medical and hospital services and medicines, as provided in paragraph fourteen. After the first two weeks, compensation during temporary disability. Following both, either or none of the above, compensation consecutively for each permanent injury. Following any or all or none of the above, if death results from the accident, expenses of last sickness and burial. Following which compensation to dependents, if any. In no case shall the total number of weekly payments be more than four hundred.’ P.L.1913, c. 174, sec. 4.

This provision of the 1913 Act is the source of R.S. 34:15-16, N.J.S.A., which now provides:

‘Compensation for all classes of injuries shall run consecutively, and not concurrently, except as provided in section 34:15-15 of this Title, as follows: ‘First, medical and hospital services and medicines as provided in said section 34:15-15. After the waiting period, compensation during temporary disability. If total period of disability extends beyond four weeks, compensation to cover waiting period. Following both, either or none of the above, compensation consecutively for each permanent injury. Following any or all or none of the above, if death results from the accident, expenses of last sickness and burial. Following which compensation to dependents, if any. * * *’

We note that, when ‘payment of compensation’ was used in the 1918 Act, ‘compensation’, by section 14(a) of the statute, included ‘medical and hospital services and medicines.’ ‘Payment’ is defined in part by Webster's International Dictionary as ‘That which is paid; the thing given to discharge a debt or an obligation, or in fulfillment of a promise; pay; recompense; requital; return; as, a payment in kind.’ We conclude that when the third period was introduced in 1918, the words ‘payment of compensation’ were used in the light of section 14(a) of the Act as it then existed, and that it was intended that the furnishing of medical and hospital services and medicines by the employer would be considered ‘payment of compensation.’ The changes made since 1918 in these two sections, which we find to be related, have not changed this feature of their relationship. R.S. 34:15-51 and 34:15-16, N.J.S.A.

This conclusion receives some support from the dicta in the Oldfield case above. There, the date of the last medical treatment was more than two years prior to the date of filing petition, but the employer paid the doctor for medical services furnished by the employer to the injured employee within two years of the date of filing petition, and the court held that the filing was not within time. It...