Jensen v. Wilhelms Const. Co.

• Decision Date: 18 March 1952
• Docket Number: No. A--650,A--650
• Citation: 87 A.2d 365,18 N.J.Super. 372
• Parties: JENSEN v. WILHELMS CONST. CO. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 372

18 N.J.Super. 372

87 A.2d 365

JENSEN v. WILHELMS CONST. CO.

No. A--650.

Superior Court of New Jersey.

Appellate Division.

Argued Jan. 28, 1952.

Decided March 18, 1952.

Isidor Kalisch, Newark, argued the cause for the respondent-appellant. (Kalisch & Kalisch, Newark, attorneys).

Mario Turtur, Elizabeth, argued the cause for the petitioner-respondent.

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

The respondent, Wilhelms Construction Company, appeals from a judgment of the Union County Court, in a workmen's compensation case, wherein temporary and permanent disability compensation was awarded to the petitioner-respondent, George Jensen. The Workmen's Compensation Division of the Department of Labor and Industry also found in favor of the petitioner.

The only ground of appeal advanced by the construction company is that Jensen's petition was not filed within the time prescribed by the Workmen's Compensation Act. R.S. 34:15--41, 51, N.J.S.A..

The matter is essentially a factual one. Petitioner claims that on May 13, 1946, while in the employ of the construction company, he sustained an injury to his lower back and leg when he attempted, with the use of a pick, to dislodge a form from concrete. The same evening, he consulted a chiropractor and thereafter received numerous treatments from him. Becoming dissatisfied with the results of these treatments, he consulted several doctors until sometime in September, 1947, when he states he voiced his dissatisfaction to Mr. Frederick Wilhelms, Sr., then president of the construction company, who, Jenson asserts, authorized him to seek treatment of his own choosing, the expense for which was to be borne by the respondent. Subsequently, Jensen consulted Dr. Gay in Baltimore, Maryland, and, on October 30, 1947, was operated on for a dislocated disc. Mr. Frederick Wilhelms, Sr. was not available as a witness at the hearing because of his death in April, 1948. On October 29, 1949, Hensen filed his claim for compensation and in answer to the respondent's contention that the claim was barred by the time limitation of R.S. 34:15--51, N.J.S.A., supra, Jensen argued that the petition was, in fact, filed within the statutory period of two years from the date on which medical care was furnished by the employer pursuant to an agreement so to do. Inasmuch as the basis for Jensen's claim for compliance with the statutory requirements depends upon the factual existence of the alleged authorization made by Wilhelms, Sr. on behalf of the construction company, we feel constrained to carefully examine the evidence and make a new finding of facts.

The furnishing of medical services to employee by employer constitutes 'payment of compensation' within provision of Workman's Compensation Act barring claims for compensation not filed within two years after last 'payment of compensation' by employer, so that claim of employee filed within two years after receiving his last treatment is not barried. Donoher v. American Steel & Wire Co., 2 N.J.Super. 72, 73, 64 A.2d 622 (App.Div.1949). 'On appeal to this court from the judgment of the County Court, we accord determinative weight, in the first instance, to the factual findings of the County Court. Donofrio v. Haag Brothers, Inc., above (10 N.J.Super. 258, 77 A.2d 42 (App.Div.1950)). Particular weight is given in this court to the findings of fact of the County Court, when such findings agree with the findings of fact in the Division of Workmen's Compensation. Cf. Wright v. Westinghouse Elec. & Mfg. Co., 134 N.J.L. 581, 583, 49 A.2d 502 (Sup.Ct.1946), affirmed 135 N.J.L. 460, 52 A.2d 537 (E. & A.1947); Brighton v. Borough of Rumson, 135 N.J.L. 81, 50 A.2d 485 (Sup.Ct.1947). It is only when we are satisfied that the interests of justice require it, that we make independent findings of fact. Rule 3:81--13; cf. Rules 1:2--20 and 4:2--6.' Gagliano v. Botany Worsted Mills, 13 N.J.Super. 1, at page 5, 80 A.2d 125 at page 127 (App.Div.1951). Cf. Temple v. Storch Trucking Co., 3 N.J. 42, 68 A.2d 828 (1949); McGowan v. Peter Doelger Brewing Co., 10 N.J.Super. 276, 282, 77 A.2d 46 (App.Div.1950); Lipscombe v. Loizeaux Lumber Co., 12 N.J.Super. 276, 280, 79 A.2d 483 (App.Div.1951). 'While this court will not exercise its discretionary power under Rule 3:81--13 (cf. Rules 1:2--20 and 4:2--6) to overthrow a factual finding separately arrived at in a workmen's compensation case by two independent tribunals and based upon sufficient evidence, Giresi v. E. I. duPont deNemours & Co., Inc., 7 N.J.Super. 41, 71 A.2d 725 (App.Div.1950); Coronato v. Public Service Coordinated Transport,4 N.J.Super. 1, 66 A.2d 196 (App.Div. 1949), we will reverse when we are satisfied the finding is not supported by sufficient evidence. See Cirillo v. United Engineers & Constructors, Inc., 121 N.J.L. 511, 3 A.2d 596 (E. & A.1938).' Giacchi v. Richmond Brothers Co., 11 N.J.Super. 76, at page 78, 78 A.2d 109 at page 110 (App.Div.1951). See also Ferraro v. Zurcher, 12 N.J.Super. 231, 236, 79 A.2d 473 (App.Div.1951).

The petitioner informed his father, who was outside superintendent of the respondent company, of the accident and was advised by him to stay home for a few days to see what would happen. The same evening, petitioner consulted Dr. Mandel, a chiropractor, who treated him then and on numerous occasions thereafter; that he was dissatisfied with his recuperation; that Wilhelms sent him to see Dr. Chapman, the insurance doctor, and that from there he went to the New Jersey Casualty Manufacturers Insurance Hospital for examination and X-ray treatments. It is admitted that petitioner received six-sevenths of a week temporary disability compensation and that Dr. Chapman's bill and the hospital bills were paid.

Thereafter, petitioner consulted several different doctors on his own in an effort to alleviate his back and left leg condition, which allegedly grew worse. At this point, about September, 1947, the following conversation allegedly took place between Mr. Wilhelms, Sr. and the petitioner, wherein petitioner asked: 'What can I do now? Nobody seems to be able to do anything for me.' To which Wilhelms allegedly replied: 'Well, you don't have to go to an insurance doctor. If they don't want to do anything for you, go to any doctor you want to.' Jensen asserts that he then went to Dr. Gay at Johns Hopkins Hospital in Baltimore, Maryland, where, following his operation, he remained until November 7, 1947, when he was discharged and returned to his home in Elizabeth, New Jersey. Following the operation, Jensen was advised to wear a corset for his lower back while at work.

The petitioner never discussed with his father the matter of the alleged authorization for medical treatment. Despite the fact the medical bills approximating $1,000 were paid by Jensen to the hospital, neither he nor his father ever approached Wilhelms or the construction company for reimbursement pursuant to the authorization and, between the date of his return, and the death of Mr. Wilhelms, Sr., the matter was never discussed. Jensen explains his inaction in this matter as attributable to ignorance and 'not wanting to bother Mr. Wilhelms.' Jensen's father, who had called the hospital to make the necessary arrangements for his son, failed to mention the matter to Mr. Wilhelms, and though he gave his son money to pay for his medical expenses, he stated that h...