Kacprowicz v. Fed. Shipbldg. & Dry Dock Co.

• Decision Date: 26 September 1947
• Citation: 55 A.2d 18
• Parties: KACPROWICZ v. FEDERAL SHIPBUILDING & DRY DOCK CO.
• Court: New Jersey Court of Common Pleas

55 A.2d 18

KACPROWICZ

v.FEDERAL SHIPBUILDING & DRY DOCK CO.

Court of Common Pleas of New Jersey, Hudson County.

Sept. 26, 1947.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by Jerome Kacprowicz, employee, opposed by Federal Shipbuilding and Drydock Company, employer. From a compensation award by Workmen's Compensation Bureau, employer appeals.

Affirmed.

Harold Krieger, of Jersey City (Sylvester S. Garfield, of Jersey City, of counsel), for petitioner-appellee.

James A. Robottom, of Newark, for respondent-appellant.

DREWEN, Judge.

Appellant's only contention on this appeal is that the award was made on a claim petition not filed until after the limitational period had expired. The accident occurred October 29, 1942. The original claim petition was filed December 15, 1943. According to the recitals in the determination and rule for judgment returned with the transcript, there was an agreement of seven per cent. of total permanent disability ‘as the result of a formal settlement made on May 11, 1944.’ Payments were begun and continued as stipulated in the settlement.

On July 13, 1946, a second claim petition was filed, containing the following allegation: ‘Petitioner has not been adequately compensated for his injury.’ In its answer respondent declared it had paid compensation ‘in accordance with formal award’ and reserved the right to move for a dismissal of the petition for claimant's failure to file it within the required time. It is admitted that the second petition was not filed until more than two years after the making of the last of the payments that went to satisfy the sum agreed upon in the settlement. R.S. 34:15-51, N.J.S.A.; Betsy Ross Ice Cream Co. v. Greif, 127 N.J.L. 323, 22 A.2d 571.

Following the hearing of the second petition there was a finding of permanent disability of ten per cent. of total, seven per cent. of which is adjudged to have been satisfied by the payments previously made. The appeal is from that award.

While petitioner admits the lapse of more than two years between the final payment and the filing of the later claim petition, he contends that treatments administered to him by respondent's physicians and on its behalf in March and April, 1946, continued the running of the period so as to render timely the filing of the second petition. Respondent would avoid this effect of the treatments by showing that they were for nothing that has connection with the injury, but rather for a condition entirely due to an intervening, independent cause.

Petitioner's testimony is that by reason of aggravated head pains which he ascribes to the accident he returned to the plant infirmary on a number of occasions in March and April, 1946; that he had to ‘come back for about three weeks' every second or third day, and that the doctor gave him ‘different pills.’ He testifies further that he experienced no accident or injury, other than that alleged in both petitions, prior to the treatments now in question. The injury in this case was to the head, and it was severe, severe enough to render petitioner unconscious for several hours, to cause him to be confined to a hospital for twenty-two days, and to render him unfit for work for four months or more. Dr. Stockfisch certified-the certificates were stipulated into evidence-that his examination of petitioner reveals a post-concussion syndrome; and respondent's own Dr. Blumberg certifies that petitioner ‘probably did have a cerebral concussion’ and that ‘he shows the end results thereof now.’ Another of respondent's physicians, Dr. Connally, who examined petitioner in January and again in April, 1946, testified that petitioner complained to him of headaches ‘as a result of accident some time in the past.’ In the face of all this, plus petitioner's testimony concerning the persistent recurrence and aggravation of head pains following the injury, there appears to be no warrant for the conclusion urged by respondent that the disorder for which petitioner had recourse to its physicians in...