Mangieri v. Spring Tool Co.

• Decision Date: 12 June 1961
• Docket Number: No. W,W
• Citation: 68 N.J.Super. 211,172 A.2d 56
• Parties: Giulio MANGIERI, Petitioner-Appellant, v. SPRING TOOL CO., Respondent-Appellee. C. 799.
• Court: New Jersey County Court

Page 211

68 N.J.Super. 211

172 A.2d 56

Giulio MANGIERI, Petitioner-Appellant, v. SPRING TOOL CO., Respondent-Appellee.

No. W.C. 799.

Union County Court, Law Division, New Jersey.

June 12, 1961.

Herbert Drucker, Elizabeth, for petitioner-appellant (Rokos & Drucker, Elizabeth, attorneys).

Isidor Kalisch, Newark, for respondent-appellee.

FULOP, J.C.C.

Petitioner appeals from a determination of the Division of Workmen's Compensation denying his petition for compensation.

On March 10, 1955 petitioner injured his back in the course of his employment by respondent. He was treated by Dr. William B. McLaughlin whose services were furnished by respondent. His last visit to the doctor was on January 13, 1956, to check the fitting of a corset type belt or brace previously prescribed by Dr. McLaughlin and furnished by the employer. On that date Dr. McLaughlin advised petitioner to wear the brace 'religiously' for six months and whenever he felt weakness or was doing anything other than light work.

Petitioner continued in respondent's employment until after January 11, 1958. On that date he suffered another incident injuring his back. This incident was admittedly not work-connected. On January 27, 1958 petitioner was admitted to a hospital and a spinal fusion was performed.

The petition for compensation was filed on February 17, 1958, more than two years after the last visit to Dr. McLaughlin on January 13, 1956.

Dr. McLaughlin did not testify at the first hearing. The petition was dismissed for the reason that the Judge of Compensation was of the opinion that it had been filed out of time. An appeal to this court resulted in a reversal and remand to the Division for further proceedings. Judge Barger's opinion is reported at 62 N.J.Super. 32, 161 A.2d 765 (1960).

On remand, additional testimony was taken before Compensation Judge Kaltz. Dr. McLaughlin testified that petitioner's disability had reached a plateau of permanence on January 13, 1956, that he prescribed the brace as a crutch to support the muscles of the back for comfort and security and to reassure the patient. He did not tell the patient to return since no further treatment was needed. Admittedly the employer did nothing for the petitioner with respect to the injury in question after January 13, 1956.

Other testimony revealed that petitioner had had back injuries in 1946 and 1950 and that his back was weak. The evidence as to causal connection between the 1955 accident and the 1958 injury and spinal fusion was extremely limited and speculative. Judge Kaltz found that the episode of January 11, 1958 was a separate, independent occurrence without relationship to the incident of March 1955. Examination of the testimony fully supports this finding and I so find.

Judge Kaltz further held that the prescribing of the Knight Brace in January 1956 was for comfort and assurance and not as a cure, that petitioner was only required to wear the brace when he felt that it was necessary, and that his permanent disability was fixed on January 13, 1956, at his last visit to Dr. McLaughlin when no further treatment was indicated. He therefore concluded that the prescribing of the brace was not treatment as defined by the decisions and denied compensation upon the ground that the petition was not filed within the time permitted by the statute.

Petitioner also contended below and contends here that respondent employer should be estopped from setting up the bar of the statute on the ground that the advice and direction of the employer's physician misled petitioner and prevented him from filing his petition in time. The contention was rejected below on the facts. There is nothing in the evidence which would warrant a finding in favor of petitioner on this point.

Petitioner's main contention on this appeal is that the two-year period allowed for filing a petition for compensation did not begin to run until six months after the brace had been furnished to petitioner and he was discharged by the employer's physician. It is argued that, since Dr. McLaughlin advised petitioner to wear the brace for six months 'religiously' and petitioner did so, petitioner was receiving 'treatment' during the six-month period and the statute was tolled until the expiration of that time. Under this view, petitioner had until July 13, 1958 to file his petition.

On the other side, respondent argues first that the use of the brace was merely palliative and did not amount to treatment, and second that, whether it be treatment or not, the use of the brace by petitioner without supervision or assistance of any kind from respondent's physician did not constitute payment of compensation and that the statutory period began to run with the patient's discharge by Dr. McLaughlin on January 13, 1956.

R.S. 34:15--41, N.J.S.A., provides that all claims for compensation 'shall be forever barred unless a petition is filed * * * as prescribed by section 34:15--51 of this title.'

R.S. 34:15--51, N.J.S.A., provides for the filing of compensation claims:

'* * * 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 (§ 34:15--7 et seq.) shall constitute an agreement for compensation. A payment, or agreement to pay by the insurance carrier, shall for the purpose of this section be deemed a payment or agreement by the employer. * * *'

Petitioner relies upon the clause: '* * * or in case a part of the compensation has been paid by the employer, then within two years after the last payment of compensation.'

Under these statutory provisions, it is established that the Division of Workmen's Compensation has no jurisdiction to entertain a claim petition filed after the expiration of the time designated in the statute. DeAsio v. City of Bayonne, 62 N.J.Super. 232, 162 A.2d 596 (App.Div.1960), certification denied 33 N.J. 386, 164 A.2d 849 (1960).

The furnishing of medical treatment by the employer constitutes part payment of compensation. Kacprowicz v Federal Shipbuilding & Dry Dock Co., 25 N.J.Misc. 426, 55 A.2d 18 (C.P.1947). Reimbursing an injured employee for a surgical belt and bandages purchased for the treatment of the compensable injury is part payment and the statute begins to run from the date of the last payment to the employee. Betsy Ross Ice Cream Co. v. Grief, 127 N.J.L. 323, 22 A.2d 571 (Sup.Ct.1941). But when the employer arranges with a physician to treat the employee at the expense of the employer, the statutory period begins to run from the last treatment and not from the date when the employer pays the physician. Oldfield v. New Jersey Realty Co., 1 N.J. 63, 61 A.2d 767 (1948).

The last lamp treatment given and the last X-ray taken at the employer's dispensary have respectively been held to be the last payment of compensation. Donoher v. American Steel & Wire Co., 2 N.J.Super. 72, 64 A.2d 622 (App.Div.1949); Crane v. Spencer Kellogg & Sons, Inc., 5 N.J.Super. 17, 68 A.2d 345 (App.Div.1949).

Medical treatment by the employer includes examination in connection with treatment, observation, and tests, as well as the application of remedies. It includes advice to do nothing. It does not include an examination for the purpose of informing the employer as to the condition of the employee for the sole purpose of determining whether or not the employee may be entitled to additional compensation or to aid the employer in defending a claim. Schwarz v. Federal Shipbuilding and Dry Dock Co., 16 N.J. 243, 108 A.2d 417 (1954). If the examination for the employer is so closely connected with remedial treatment that the employee may reasonably believe that it is part of the treatment process, it will be deemed to be treatment. Pfahler v. Eclipse Pioneer Division of Bendix Aviation Corporation, 21 N.J. 486, 122 A.2d 644 (1956); Sampson v. Thornton, 8 N.J. 415, 86 A.2d 117 (1952); Bocchino v. Best Foods, Inc., 16 N.J.Super. 154, 84 A.2d 40 (Cty.Ct.1951).

Medical treatment paid for by a corporation other than the employer under an arrangement with the employer to pay all medical and hospital expenses of a class of employees including petitioner constitutes treatment furnished by the employer. Lynch v. City of Newark, 43 N.J.Super. 546, 129 A.2d 324 (Cty.Ct.1957). Medical treatment obtained by the employee on his own responsibility, not authorized by the employer, does not constitute part payment of compensation. Jensen v. Wilhelms Construction Co., 18 N.J.Super. 372, 87 A.2d 365 (App.Div.1952); DeAsio v. City of Bayonne, supra.

Reimbursement of medical expenses by an employer to an employee as a gratuity and not on account of workmen's compensation does not stay the running of the statute of limitations. Riccione v. American Cyanamid Co., Calco Chemical Division, 26 N.J.Super. 1, 96 A.2d 765 (App.Div.1953), certif. denied 13 N.J. 289, 99 A.2d 450 (1953).

The foregoing appear to be substantially all of the cases in this State dealing with the subject. No decision has been found on the specific issue here presented except the prior county court decision in this case. Petitioner cites Cestone v. Wylie, 169 Ohio St. 182, 158 N.E.2d 520 (Sup.Ct.1959). In that case an employer furnished a heat lamp to an employee advising her to use the same to relieve back pain resulting from a compensable accident. The limitation period was 10 years after the last payment of compensation. The claim petition was filed more than 10 years after the lamp was furnished. Petitioner testified that she continued to use the lamp up to the time of the filing of the petition and the hearing.

The issue there,...