Riccioni v. American Cyanamid Co.

• Decision Date: 26 November 1952
• Docket Number: No. C--333,C--333
• Parties: RICCIONI v. AMERICAN CYANAMID CO.
• Court: New Jersey County Court

Page 465

23 N.J.Super. 465

93 A.2d 60

RICCIONI v. AMERICAN CYANAMID CO.

No. C--333.

Somerset County Court Law Division, New Jersey.

Nov. 26, 1952.

Parsonnet, Weitzman & Oransky, Newark, for petitioner (William D. Mungle, Newark, of counsel).

Wharton, Hall & Stewart, Somerville, for respondent (Frederick W. Hall and A. Arthur Davis, 3rd, Somerville, of counsel).

ARTHUR B. SMITH, J.C.C.

The deputy director who heard this matter in the Division of Workmen's Compensation concluded that petitioner's claim for compensation was not filed within the time required by statute; that the voluntary payment of medical expenses by the respondent did not cause a revival of petitioner's already lost cause of action, and that the Workmen's Compensation Division was without jurisdiction to entertain petitioner's claim. The claim petition was therefore dismissed.

The facts are not in dispute. It was agreed by both parties and found by the deputy director and this court finds the following facts: The petitioner suffered an accident arising out of and in the course of his employment on December 7, 1942. After the accident the respondent furnished three or four medical treatments to petitioner, the last on December 14, 1942. Petitioner lost no time from his work and continued his employment regularly with the respondent until he had an epileptic seizure, for which he obtained treatment, in the year 1948. He was suspended from his work on June 23, 1948 and did not return to his work until November 21, 1948. During this period of time he applied for and was paid accident and health insurance benefits on the basis of a non-compensable condition. On respondent's application an order was entered in the Division of Workmen's Compensation on November 19, 1948, pursuant to the provisions of R.S. 34:15--16, N.J.S.A., permitting the respondent to pay the cost of certain medical treatment necessitated by the petitioner's epileptic seizures, which costs had been incurred by the petitioner during the aforementioned absence from work and without any request to respondent to furnish such treatments. This order, as permitted by the statute, reserved the respondent's defenses in connection therewith, and particularly the defense of jurisdictional limitation. The respondent thereupon paid these expenses. Subsequently, in the months of May and June 1949 respondent, at petitioner's request and without the benefit of any such order, paid certain bills for additional medical treatments obtained by petitioner, again without any request to respondent to furnish treatment. Petitioner was again suspended from work on July 20, 1949 and has not worked for respondent since. He has been paid private plan disability benefits, plus supplemental coverage, for the period from July 20, 1949 through January 25, 1950. Such payments were also made on the basis of a non-compensable condition. Respondent acknowledged that in March 1950 petitioner was suffering from the effects of a post traumatic epilepsy as a result of the December 1942 accident. That he is totally and permanently disabled is not disputed.

Petitioner's claim petition in this action was not filed until November 23, 1949. In this posture of admitted and determined facts the deputy director found the sole question for determination to be whether petitioner's claim petition, based on the accident of December 7, 1942, had been filed within the time required by the provisions of R.S. 34:15--41, N.J.S.A. and R.S. 34:15--51, N.J.S.A. The deputy director found adversely to the petitioner and he appeals to this court from the finding of facts, determination and order of dismissal.

The provisions of R.S. 34:15--51, N.J.S.A., insofar as they are here pertinent, require the claimant to file his petition either 'within two years after the date on which the accident occurred * * * or in case a part of the compensation has been paid by the employer, then within two years after the last payment of compensation.' R.S. 34:15--41, N.J.S.A., provides that 'In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed * * * as prescribed by section 34:15--51 of this title.'

Petitioner's claim petition was not filed until almost seven years after the date of the accident and after the date when the last medical treatment was furnished by the respondent but within less than one year after the respondent had paid for certain medical treatments which had been obtained by the petitioner without any request to the respondent to furnish such treatments.

It is obvious that under the statutory provisions last cited the petitioner's claim for compensation became 'forever barred' in the month of December 1944, two years after the happening of the accident or after the date on which the last medical treatment was furnished by the respondent to the petitioner. His claim, then, had been 'forever barred' for almost four years when respondent, in November 1948, made the first payment for medical treatments obtained by petitioner; for more than four years when respondent made the second and third such payments, and for almost five years when petitioner's claim petition was filed in November, 1949.

The question here to be resolved is whether the payments voluntarily made by respondent for medical treatments obtained by the petitioner were efficacious to revive a claim which had then been already 'forever barred' for approximately four years. Only if this question can be affirmatively answered can it be held that the claim petition was filed within time and that the Division of Workmen's Compensation had jurisdiction to entertain the claim.

That medical treatment of an injured employee, furnished and paid for by his employer, constitutes 'payment of compensation' within the provisions of R.S. 34:15--51, N.J.S.A., appears to be well settled. Sampson v. Thornton, 10 N.J.Super. 426, 76 A.2d 850 (Cty.Ct.1950), reversed on other grounds 14 N.J.Super. 353, 82 A.2d 441 (App.Div.1951), affirmed 8 N.J. 415, 86 A.2d 117 (1952); Oldfield v. New Jersey Realty Co., 1 N.J. 63, 67, 61 A.2d 767 (1948); Donoher v. American Steel & Wire Co., 2 N.J.Super. 72, 64 A.2d 622 (App.Div.1949); Jensen v. Wilhelms Construction Co., 18 N.J.Super. 372, 87 A.2d 365 (App.Div.1952); Bocchino v. Best Foods, Inc., 16 N.J.Super. 154, 84 A.2d 40 (Cty.Ct.1951). Whether voluntary payment by the employer for medical treatment previously obtained by the injured employee, and which the employee did not request the employer to furnish, may also constitute 'payment of compensation' within the provisions of the last cited statute may not be so settled. See Oldfield v. New Jersey Realty Co., supra, and Donoher v. American Steel & Wire Co., supra. If the circumstances which prevailed at the time the employer voluntarily paid for the cost of such treatment were such that the employee could have compelled his employer to pay therefor under the provisions of the Workmen's Compensation Act, then, following the reasoning employed in Betsy Ross Ice Cream Co. v. Greif, 127 N.J.L. 323, 22 A.2d 571 (Sup.Ct.1941), it might be concluded that such payment made by the employer would constitute 'payment of compensation' within the meaning of the statute. However, the solution of this question is not deemed necessary to the proper decision of this case and, therefore, no attempt will be made to solve it here.

It is firmly established in this state 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 Workmen's Compensation Act; that the filing thereof within the time fixed by the statute is jurisdictional and the failure to file within the statutory period bars the proceeding. Valentine v. Walter Kidde & Co., 136 N.J.L. 292, 55 A.2d 664 (Sup.Ct.1947); Bocchino v. Best Foods, Inc., supra; Miller v. Beller Electric Supply Company, 100 N.J.Eq. 444, 136 A. 342 (Ch.1927); Smith v. Klemm, 186 A. 784, 14 N.J.Misc. 665, 670 (Dept. of Labor, 1936), reversed on other grounds 118 N.J.L. 471, 193 A. 790 (Sup.Ct.1937).

No claim petition having been filed by the petitioner within two years after December 1942, the month in which the accident occurred and in which the last medical treatment was furnished by the respondent, the Division of Workmen's Compensation lost, in December 1944, jurisdiction over any proceeding which might theretofore have been instituted by the filing of a claim petition in petitioner's behalf. Jurisdiction over the subject matter may not be conferred by consent or by waiver, where the tribunal otherwise has no jurisdiction over it. Brown v. Allied Plumbing & Heating Co., 130 N.J.L. 487, 33 A.2d 813 (E. & A.1943); Bocchino v. Best Foods, Inc., supra. It seems to necessarily follow that the voluntary payments made by the petitioner in the latter part of 1948 and the early part of 1949 cannot be construed as having, by consent or waiver, conferred upon the Division of Workmen's Compensation some jurisdiction over this subject matter which that tribunal did not then otherwise possess. It may be well to here note that at the time of making of the order of November 19, 1948, the Division lacked jurisdiction to act in the matter. That circumstance, however, in nowise affects the rights or liabilities of these parties.

The state of Kansas has a compensation statute containing provisions (G.S.1935, 44--520a) somewhat comparable to our R.S. 34:15--41 and 34:15--51, N.J.S.A., and providing, in part, that 'no proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the...