Schwarz v. Federal Shipbuilding & Dry Dock Co.

• Decision Date: 18 October 1954
• Docket Number: No. A--14,A--14
• Citation: 16 N.J. 243,108 A.2d 417
• Parties: John J. SCHWARZ, Petitioner-Appellant, v. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, Defendant-Respondent. Emily Nixon SCHWARZ, Petitioner-Appellant, v. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 243

16 N.J. 243

108 A.2d 417

John J. SCHWARZ, Petitioner-Appellant, v. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, Defendant-Respondent.

Emily Nixon SCHWARZ, Petitioner-Appellant, v. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, Defendant-Respondent.

No. A--14.

Supreme Court of New Jersey.

Argued Sept. 27, 1954.

Decided Oct. 18, 1954.

Mortimer Wald, Newark, for appellants.

John J. Monigan, Jr., Newark, for respondent (Stryker, Tams & Horner, Newark, attorneys; William L. Dill, Jr., Newark, of counsel).

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal from a judgment of the Appellate Division, Superior Court, 29 N.J.Super. 374, 102 A.2d 678, reversing a judgment of the Hudson County Court which had affirmed an award of the Workmen's Compensation Division wherein compensation on the two petitions filed in this case was allowed. We granted certification, 15 N.J. 379, 104 A.2d 732, on petitions of the claimants, R.R. 1:10--2(d).

The question presented is whether the Workmen's Compensation Division had jurisdiction to entertain the petitions under the time limitation prescribed by the statute. The Appellate Division held that the time had tolled and the Division therefore lacked jurisdiction.

The relevant statutory provisions are:

R.S. 34:15--41, N.J.S.A., which provides:

'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 * * *.'

and R.S. 34:15--51, N.J.S.A., which provides:

'Every claimant for compensation * * * shall * * * file a petition in duplicate with the secretary of the bureau * * * 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. * * *'

On November 2, 1943 the decedent assisted by a fellow worker was attempting to turn a heavy transom locker when it fell, striking him in the groin and testicles and pinning him to the floor. There is no dispute as to the fact of the accident.

The appeal involves two awards and two separate petitions. The first petition was filed by the decedent in his lifetime on February 7, 1947, seeking compensation for disability and the second petition was filed by the decedent's widow on August 26, 1947, seeking to recover dependent's benefits by reason of her husband's death on June 3, 1947. The two actions were consolidated for trial.

More than two years elapsed between the date of the accident on November 2, 1943 and the filing of the claim petition of decedent on February 7, 1947. There was no agreement to pay workmen's compensation benefits and it is conceded that none in fact was paid.

On the day of the accident the employer's male nurse examined decedent and asked him to come back the next day when the company doctor had the nurse furnish him with a suspensory. A month later he went to the plant hospital where he was seen by a number of doctors and certain suggestions were made as to treatment and he was referred to another doctor. None of the plant doctors treated him.

On January 27, 1945 the decedent sought medical treatment from his own doctor who aspirated the scrotum and informed him he would treat the testicle for about a month and if that did not help he would have to remove the testicle. On January 29, 1945 the decedent reported to the plant hospital and was examined by a company physician. The records show there was a swelling of the right testicle and a notation was made on the record that the case was referred to a Dr. Brozdowski for 'final disposition,' and that the doctor was asked for a diagnosis as well as his opinion as to causal relationship. This doctor made a notation on February 1, 1945 describing the swelling of the testicle and recommended examination by a Dr. Daly for malignancy. Dr. Daly was asked to report his findings and diagnosis as well as his opinion as to the causal relationship. That doctor reported he found a low-grade chronic infection which called for treatment and if the ailment did not respond to treatment an operation would be required which might include the removal of the testicle.

It is conceded that Dr. Daly gave no medical treatment. This examination was made on February 5, 1945. Decedent was called to the company office on March 1, 1945 and given a sealed envelope addressed to a Dr. Koppel. He reported to that doctor on the same day and was examined. Dr. Koppel reported that it was difficult to make a diagnosis without aspiration or surgical interference. He was inclined to the opinion that the case was one either of malignancy of the testicle or pathology of an inflammatory nature. He excluded any relation of the trauma to the pathology found. Shortly thereafter decedent was advised by the company that his case was not compensable.

From the time of the accident down until November 1946 the decedent had continued at his work with interruption due to pain. As stated, he had received some treatment from his own doctor and on November 19, 1946 he was admitted to St. Vincent's Hospital, West Brighton, Staten Island, New York, and was discharged on March 1, 1947. He was operated on and although the exact date does not appear, his testicle was removed and he eventually died from a malignancy of the scrotum.

As stated by the Appellate Division, the filing of a claim petition within the time prescribed by the above enumerated sections is a jurisdictional requirement and the petitioner must establish compliance therewith. Miller v. Beller Electric Supply Co., 100 N.J.Eq. 444, 136 A. 342 (Ch.1927); Valentine v. Walter Kidde & Co., 136 N.J.L. 292, 55 A.2d 664 (Sup.Ct.1947); Riccioni v. American Cyanamid Co., 26 N.J.Super. 1, 96 A.2d 765 (App.Div.1953), certification denied 13 N.J. 289, 99 A.2d 450 (1953).

Where medical treatment which could have been required under the statute is actually furnished by the employer, such treatment is considered 'payment of compensation' and a claim petition filed within two years of such 'payment' is within time. Betsy Ross Ice Cream Co. v. Greif, 127 N.J.L. 323, 22 A.2d 571, 572 (Sup.Ct.1941); Donoher v. American Steel & Wire Co., 2 N.J.Super. 72, 64 A.2d 622 (App.Div.1949). Cf. Oldfield v. New Jersey Realty Co., 1 N.J. 63, 61 A.2d 767 (1948).

The Compensation Division and the County Court felt that the claim petition was filed within time by reason of our decision in Sampson v. Thornton, 8 N.J. 415, at page 422, 86 A.2d 117, at page 120, (1952), but the Appellate Division in reversing held that that case was clearly distinguishable in that there the claim for compensation had been recognized and some payments made. In that case temporary disability was paid for a period of three months and an award was made for permanent disability of 1% By agreement. Over a period of a year the petitioner had been treated by company doctors and doctors...