*1 nature, the ap- the limitations imposed by Recognizing exemption a different pellant pursues approach urges her, of the aunt’s a father be on the theory being granted is that than a mother. The basis for this suggestion rather of the household and dominant member aunt the father. normally played role reality occupied a father here endeavored of an aunt into changing administered transfusions accomplished cannot be by legal The field seems either or judiciary. Legislature date. early at a to have been nature preempted very is affirmed. below judgment Justices Justice For affirmance—Chief Vanderbilt, and Bkennan—6. Wacheneeld, Oliphant, Hehee, Jacobs For reversal—None. PETITIONER-RESPONDENT, PFAHLER,
HUBERT L. BENDIX AVIATION DIVISION OF ECLIPSE PIONEER CORPORATION, RESPONDENT-APPELLANT. Decided May Argued 1956. March *2 Mr. H. Jones the cause for appellant (Mr. Walter argued B. Walter Hespe, brief).
Mr. Reitman the cause Sidney (Mr. argued respondent Maisel, Lerner, brief; Lawrence E. on the Messrs. Kapelsohn, Beitman, LeucMer attorneys).
The opinion of the court was delivered by here Wachenfeld, J. The endeavor is to reverse judg- ment of the Division Appellate affirming judgment Court in turn affirmed a determination County which Workmen’s Bureau that the Bureau Compensation concluding had it jurisdiction over claim and that petitioner’s not barred the statute of limitations. There being *3 Division, be dissenting opinion Appellate appeal fore us is R. R. 1:2-1 one of right. (6).
The contends the claim was filed too employer petitioner’s limitations, late and is barred statute of two-year the court The facts in the thereby jurisdiction. depriving main are not as hereinafter noted. disputed except
The before the Bureau the issue parties stipulated should first be tried and decided jurisdiction before was to be submitted claimed proof liability regarding injury.
The is to have occurred on the 6th of injury alleged 1950, December but the was not compensation petition 1954, 24th three filed until of February approximately and three after the incident itself. The years months delay is attributable to the circumstances narrated in factual developments. 34:15-51, R. claimant for every compensa
Under S. within two after the years tion must file his application occurred, accident or where the has employer already paid then within two after the part compensation, years made. furnished last Medical payment is as compensation. to considered employee Co., 63, 1 N. 67 v. New J. Jersey Realty (1948). Oldfield However, a mere medical determine examination to whether exists is not included within compensable injury this rule. Sampson v. 8 N. J. 415 Schwarz v. (1952); Federal Dock Shipbuilding Dry 16 N. J. 243 (1954). The employee his while “pulled back” wrench using large he was a nut which tightening him caught, causing strain his back 6, on December 1950. Two days thereafter, on December he was examined Dr. Rucker, the taken, were physician, X-rays his back was “taped up” were diathermy treatments supplied “twice a week” for “about seven or weeks.” eight this he saw During period Rucker This, “once a week.” record, from the is the peti- tioner’s testimony. doctor denies company back, he taped petitioner’s
and the it appellant, does not concede the extent although of treatments testified to does admit he petitioner, was treated by “from diathermy December 27, 1950,” December the number of times not disclosed being in the record. at Following diathermy this applications time, was petitioner from further treat- “discharged ments.”
Either “in the latter December or in the of 1952” early part petitioner visited again company dispensary complained about his He had “a little back. back and pain my numb, was left my “It leg leg.” me. I could not work.” bothering dispensary petitioner doctor, Dr. Rucker. company He at “looked” and referred him Dr.
and in the 1952 Dr. early part March Policastro “ex- amined” the The examination is petitioner. described by petitioner as: “He was me with rubber hammers hitting all over.” When asked by Director what Dr. Deputy Policastro did: “Did he advice, treatments, give you any or did he you both?” witness answered: “He give gave me advice.” this incident was told petitioner Miss
Following by in Markham the office that me any won’t more “they give was treated Thereafter the treatments.” petitioner his own doctor. Dr. Dr. Policastro called as a witness. Rucker was not He was referred testified he saw the 1952. April petitioner “He injury. him 1952 in a back April regard on to examined me an showed a restricted was examination with tenseness over the trunk flexion some degrees complete of the left side. He could aspect posterior restriction extension or lateral test. There was no squat I over the of the trunk. could find no spasm bending he was not treated lumbosacral or the sacroiliac regions Dr. only. me. I this man to Policastro for diagnosis That is extent of connection.” He also denied in December petitioner treating all take There was he did was to an X-ray. claiming and he did know who referred no notation on the record not he had no that the petitioner him and record petitioner He treatment at the admits diathermy plant. was receiving 8, 1952, but he “felt it he examined petitioner April and he was more a than problem orthopedic” neurological he sent him Policastro. He denies received therefore to Dr. he from admittedly report although who doctor in individuals were charge treating hurt at the plant. seems issues
Sampson supra, dispositive case, As in that there is no justification here presented. a series of medical the visit from differentiating provided admittedly embracing consultations and 1951. latter visits are in 1950 company abstract in their to be considered in the but propinquity conduct and circum- course of previous surrounding stances. Dock Dry v. Federal Shipbuilding supra,
Schwarz The record there showed the clearly is not to contrary. were for examinations question purpose determining which was issue case.” relationship “causal answer Here no such issue is presented. respondent’s sustained accident injury by admits arising
491 on and in his the date of the course of employment out in the petition. alleged term all taken to steps
“Treatment” is a broad covering or disease. It includes examina effect a cure of the injury as of remedies. Hester application and as well diagnosis tion Ford, 592, 203 Ct. Sup. 1930); Ala. So. (Ala. v. supra. Sampson Director found: Deputy respond- proofs that a consideration of the “I am satisfied from 8, petitioner April 1952; plant at doctor the on that saw ent’s Bueker, through doctor, respondent, the its Dr. time that cannot, diagnosis. petitioner I to Dr. Policastro
referred agree position however, respondent’s 1952, that the actions of with 8, represent April on did not rendition of Dr. Rucker * * * Rucker, April 8, 1952, any medical Dr. treatment. * * * petitioner furnish to advice and this did render and though is, opinion, as had much medical treatment he as bandage given applied tape actual back or or administration of medication.” level court held: county At Deputy Dr. Rule of Director that “I am in accord with the 1950, April 8, 1952, Rucker, of rendered both December and on Pfahler, that, while Dr. Rucker on treatment Hubert L. actually any therapy prescribe give heat or did or latter date petitioner massage, to the he rendered and furnished nevertheless petitioner and, advice, such advice as result of he specialist. neurological did this he he rendered When petitioner.” treatment medical to the Division, 8, of the visit April Appellate speaking 1952, said: him and him to Dr. Policastro Rucker examined referred “Dr. by neurological petitioner was examined After
for a examination. neurologist plant personnel office for the was told he no the com- that he receive further first time pany. would * * * * * * regard the examination was entitled to course of as continuous * * * employer. liability by disclaimer the absence Deputy conclusion that reached reach same We County Judge, Director, incidentally *6 supply April 8, 1952, did payment meaning compensation which within constituted Act, of that, timely therefore, petition of the was filed.”
The record justifies interpretation already factual made in each three and there is little to of lower tribunals warrant to a contrary our conclusion. coming
Where two lower courts have the facts considered and reached concurrent will make this court findings, a new and unless the error independent finding new concurrent is so findings palpable finding us is to insure essential Midler v. Hein necessary justice. 123, 10 N. J. 128 (1952). owitz three The and reiterated at conclusions reached below record, different examination of the judicial levels, from our and are in accord with justice basically out substantial spell our views.
The below is affirmed. judgment 1950 J. December was date (dissenting). Heher, industrial accident. The asserted back injury of pleaded The did not of the interrupt employment. continuity filed until February was not compensation petition treatment” in 1952 is as a 1954. “Medical alleged the defendant compensation” by employer “payment R. within the intendment of the statutory provision, S. 34:15-41; 34:15-51, that “in case compensation then the limitation has been paid by employer,” two-year run from the “last shall period payment compensation.” “Medical treatment” is within the compensation statutory Co., 1 J. Realty v. New N. 63 Jersey concept. Oldfield mere “examination” is not in But or “diagnosis” (1948). 34:15-15, R. is S. employer this category. obliged, medical, workman “such injured “furnish” to surgical treatment, and service as shall be hospital necessary and other and relieve the workman of the effects of the injury to cure the functions of the member or injured organ and to restore is restoration is and the possible”; obligation where such 493 therein enforceable as Where the provided. provides such “treatment” in fulfillment of the there statutory duty, is within the of the “payment” compensation meaning statute, as much so as the just making compensation or loss of disability function. Schwarz ensuing physical v. Federal Dock J. 243 Shipbuilding Dry N. Ross Ice Cream Co. v. 127 N. J. L. (1954); Betsy Greif, Ct. between “examina (Sup. 1941). distinction tion” and “treatment” is made in Sampson N. J. 415 (1952). 8, 1952,
Dr. Rucker did not “treat” the workman on April the latter’s call at the plant following dispensary, complain- numb, “I had a little pain my : back ing my leg *7 “Q. left The workman himself so testified: Did my leg.” Dr. Rucker treat at that time? A. I what you don’t know call treatments. He at me and me Dr. looked to you Rucker testified that he “examined” the Policastro.” Dr. “sent” him workman and to “Dr. Policastro for diagnosis “felt it that is the extent of connection.” Tie only; my than It problem a more was out neurological orthopedic. * * *.” realm Dr. Policastro “examined” him. of my testified: The workman you Policastro, you any After saw Dr. did bave conversation “Q. respect anybody plant personnel to with treatment with at the office?
A. No. you you going get any Were told whether or not were Q. to They company? office, further treatment the A. in the told me bliss Markham. say? they give any did A. Q. What she She told me won’t me more treatments. you, thereafter, get any DidQ. further either Dr. dispensary? No, Rucker or Dr. at the A. sir. you your Yes, Q. Did seek medical treatment of A. sir. own? Eclipse you family Pope [the Dr. Q. did not send workman’s physician] No, ? A. sir. question that, they you They No about turned down? A. Q. flatly refused me. They flatly why you refused treatments and that is Q. went Pope? right. Dr. A. That is fact, you Pope went Q. Isn’t that a that for treatment you Eclipse Yes, down at because were turned treatment? A. sir.” the the time of limitation, of measured from The period until not accident, had not then It would expired. expire least, and “seven or very the December at the eight following at if of diathermic treatments testimony weeks” later the did invoke the be but the workman accepted; outset his there is no of nonaction. statute, explanation held “cases this type Division that of The Appellate whether the of con- pattern factor is total determining into be to lull resting duct would likely under his until the time for the of filing petition rights had and that as a elapsed”; consequence Act in the form of “medical taping petitioner’s furnished back and the diathermy therapy” 5, 1950, “and after the of December immediately mishap of time between rendering notwithstanding lapse 1952,” this treatment and the events the workman April, the examination of April “was entitled regard of medical treatment continuous course And, disclaimer of liability by employer.” absence of here is one of it was question jurisdiction, sug- though that this view is countenanced by oft-repeated gested that Act remedial Compensation “being “philosophy” pur- nature should be construed to effectuate beneficent intended legislature.” poses there is say brethren judgment, Affirming the visit “no justification differentiating admittedly from a series of medical consultations embracing *8 1951”; in and provided by company in “latter are not to the abstract that the visits be regarded to the course of conduct but in their propinquity previous circumstances,” and “treatment” is a “broad and surrounding a cure injury all taken effect of the steps term covering disease,” “examination and as well diagnosis or including of remedies.” application I this would suggest, principle
But reasoning ignores, “treatment” with of our earlier cases equating “compensation” limitation clause bar- particular interpretation from “last com- after two years payment action ring pensation,” and thus an undue of the enlargement statutory rule. more, An “examination” or without can- “diagnosis,” not deemed an “furnish,” be much less the undertaking of, medical “treatment” within the furnishing coverage Act. The Compensation jurisdictional terms are to be a reasonable construction given with the evident comporting societal legislative policy repose to avoid the mischief of undue in the delay Here, enforcement of the right. since; earlier treatments had ceased the limitation long had commenced period run, could be tolled only by “treatment,” further in itself compensation legislative sense. The workman was misled the conduct of the there is no matter employer; estoppel by pais.
“Medical and
treatment”
“what is
surgical
done
signify
aby
or
physician
type
recognized
surgeon
n diagnosing
ailment and
bodily
to alleviate or
seeking
cure
It
it.
includes the
done
things
patient
carry out
directions
for these ends
specific
given
physician.”
v. Aetna
Barkerding
Insurance
For Burling, Jacobs affirmance—Justices and Brennan—4. Yanderbilt, For reversal—Chief Justice and Justices Oliphant—3.
Heher