STATE OF NEW JERSEY
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
 

RESERVED DECISION

CLAIM PETITION
C.P. 98-024061

ROBERT NUNEVILLE, Petitioner,
vs.
VIKING YACHT COMPANY, Respondent
 

BEFORE:

HONORABLE SHELLEY B. LASHMAN
Judge of Compensation

APPEARANCES:

FRANK J. RASO, ESQ.
By: PHILIP G. GEORGE, ESQ.
Attorney for the Petitioner

HOWARD W. CRUSEY, JR., ESQ.
By: CHRISTINE M. KERR, ESQ.
Attorney for the Respondent

* * *

ISSUE

Respondent's Motion for Dismissal involves a very narrow issue of law: whether the two year statute of limitations for filing an accidental injury claim petition is tolled until the last date of treatment by an employer for an admitted compensable accident; or the last date of payment for that medical treatment authorized by the employer.

FACTS

Petitioner, a mechanic, while walking down the steps onto a yacht, stepped on a carpet twisting his left ankle, sustaining a II-III-degree sprain and an avulsion fracture of the talus of the ankle.

The accident occurred on January 12, 1996. The last employer authorized medical treatment occurred on March 4, 1996. The petitioner returned to work on March 6, 1996. The last payment by the respondent employer for that authorized treatment was on July 23, 1996. The claim petition was filed on July 22, 1998, one day before the two years had elapsed from the last payment date on July 23, 1996.

CONCLUSION OF LAW

The statue of limitations for filing an accidental claim petition is N.J.S.A. 34:15-51. It reads, in pertinent part:

Every claimant for compensation . . . shall, unless a settlement is affected . . . file a petition . . . 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 with 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 . . . A payment or agreement to pay by the insurance carrier shall for the purpose of this section be deemed payment or agreement by the employer . . . .

 

 

The drafter of the language of the statute above appears to have used the words "payment" and "compensation" interchangeably.

Petitioner's brief relies on the word "payment" in the statute.

I. I find petitioner's reliance on Sheffield v. Schering Plough Corp., 146 N.J. 442 (1996), is misplaced. That is so because Sheffield is primarily an occupational back claim, not an accident claim. Sheffield did not file a claim for Workers' Compensation benefits until five and a half years after her occupational back disability rendered her incapable of work. The occupational statute of limitation is N.J.S.A. 34:15-34, which includes the identical language: . . . or in case of part of the compensation has been paid by such employer, then within two years after the last payment of compensation . . . ." However, Sheffield stands for the proposition that the statute is tolled when the employer has "lulled" the employee into delayed filing of the claim petition. In Sheffield, the employer's personnel department advised petitioner to file and receive payments under the employee's own health insurance, paid for by the employer, as a nonwork-related disability, with the employer having made the required co-payments.

Justice Stein held, in his 20-page decision in Sheffield:

. . . it is manifest that a cogent object of the provision that permits the filing of a claim within two years after the last payment of compensation is to prevent employers and their insurers from lulling the injured employee into a false assumption of security and consequential inaction and tardiness by means of voluntary assistance.

. . . the employee may well believe that he need not consult an attorney or take any legal action so long as the employer is voluntarily attempting to heal the injuries or otherwise voluntarily paying compensation. Mangieri v. Spring Tool Co., 68 N.J. Super. 211, 220 (Law Div. 1961).

Thus, "on the theory that the furnishing of any kind of benefit required by compensation law indicates an acceptance of liability and thus satisfies the policy of the Nlast paymentN clause, the furnishing of medical benefits is generally held to extend the time for filing a claim. 2B Arthur Larson, The Law of Workmen's Compensation 78.43(h), at 15-272.33 to 45(1986) citing cases. Any other result would open the door "to unscrupulous employers to lull injured employees into a sense of security until their remedy under the Workmen's Compensation Act has been lost to them by passage of time."

 

Still further:

. . . workmen, often uneducated and foreign speaking, cannot be required to differentiate between employee benefit and workmen's compensation programs administered by the same plant officials under the Act . . . . There seems to be no reason if a payment be made, which could have been required under the Act, to limit the period in which a petition may be filed by a judicial construction which defeats the interest of the worker. (Quoting Betsy Ross Ice Cream Co. v. Greif, 127 N.J.L. 323, 325 (Sup. Ct. 1941) . . . .

We have previously observed that because the Act is remedial in nature, "care should be taken by the Courts to guard against the employer lulling an employee into the belief he would be compensated either by the payment of compensation or the furnishing of medical attention or both.

 

The result we reached today is consistent with the purposes of the Act:

To shoulder on industry the expense incident to the hazards of industry: To lift from the public the burden to support those incapacitated by industry and to ultimately pass on to the consumers of the products of industry such expense.

 

Accordingly, I find as a matter of law that Sheffield is not in point in the case before me, because petitioner was not aware, prior to filing his claim petition, of the date of last payment to respondent's medical provider, for services previously rendered. I find no "lulling" whatsoever in the case sub judice.

II. Respondent's brief relies on a pulmonary occupational claim, De Asio v. Bayonne, 62 N.J. Super. 232 (App. Div. 1960) which held there was no "payment of compensation" tolling the statute of limitation where the employee had never requested medical treatment by the employer, received none from the employer, but was treated by the employee's own physicians who were paid from his own premiums on his own health insurance policy.

De Asio held:

. . . there is a distinction between the furnishing of medical treatment by the employer and the payment by the employer for medical treatment already furnished; it is the date of the last treatment, and not of the employer's payment therefore, that incepts the running of the two-year period. Oldfield v. New Jersey Realty Co., 1 N.J. 63 (1948).

 

Somewhat similarly to the case sub judice in Oldfield, the accident occurred October 2, 1943. The last medical treatment was November 22, 1943. The physician's bill was paid by the employer March 7, 1944. The claim petition was filed March 1, 1946, within two years after the last payment to the doctor. Oldfield held:

. . . the obligation of the statute is that the employer shall furnish the workman with medical treatment. When the employer has furnished the medical services he has performed his statutory duty in that respect. How or when he shall pay for the same is of no concern to the workman. It may that a physician is under continuing retainer by the employer and is paid at regularly recurring periods with no specific relation to the services performed and independently of whether or not during a given period any service is performed. If, as perhaps usually happens, the service is one for which the employer is obligated to make specific payment to the physician, there are many reasons, wholly unrelated to the workman or his claim, why such a payment may be delayed. Through oversight or careless business methods the physician may fail for a considerable period to send his bill to the employer, or, sending a bill, may inadvertently omit some item of service or expense and later bill the employer for the sum so omitted, or the death of the physician may intervene. The employer is liable to suit by the physician for a period of six years from the date of the service or disbursement; and even beyond the time when the physician can prosecute his claim by suit, the employer may, if he will, liquidate the same. Payment under such, or any circumstances will, if the respondent's contention is valid, start a two-year period for the filing of the petition even though otherwise the right to file be long since expired. We think the argument is not sound. The events or omissions which are to start the period of limitation running should, in reason, be within the workman's knowledge so that he may have notice of the same - - such as the happening of the accident, a failure by the employer to make payment to the workman, or some default in the employer's obligation under the statute to the workman of which the latter will ordinarily have knowledge. It is not reasonable to suppose that the fact of payment by the employer to the doctor is ordinarily known to the workman or to say that from time to time, he may of right inspect the books of either the employer or the doctor to learn thereof and so be guided in the filing of his petition. There is no connection in point of logic between a payment by the employer for medical services furnished by him to the workman and the time within which the workman may file his claim petition.

 

After a lengthy discussion of the history of the statute of limitation, and of statutory construction, Oldfield held:

. . . we discovered nothing therein to indicate that the payment for such services when furnished by the employer to the workman shall have relation to the limitation of time for filing a petition.

 

Petitioner's reply brief cites Earl v. Johnson & Johnson, 312 N.J. Super. 301 (App. Div. 1998) reversed since petitioner's reply brief by the Supreme Court at 158 N.J. 155 (1999). That is the case decided below by Judge Moncher, which was ultimately affirmed by Justice O'Hern. It is not on point at all. In Earl, the filing four years later in an occupational respiratory claim was approved because the petitioner was not aware, until pulmonary function tests, of the seriousness of her condition. Judge Moncher also held that the payment of medical benefits on Johnson & Johnson's health insurance plan, without more, tolled the statute of limitation. Justice O'Hern quotes Ciabattoni v. Birdsboro Street Foundry and Mach. Co., 386 PA 179, 125 A 2d 365, 367 (1956):

. . . reason that an occupational disease is distinguishable from an accident, because accident rises from a definite event; the time and place of which can be fixed while [an occupational disease] develops gradually over a long period of time.

Of interest, Justice O'Hern noted, in passing, that:

In many workplaces, workers feel pressured not to file claims for Workers' Compensation while they are still employed. The culture of the workplace discourages workers from filing claims because to do so is seen as an act of disloyalty to the employer. Despite statutes prohibiting discrimination against workers who bring claims, workers still fear that taking action means risking their jobs.

 

CONCLUSION

I have considered the statute of limitation is an affirmative defense, and that the respondent has the burden of proof. I have also considered that respondent has met its burden of proof, and that the language of Sheffield taken out of context of its decision and of the case law above, does not support petitioner's position.

Accordingly the Motion to Dismiss is granted, and the claim petition is dismissed with prejudice. Respondent's attorney shall submit an appropriate Judgment earliest practicable. There has been no testimony, so there is no stenographic fee.

____________________________________

Shelley B. Lashman
Judge of Compensation

August 9, 1999