The opinion of the court was delivered by CASE, J.
The appeal is from a judgment in the former Supreme Court, whose opinion is reported in 137 N.J.L. 376. The question to be determined is whether the petition for compensation under the Workmen's Compensation act was filed within the time prescribed by law.
The accident occurred October 2, 1943. The last medical service was rendered on November 22, 1943. The physician's bill was paid by the employer on March 7, 1944. The petition was filed March 1, 1946. Appellant argues that the two year period for filing petition began to run on November 22, 1943, the date of the last medical attendance and that, therefore, the petition was filed out of time. Respondent, on the contrary, contends for the view, held by the court below, that the filing
The petition alleged, on the oath of the claimant, that no compensation had been paid, that medical services were necessary, and that such services were requested of and were furnished by the employer.
R.S. 34:15-41 provides that claims for compensation shall be barred unless a petition is filed as prescribed by R.S. 34:15-51. The latter section provides that
"Every claimant for compensation under article 2 of this chapter (§ 34:15-7 et seq.) shall, unless a settlement is effected or a petition filed under the provisions of section 34:15-50 of this title, file a petition in duplicate with the secretary of the bureau in his office, at the state house, in Trenton, 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."
There was no agreement for compensation, no failure to make payment, and no payment of a part of the compensation unless the furnishing of the medical services or the payment for the same be considered such.
The reasoning of the respondent is that inasmuch as the payment of the doctor's bill was in discharge of the employer's statutory duty under R.S. 34:15-15 to "furnish to the injured workman such medical, surgical and other treatment * * * as shall be necessary * * *", therefore the payment of the doctor's bill was a payment of a part of the compensation. That conclusion is a non sequitur. The obligation of the statute is that the employer shall furnish the workman with medical treatment. When the employer has furnished the medical service, 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 be 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
It would be tedious and not helpfully informing to analyze all of the sections of the statute in their references to compensation and to the furnishing of and payment for medical services. R.S. 34:15-40 (d) by meticulously stating both compensation and medical services in immediate conjunction with each other conspicuously emphasizes that the one is not comprehensive
It is urged that the situation is saved for the claimant by R.S. 34:15-16, as amended by ch. 74, P.L. 1945, which provides that "compensation for all classes of injuries shall run consecutively, and not concurrently, except as provided in section 34:15-15 of this Title, as follows: First, medical and hospital services and medicines as provided in said section 34:15-15. * * *" and that where an employer desires to pay for or furnish medical or surgical treatment, drugs or appliances after the date when payments under sections 34:15-12 and 34:15-13 have terminated the employer may reserve the defense of jurisdictional limitations provided by 34:15-27, 34:15-34, 34:15-41 and 34:15-51 provided the reservation is approved by a deputy commissioner upon the condition there mentioned. We are of the opinion that the furnishing of medical treatment is in the nature of compensation and that it is the act of furnishing that attention which is given priority in the first part of section 16. We discover 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. R.S. 34:15-15, immediately preceding section 16 and therefore reasonably to be considered therewith in the sequence of thought and verbal expression, provides that the employer shall furnish medical and surgical treatment and that if he refuses or neglects to do so the employee may secure the treatment and "the employer shall be liable to pay therefor". We carry that terminology on to section 16 to give the sense that if the employer desires, after the passage of the times scheduled in sections 12 and 13, to furnish treatment to the employee or to pay for treatment which the employee has secured, he may pursue the indicated course. Under other interpretation the words "or furnish" become unnecessary and meaningless, and the expression "pay for" meets the full thought; because the employer must, of course, pay for the treatment which he procure as well as that which the employee,
Comparable decisions in the United States courts are not entirely in point for the reason that the federal statute — Longshoremen's and Harbor Workers' Compensation Act, Title 33, § 901 et seq., U.S.C.A. — differs in some respects from our state legislation. The section on definitions, § 902 (12) provides that "`compensation' means the money allowance payable to an employee or to his dependents * * * and includes funeral benefits provided herein" and does not specifically exclude medical benefits. However, certain sections of the act use the word "compensation" in a sense which includes medical benefits, as § 904 which requires the employer to "secure the payment to his employees of the compensation payable under sections 907, 908 and 909" (§ 907 is the section requiring the employer to furnish medical, surgical and other such attendance or, in the event of failure to furnish, to pay the workman for the latter's expenditures for the same), and § 906 (a) which provides (comparing with our "waiting period", R.S. 34:15-14 and 16) that "no compensation shall be allowed for the first seven days of the disability except the benefits provided for in section 907[**]". For whatever force the points of similarity may give to the present discussion it should be noted that the United States Supreme Court has held that the furnishing of medical aid is not the "payment of compensation" within the meaning of § 913 (a) which limits the filing of a claim to the period of one year after the last payment of compensation. Marshall v. Pletz, 317 U.S. 383, 63 S.Ct. 284, 87 L.Ed. 348 (1943). The opinion also indicates an approval of the deputy commissioner's theory that the employer's obligations to pay compensation and to render medical aid were independent.
The question posed at the beginning of this opinion is answered in the negative.
The judgment below will be reversed.
For affirmance: None.