Pfahler v. Eclipse Pioneer Division of Bendix Aviation Corp.

Heher, J.

(dissenting). December 6, 1950 was the date of the pleaded industrial accident. The asserted back injury did not interrupt the continuity of the employment. The petition for compensation was not filed until February 24, 1954. “Medical treatment” in April 1952 is alleged as a “payment of compensation” by the defendant employer within the intendment of the statutory provision, R. S. 34:15-41; 34:15-51, that “in case a part of the compensation has been paid by the employer,” then the two-year limitation period shall run from the “last payment of compensation.”

“Medical treatment” is compensation within the statutory concept. Oldfield v. New Jersey Realty Co., 1 N. J. 63 (1948). But mere “examination” or “diagnosis” is not in this category. The employer is obliged, R. S. 34:15-15, to “furnish” to the injured workman “such medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the workman of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible”; and the obligation is *493enforceable as therein provided. Where the employer provides such “treatment” in fulfillment of the statutory duty, there is “payment” of compensation within the meaning of the statute, just as much so as the making of compensation for the ensuing disability or loss of physical function. Schwarz v. Federal Shipbuilding & Dry Dock Co., 16 N. J. 243 (1954); Betsy Ross Ice Cream Co. v. Greif, 127 N. J. L. 323 (Sup. Ct. 1941). The distinction between “examination” and “treatment” is made in Sampson v. Thornton, 8 N. J. 415 (1952).

Dr. Rucker did not “treat” the workman on April 8, 1952, following the latter’s call at the plant dispensary, complaining : “I had a little pain in my back and my leg was numb, my left leg.” The workman himself so testified: “Q. Did Dr. Rucker treat you at that time? A. I don’t know what you call treatments. He looked at me and sent me to Dr. Policastro.” Dr. Rucker testified that he “examined” the workman and “sent” him to “Dr. Policastro for diagnosis only; that is the extent of my connection.” Tie “felt it was a more neurological problem than orthopedic. It was out of my realm * * *.” Dr. Policastro “examined” him. The workman testified:

“Q. After you saw Dr. Policastro, did you bave any conversation with respect to treatment with anybody at the plant personnel office? A. No.
Q. Were you told whether or not you were going to get any further treatment by the company? A. They told me in the office, bliss Markham.
Q. What did she say? A. She told me they won’t give me any more medical treatments.
Q. Did you, thereafter, get any further treatments by either Dr. Rucker or Dr. Policastro, at the plant dispensary? A. No, sir.
Q. Did you seek medical treatment of your own? A. Yes, sir.
Q. Eclipse did not send you to Dr. Pope [the workman’s family physician] ? A. No, sir.
Q. No question about that, they turned you down? A. They flatly refused me.
Q. They flatly refused treatments and that is why you went to Dr. Pope? A. That is right.
Q. Isn’t that a fact, that you went to Dr. Pope for treatment because you were turned down at Eclipse for treatment? A. Yes, sir.”

*494The period of limitation, measured from the time of the accident, had not then expired. It would not expire until the following December at the very least, and “seven or eight weeks” later if the testimony of diathermic treatments at the outset be accepted; but the workman did not invoke the statute, and there is no explanation of his nonaction.

The Appellate Division held that in “cases of this type the determining factor is whether the total pattern of conduct would be likely to lull the petitioner into resting on his rights until the time for the filing of the petition under the Act had elapsed”; and that as a consequence of the “medical treatment in the form of taping of the petitioner’s back and the diathermy therapy” furnished by the employer immediately after the mishap of December 5, 1950, “and notwithstanding the lapse of time between the rendering of this treatment and the events of April, 1952,” the workman “was entitled to regard the examination of April 8, 1952, as part of a continuous course of medical treatment in the absence of any disclaimer of liability by the employer.” And, though the question here is one of jurisdiction, it was suggested that this view is countenanced by the oft-repeated “philosophy” that the Compensation Act “being remedial in nature should be construed to effectuate the beneficent purposes intended by the legislature.”

Affirming the judgment, my brethren say that there is “no justification for differentiating the visit in April 1952 from a series of medical consultations admittedly embracing treatments provided for by the company in 1950 and 1951”; that the “latter visits are not to be regarded in the abstract but in their propinquity to the previous course of conduct and surrounding circumstances,” and “treatment” is a “broad term covering all steps taken to effect a cure of the injury or disease,” including “examination and diagnosis as well as application of remedies.”

But this reasoning ignores, I would suggest, the principle of our earlier cases equating “treatment” with “compensation” in the interpretation of the particular limitation clause barring action after two years from the “last payment of com*495pensation,” and thus an undue enlargement of the statutory rule. An “examination” or “diagnosis,” without more, cannot be deemed an undertaking to “furnish,” much less the furnishing of, medical “treatment” within the coverage of the Compensation Act. The jurisdictional terms are to be given a reasonable construction comporting with the evident legislative societal policy of repose to avoid the mischief of undue delay in the enforcement of the right. Here, the earlier treatments had ceased long since; the limitation period had commenced to run, and could be tolled only by further “treatment,” in itself compensation in the legislative sense. The workman was not misled by the conduct of the employer; there is no estoppel by matter in pais.

“Medical and surgical treatment” signify “what is done by a physician of any recognized type or by a surgeon in ■diagnosing a bodily ailment and seeking to alleviate or cure it. It includes the things done by the patient to carry out specific directions given for these ends by a physician.” Barkerding v. Aetna Life Insurance Co., 82 F. 2d 358 (5 Cir. 1936).

I would reverse the judgment.

Mr. Chief Justice Yanderbilt and Mr. Justice Oliphant join in this opinion.

For affirmance—Justices Wachenpeld, Burling, Jacobs and Brennan—4.

For reversal—Chief Justice Yanderbilt, and Justices Heher and Oliphant—3.