For the prosecutor, Charles J. Tyne (Edward A. Markley and Charles W. Broadhurst, of counsel).
For the defendant, Edwin Joseph O'Brien (Thomas J. Brett, of counsel).
Before Justices Parker, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The Workmen's Compensation Bureau found that prosecutor suffered a heart injury by an accident which arose out of and in the course of his employment with defendant, resulting in permanent disability to the extent of 50% of total, and made an award in accordance with R.S. 34:15-1, et seq. The employer appealed to the Union Court of Common Pleas; and there Judge McGrath ruled that the employee had not sustained the burden of proving a compensable accident, and directed a dismissal of the petition. We are of the same view.
It was incumbent upon prosecutor to adduce evidence in quality sufficient to bring the tendered hypothesis within the realm of probability. Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533; Jones v. Newark Terminal and Transportation Co., 128 Id. 190; affirmed, sub nom. Jones v.
Court of Common Pleas of Essex County, 129 Id. 58; Riker v. John Hancock Mutual Life Insurance Co., 129 Id. 508. It is requisite in these cases that the evidence be carefully scrutinized and assayed in the light of this principle; otherwise, disability consequent upon disease alone will ofttimes constitute the basis of an award of compensation.
Concededly, the claimant, who was 59 years of age, suffered a coronary thrombosis. This is a condition that ordinarily ensues from coronary sclerosis or other morbid state. At all events, the presumption is that it was due solely to disease; and the onus is on claimant to establish that the asserted accident was at least a contributory cause without which the occlusion would not have occurred. Our considered judgment is that he has failed in this regard.
The claimant was stricken while in the pursuit of his employment on November 8th, 1940, between 9:00 and 9:30 A.M. He reached the plant at 7:40 A.M., and commenced work at 8:00 A.M. He was in charge of the shipping and receiving department; and his work was largely supervisory and clerical, although on occasion he performed manual labor. He had two assistants, who did the bulk of the laborious work. The evidence is convincing that when claimant reached his accustomed station that morning, he complained of physical phenomena which, it is agreed, ordinarily attend the onset of a coronary thrombosis. These are what the lay mind regards as symptoms of indigestion.
Claimant testified that between 9:00 and 9:30 A.M., while in the process of unloading cases of merchandise from a house truck, he reached for "a very old" corrugated paper case, which "didn't have very much packing in it," and weighed with contents 62 pounds, and while "taking it down, it bent and came down and hit" him "in the chest." He continued: "I went over on that case and I stayed there and I hollered for my assistant." But this testimony is markedly inconsistent with his subsequent conduct and does not carry conviction when deliberated and evaluated in the light of all the circumstances.
Claimant said that he remained in this prostrate position for three or four minutes until his ...