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Swift & Co. v. Volkum

Decided: December 20, 1943.

SWIFT & COMPANY, PROSECUTOR,
v.
FRANK VON VOLKUM, RESPONDENT



On application for a writ of certiorari.

For the prosecutor, Edwards, Smith & Dawson (George Echelman, of counsel).

For the respondent, David Roskein (John A. Laird, of counsel).

Before Justices Parker, Heher and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This is a workmen's compensation case. The narrow issue requiring decision is whether a reasonably debatable question of fact or law is made to appear by the employer who seeks to review only the quantum of the award of 33-1/3% of total permanent disability which was awarded to the employee.

It is free from reasonable debate that respondent while working for the prosecutor on April 10th, 1940 (regulating the temperature of a tank on the roof of prosecutor's hog house) ran up and down two and a half flights of stairs several times and that as a result of the unusual effort and strain thus expended "precipitated" the heart disability ("coronary occlusion" or "coronary thrombosis") which he suffered. Thus prosecutor concedes, and correctly so, that respondent suffered a compensable accident. Bernstein Furniture Co. v. Kelly, 114 N.J.L. 500; 177 A. 354; affirmed, 115 N.J.L. 500; 180 A. 832; Hentz v. Janssen Dairy Corp., 122 N.J.L. 494; 6 A.2d 409.

It is also free from reasonable debate, although respondent had (unknown to himself) an arteriosclerotic condition of his heart, that prior to the date of the accident respondent did prosecutor's "millwright" and "maintenance" work. It was "pretty hard work." He was obliged to and did, among other things, "take care of the machinery and repair same." He also did the "pipe fitting" and a "little of the electrical work." Three months after the date of the accident, when he returned to work, respondent was unable to do the laborious work which he had been doing for the prosecutor. He was thereupon given a lighter type of work. He started as a watchman at the gate. After a few months, he was taken off that work and was set to washing dishes in prosecutor's restaurant. After a few weeks on that job, he was assigned to "sweep the floor" in the dressing room where "he could take things easy." Thereafter, he was given a six month leave of absence and subjected himself, about every two weeks, to a physical examination by prosecutor's physician. At the end of the six month period, he was told that his condition had not improved sufficiently "to return to his work" and that prosecutor "did not have any job light enough" for him to do.

The medical proofs for both parties are substantially in factual accord as to the cause of the accident. They differ only as to the quantum of the percentage of permanent disability suffered by respondent. The doctor for respondent fixed it at 35% of total while the doctor for prosecutor fixed

it at 15% of total, but made clear that respondent "should be advised not to undertake prolonged heavy exertion."

The deputy commissioner in the Bureau determined, in light of all the proofs, that one who is handicapped in life, as respondent here, by his loss of "efficiency," by the fact that he must be "guarded in his efforts," and by the fact that he must seek such employment as will not oblige him to "undertake prolonged effort or heavy exertion," is ...


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