For the respondent, Ward & Levinthal (Maurice Levinthal, of counsel).
For the prosecutor, Cox & Walburg (Arthur F. Mead, of counsel).
Before Justices Parker and Oliphant.
The opinion of the court was delivered by
OLIPHANT, J. This is a workmen's compensation case, R.S. 34:15-7, et seq. The appeal, by certiorari, is from a judgment of the Passaic County Court of Common Pleas, which judgment reversed a determination and rule for judgment of the Workmen's Compensation Bureau and awarded compensation to respondent. It therefore becomes our duty to appraise the evidence and determine the facts. Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533.
The question presented is whether the respondent has sustained the burden of proving that the coronary occlusion which resulted in decedent's death was the result of an accident arising out of and in the course of his employment.
We find the facts to be as follows: Joseph Lohndorf, a man fifty-nine years of age, died on August 27th, 1944, at 3:00 A.M., at his home. He had been employed by prosecutor for one and a half years as manager of its paint store in Paterson and, as such, he worked six days a week from 8:00 A.M. to about 7:00 P.M. He waited on customers and generally took care of the store. It had shelving on the side where merchandise was displayed, the heavier paint cans being on the floor and lower shelves, the lighter ones on the upper shelves, which were reached by using an eight foot ladder. The cans and containers ranged in weight from ten to one
hundred pounds and roofing material weighed from fifty-five to sixty-five pounds. Decedent had a part-time helper and a truck driver was also employed.
The claim petition sets forth an accident as having happened on August 23d, 1944, in the early afternoon. Decedent had a heart attack at that time while standing by a counter, doing nothing and following no unusual exertion. Another attack was experienced by him later that afternoon and again on the following day. On Friday afternoon, August 25th, decedent suffered another attack after moving some cans of paint from a low hand truck to the floor. When these various seizures took place decedent had shortness of breath and pain in his left shoulder. He would exclaim "I can't breathe." On the following day, Saturday, about 4:00 P.M., he had another attack concerning which there is no evidence of anything unusual occurring or of any particular exertion except that it was a busy day and he had been waiting on customers. He often complained of feeling very tired, and most of the attack occurred without evidence of prior effort or strain. After the attack on Saturday afternoon he kept on working until closing time about 7:30, when he in company with his helper went to a tavern next door to the store, where Lohndorf took some seltzer water after which he went on a bus to his home. He arrived there after 9:00 o'clock, and was pale and sick looking. He ate a meal after which he had bad pains in his chest and back. He rested on a couch, the pains continuing, and about 3:00 A.M. went to relieve himself at the sink and fell back dead. He had been having heart attacks from as early as July, 1944, and no claim is made that any of these were caused by an employment accident. The attacks prior to the last one were those of coronary insufficiency or angina pectoris while the fatal one was coronary artery occlusion with thrombosis. He had been afflicted with coronary sclerosis. No autopsy was performed.
Three medical witnesses appeared on behalf of the respondent. Dr. Cohen in response to a hypothetical question containing no facts of unusual occurrences, events or undue exertion except the one of lifting cans of merchandise from the hand ...