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Dicker v. Independent Biscuit Co.

Decided: April 18, 1946.

MILTON DICKER, PROSECUTOR,
v.
INDEPENDENT BISCUIT CO., INC., DEFENDANT



On certiorari.

For the prosecutor, Leo Rosenblum.

For the defendant, Walter X. Trumbull.

Before Justices Donges, Heher and Colie.

Heher

The opinion of the court was delivered by

HEHER, J. This case arises under the Workmen's Compensation Act. R.S. 34:15-7, et seq. Prosecutor is partially disabled as the result of a coronary occlusion suffered on October 26th, 1943; and the question for decision is whether the attack was idiopathic or traumatic in origin. The Compensation Bureau dismissed the petition for compensation; and the employee thereupon sued out this writ of certiorari. The seizure occurred beyond this state.

The Deputy Commissioner determined that the employee had not sustained the burden of proof; and we are of the same view.

These are the circumstances: The claimant was employed by defendant as a bookkeeper and office manager. On the day in question, he, his father, Julius, and his brother, Isidor, representing the defendant corporation, had a dinner conference with one Helfgodt and one Yohay at a restaurant on Sixth Avenue, in the City of New York, for the consideration of a proposal to merge defendant's business with like businesses of corporations represented by Helfgodt and Yohay, and of prices if the merger did not materialize. The claimant's dinner consisted of "soup, herring, black olives, an eclair and coffee," described by defendant's cardiologist as "an indigestible heavy meal," and by prosecutor's as a "heavy" or "sizable" meal. The subject-matter of the conference was discussed during the course of the dinner. The claimant testified that the discussion became "heated," although the conferees remained on the friendliest terms, and that sometime after he had finished dinner he "started to perspire, and then all of a sudden" he was stricken with pain in his chest and back. He was taken to his mother's home nearby, and thence to a hospital.

The Deputy Commissioner was in doubt as to whether there was a causal relationship between "the discussion and the heart attack;" and we, too, consider the evidence insufficient in this regard. The claimant's medical expert expressed the opinion that "emotional excitement" produced by the conference discussion was the cause of the occlusion. But the evidence is not convincing that there was, in fact, emotional

agitation in such degree as to have caused the heart stroke. The attack came not more than an hour after the discussion began; and the claimant, himself, said the conference "was strictly on a friendly basis," and that no ill feeling was engendered by the argument. At the time he attributed his illness to the food.

Each party introduced opinion evidence from a cardiologist. The claimant had long suffered from cardiac disease. There was general arteriosclerosis involving the coronary blood vessels, and electrocardiographic evidence of a myocardial infarction as a result of a prior coronary occlusion or thrombosis. It is admitted that, three to five weeks prior to the particular seizure, the claimant "had similar milder attacks that subsided after twenty minutes," and that he "had not been feeling well for weeks." This was a progressive disease; and an occlusion or thrombosis could result in the normal course of the disease without the stimulus of emotional excitation or the increased heart action and metabolism that ensues from "an unusually hearty and indigestible meal."

The claimant's cardiologic expert was not the attending physician. His conclusion of traumatic injury rests upon the premise of "emotional excitement," the existence of which in our view is not demonstrated by the proofs. As we have seen, the evidence is conclusive that the conferees were on friendly terms throughout; and it would be the merest speculation to hold that the discussion itself, even though carried on with vigor at times, was the inducing cause of the heart attack. The "indigestible" meal is a more likely hypothesis. But we think it much more likely that the stroke was the climax of the progressive coronary sclerosis, uninfluenced by the things done in the master's service. The proofs show that ...


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