On appeal from the Middlesex County Court.
McGeehan, Donges and Colie. The opinion of the court was delivered by Colie, J.A.D.
[2 NJSuper Page 63] This appeal brings up a judgment of the Middlesex County Court in a workmen's compensation case which affirmed an award of compensation to the plaintiff. Joseph Grassgreen was employed by the Ridgeley Sportswear Manufacturing Company as receiving and shipping clerk. Formerly he had been a garment cutter for 35 years. On October 1, 1946 he commenced work at 8 o'clock in the morning, at which time he felt well and was in good condition. His work consisted of sorting bundles of cloth, some weighing 50 pounds, others 150 pounds. On that day there was an accumulation of about 60 bundles as a result of two days' deliveries. The plaintiff's task was to take the bundles from the elevator shaft to a sorting table, a distance of about 50 feet. The lighter bundles he carried, the heavier he wheeled by a hand truck. After moving the bundles to the sorting table, he commenced lifting them from the floor to the table, a height of 38 to 40 inches. The seizure occurred when lifting the fifth bundle, weighing about 150 pounds. He could not get his breath, lay down on the table, rested and broke into a sweat. After 20 or 25 minutes, the pain grew worse and he reported to his boss that he was sick and going home. The following day on the advice of a Dr.
Gurshman, he was taken to the Perth Amboy General Hospital where he remained for four weeks until November 5th. Three weeks later he was readmitted and remained until December 6th. Since October 1, 1946 he has been unable to work, complains of weakness and inability to do much walking or standing, and has pains two or three times a week. He testified that he had been working as shipping clerk for three months prior to October 1st, that his routine job every day was carrying the bundles, sorting them and lifting them up to the table. On other occasions he had the task of sorting two days' deliveries on one day. There was no evidence in the case of an unusual strain or exertion.
Turning now to the medical testimony, Dr. Breslow, a general practitioner testified on behalf of the plaintiff that he saw the plaintiff on October 1, 1946 at which time he was in bed, had labored breathing, a crushing feeling in his chest and was ashen gray. Plaintiff told the doctor that he had been at work and felt a severe pain in his chest. The doctor treated him with morphine and stimulants for shock. The diagnosis was acute cardiac collapse. Dr. Gurshman, also a general practitioner, examined plaintiff on the same day. The history he received from the plaintiff was that he had been lifting heavy bundles off the floor to a table about 36 inches high and after lifting about 15 or 16 bundles, he felt a sharp pain in his chest, radiating down the shoulder and arms. The doctor's objective findings were that of a man in shock, pale, cold and with labored breathing. An electro-cardiogram was taken which showed an anterior miocardial infarction -- acute anterior coronary occlusion. Two days after admission to the hospital, the plaintiff had auricular fibrillation (a form of cardiac irregularity in which the individual fibers contract independently of each other and so rapidly that there is not complete systole or contraction of the auricle). This subsided within 48 hours. On November 18th the plaintiff had phlebitis (inflammation) of the left leg and secondary to infarction he had pulmonary infarction (infarction being the production of a wedge-shaped area produced by the obstruction of a terminal vessel). The doctor's opinion was that the employment was causally related [2 NJSuper Page 65] to the present condition, since it came on following the exertion or immediately thereafter. Dr. Bernstein, a cardiologist, examined the plaintiff for the first time on January 17, 1947, three and a half months after the alleged accident. In answer to a hypothetical question, the doctor gave it as his opinion that "there is a definite causal relationship between this man's employment on October 1, 1946 and his present condition." When asked whether he attributed the condition to a specific accident rather than to routine work, his answer was "Yes, I feel that routine work may cause cardiac fatigue and set up -- speed up the heart and set the stage for an incident such as this. Then the incident itself which may have been done many times before without ill effect, may involve a strain too great for the coronary circulation and the infarction ensues as it did in this case." The doctor further testified that "even assuming that this was routine work, he had been lifting bundles all morning and I still feel that there is causal relationship. I feel that although he had been doing routine work, the physiological mechanism of fatigue had set the stage and the final effort at the time of the peak of his fatigue was such that it set up a coronary insufficiency and the added incident of lifting one more bundle was enough to break the camel's back. That final effort produced sufficient coronary insufficiency to bring about the coronary infarction." The next medical witness on behalf of the plaintiff was a Dr. Goldberg, a neurologist. It is unnecessary to discuss his testimony. On behalf of the defendant, Dr. Kaufman, a specialist in the cardiovascular system gave it as his belief that there was no causal relationship between the employment and the incident of October 1, 1946 and the myocardial infarction, and said that the mere fact that he carried or sorted some bundles which presented no unusual specific strain would not make the employment a contributing factor. On cross-examination he qualified that somewhat by testifying that "If it is true that he lifted a 150-pound bundle and the pain occurred with the lifting, and the symptoms occurred immediately following that, my opinion would be different" and when asked what would be his opinion, then said that it was a competent contributing factor. The defendant produced Dr.
Blumberg, a neurologist and psychiatrist whose testimony bears no relation to the heart condition. The question for determination is whether or not the undisputed disability of the plaintiff is the result of personal injury caused by accident arising out of and in the course of the employment.
It is obvious that confusion has arisen as to the present state of the workmen's compensation law with reference to what constitutes injury by accident. The doubt arises from uncertainty as to the effect of the decision in Lohndorf v. Peper Bros. , 134 N.J.L. 156 (Sup. Ct. 1946); affirmed on the opinion of Mr. Justice Oliphant, 135 Id. 352 (E. & A. 1947). To grasp the effect of that decision, it must not only be read in light of the facts therein dealt with but also in light of the prior decisions in comparable cases. We proceed to discuss certain of these cases at the time of the Lohndorf decision.
Bernstein Furniture Co. v. Kelly , 114 N.J.L. 500 (Sup. Ct. 1935); affirmed on the opinion of Mr. Justice Perskie with one minor correction irrelevant to the present discussion, 115 Id. 500 (E. & A. 1935) affirmed an award in a case in which the decedent died immediately after he and a fellow-worker had carried a 250 pound piece of furniture up three flights of stairs on a hot day. The court said: "The heat, the weight of the furniture, the difficulty in carrying the furniture up the stairs, justify the conclusion that it was an unusual exertion with the fatal resultant consequences already pointed out." Three years later in Hentz v. Janssen Dairy Corp. , 122 N.J.L. 494 (E. & A. 1938) the court reversed a judgment of the Supreme Court denying compensation in a case of coronary thrombosis wherein the Supreme Court said there was "nothing unusual about the work, or about the conditions, or about what he was doing when and before he felt a pain in his side" and held that "no case of an accident arising out of and in the course of the employment was shown." The Court of Errors and Appeals however said "In this case there is no doubt that the deceased suffered an accidental strain of the heart in the course of his employment, and that the strain causing the injury resulted from the employment which happened to be unusually hard on the day in question." In Bernstein Furniture Co. v. Kelly, supra , and
Hentz v. Janssen Dairy, supra , the decisions turned upon the respective findings of "unusual exertion" in the former and the "unusually hard" employment in the latter. The latter finding is the ratio decidendi of Hentz v. Janssen Dairy, supra and therefore the quoted language of Lord Loreburn from Clover, Clayton & Co. v. Hughes , 3 B.W.C.C. 284 that "an accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health" is inapposite.
In Molnar v. American Smelting & Refining Co. , 127 N.J.L. 118 (Sup. Ct. 1941) the court said: "According to one of the two witnesses of the event the wheel became caught in an irregularity in the flooring which caused Molnar to exert unusual force in extricating it; the credibility of that testimony is attacked and we do not rely upon it. * * * As for an accident in the sense used in the earlier days, there was none; but it appears to be the effect of our more recent decisions that where the performance of manual labor entails a strain upon the heart without which death would not have occurred but in consequence of which, combined with causes disassociated with the employment, death does occur the experience constitutes an accident within the meaning of the Employers' Liability Act, and that when the contributory strain arises out of and in the course of the employment the accident likewise so arises." The opinion is noteworthy because it appears to be the first definite holding in an appellate court that a heart attack brought on by the normal physical exertion attendant upon the employment and the absence of any unusual strain or occurrence constitutes an accident arising out of and in the course of the employment. The Court of Errors and Appeals affirmed (128 N.J.L. 11) saying: "The proofs do show that the workman employed by the appellant died of an ...