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Marie Amend v. George P. Amend

Decided: May 24, 1950.

MARIE AMEND, PETITIONER-APPELLEE,
v.
GEORGE P. AMEND, TRADING AS AMEND ROOFING CO., RESPONDENT-APPELLANT



On Appeal from the Department of Labor and Industry, Workmen's Compensation Division.

Francis, J.c.c.

Francis

Plaintiff here sought compensation from defendant-employer under the provisions of the Workmen's Compensation Act on account of the death of her husband. The Workmen's Compensation Division of the Department of Labor and Industry awarded death benefits to her of $6,000 plus the statutory funeral allowance and counsel fees. The employer now appeals from this award.

The petition for compensation alleges that on December 1, 1944, the decedent, Frank T. Amend suffered compensable heart damage while in defendant's employ as the result of which he died on May 29, 1945. The only statement appearing in defendant's answer is, "Respondent joins issue in the allegation of the petition as to any causal relationship between claimant's death and any accident."

At the hearing plaintiff produced, under subpoena, the defendant, George Amend, who is the brother of the decedent. He testified that decedent had worked for him for about 25 years. On December 1, 1944, his brother came to him and told him that he "went over to the warehouse to start the truck, -- the starter wasn't working that morning. He cranked it and the thing backed up and the crank hit him in the chest." The injured man then "sat around a while" and said "I don't think I had better go out today." Then the defendant took him home where he remained for two or three weeks. He returned and worked about one day and never came back again.

Defendant notified his insurance carrier, Coal Operators Casualty Company, of the accident. He gave it a report, and to his knowledge the company conducted an investigation of the occurrence.

According to decedent's widow, defendant brought her husband home about noon on December 1, 1944. At this time he appeared sickly and "scary" and she put him to bed. Thereafter her husband received compensation payments of $380 for 19 weeks at $20 a week.

Plaintiff produced and marked in evidence Forms 1, 2 and 3 which were filed by the defendant insurance carrier with the Department of Labor.

Form 1 which was prepared on February 7, 1945, recited that the injured employee, Frank L. Amend, while "cranking motor of truck felt pain around heart"; that the "nature and extent of injury" was "heart strain" with recovery probable in "10 weeks." Paragraph 11 of the form also says: "If no compensation was or is to be paid the injured, state that fact below, and give reasons on reverse side." In the blank below this appears: "Compensation being paid."

Form 2 which was prepared on the same day and which was signed by decedent and the carrier, recited that medical aid was required, that the carrier would pay for such aid as required by law, that the probable date of recovery was 10 weeks and that the compensation rate was $20. Immediately above the carrier's signature appears the following statement:

"The undersigned affirms the correctness of the statements given and guarantees the paying of compensation as stated therein according to law, for temporary disability and for permanent injury, if any."

Form 3 which was prepared by the carrier on July 17, 1945, over six weeks after Amend's death, sets forth that temporary disability compensation was paid to him for 19 weeks at $20 weekly; that "claimant died," and that the injury resulted in death. Again over the carrier's signature appears the same notation as in Form 2, namely, that the correctness of statements is affirmed and that the carrier guarantees the payment of compensation according to law.

The record does not show when the payments of compensation began or when they ended with respect to the date of death. There were 24 weeks between the accident and May 29, 1945. Form 3 says the disability began December 24, 1944. If this date marked the inception of the payments there would be 20 weeks and 5 days between it and the date of death.

Plaintiff undertook to provide accurate proof on this subject by serving a subpoena duces tecum upon the carrier to require the production of all of its records in the case and

specifically requiring the production of a statement signed by Amend in his lifetime and the checks for the payments of the 19 weeks' compensation. Plaintiff's counsel asserted the subpoena was directed to T. Zimmer who signed Forms 1, 2 and 3 and that service was made upon one F. Williams, manager of the carrier's office in Newark. Apparently the carrier received the subpoena but defense counsel said that it had no T. Zimmer and that the person named was not served. In any event, the requested statement and checks were not produced.

The death certificate received in evidence gives anterior coronary occlusion as the cause of death.

No medical testimony was offered by the plaintiff to establish the existence of causal relation between any employment, unusual effort or strain and the fatal occlusion.

The record of the City Hospital discloses that Amend was admitted on April 9, 1945, suffering from a coronary occlusion. He was discharged as improved on May 5, 1945.

The first page of the record recites that the patient was unable to give information on his admission; the second page sets forth among other things that the patient claimed good health "until present cardiac condition" and the history sheet recites that the information contained therein came from "family."

At the opening of one of the hearings plaintiff made application on notice to join the carrier as a party defendant under R.S. 34:15-84. Decision was reserved but the motion was never decided.

In defense defendant produced two medical witnesses:

Doctor Herman Busch examined Amend on May 20, 1945. On this occasion he said a history was obtained to the effect that while cranking a car in the beginning of December, 1944, he suddenly experienced a sharp pain in his chest which lasted for about a half-hour. He continued to work for about three weeks when he collapsed. He sent for his doctor who made a diagnosis of coronary occlusion. He remained at home for a few weeks not completely confined to bed and again experienced

a similar attack with unconsciousness. Then he was confined to the City Hospital for about six weeks but on this date he was at home. In the doctor's opinion he was totally disabled with the prognosis poor, and suffering from marked myocardial degeneration due to "the diffused vascular and coronary sclerosis of long standing."

It was Doctor Busch's opinion on the basis of this history and the hospital records that there was no causal relation between the car cranking incident and the death. The doctor said that Amend did not have a coronary occlusion prior to December 1, 1944, but he did have coronary insufficiency of a great many years standing. Amend denied to him that he ever had angina or any prior coronary attacks. And the doctor said he did not know of any coronary attacks prior to December 1, 1944. He took "it from the amount of involvement that he didn't have it." The doctor conceded that effort will produce a coronary occlusion in a person who has a marked coronary sclerosis.

Defendant also produced Doctor Asher Yaguda who had never examined the decedent. A hypothetical question was propounded to him in which he was asked to assume that on December 1, 1944, while Amend was cranking

"the motor of a truck the thing backed up and the crank hit him in the chest. He experienced a sharp pain in the chest which lasted one-half hour. He continued working for about three weeks , when he was forced to stop working. He was then treated by his own doctor several times and on April 9, 1945, he got out of bed and collapsed in his room. He then became cyanotic and had marked dyspnea and perspired. At that time he was given a quarter-grain of morphine, and then taken by ambulance to the Newark City Hospital, where he was admitted on, April 9, 1945, at 1:20 A.M.

"On admission to the Newark City Hospital his temperature was 98 degrees, pulse 120 and respiratory rate 36. The white blood count was 52,200. At the City Hospital he gave ...


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