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Kream v. Public Service Coordinated Transport

Decided: November 2, 1956.


Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.


[42 NJSuper Page 308] This is another in the stream of "heart" cases in the workmen's compensation field involving the question as to whether the workman's heart attack, here fatal, resulted from an "unusual strain or exertion" arising out of his employment. Snoden v. Borough of Watchung , 29 N.J. Super. 41, 44, 45 (App. Div. 1953), affirmed 15 N.J. 376 (1954), and cases cited therein, commencing with the leading and still authoritative decision, Lohndorf v. Peper Bros. Paint Co. , 134 N.J.L. 156 (Sup. Ct. 1946), affirmed 135 N.J.L. 352 (E. & A. 1947); see also Mergel v. New Jersey Conveyors Corp. , 14 N.J. 609 (1954), wherein Mr. Justice Brennan, concurring in the result (14 N.J. , at page 614), synthesized the view of a minority of the Supreme Court that "if the injury occurred by reason of the strain at work, whatever the degree of the strain, there is an accident in the statutory sense and there is no occasion for an inquiry whether the strain was an event or happening beyond the mere employment itself." Cf. Lohndorf, supra (134 N.J.L. , at page 160). Of course, the views of the members of this court with respect to that difference of opinion are

irrelevant as we are an intermediate appellate tribunal, bound by the continued adherence by the Supreme Court to the Lohndorf doctrine. Jersey Central Power & Light Co. v. City of Asbury Park , 128 N.J.L. 141, 146 (Sup. Ct. 1942), affirmed 129 N.J.L. 253 (E. & A. 1942).

We are clear that the case before us does not represent a situation of a heart attack occurring because of an unusual strain or exertion, "beyond the mere employment itself," within the language and holdings in Lohndorf and later cases, and that the affirmance by the Essex County Court of an award in the Compensation Division in favor of the petitioner must therefore be reversed. See also Becker v. City of Union City , 17 N.J. Super. 217, 224 (App. Div. 1952).

The decedent, aged 50, was a bus driver in the employ of the respondent. On February 2, 1952, a Saturday, he left his home in apparently good health at 9:00 A.M. and began work at about 9:58 A.M. on his regular Newark bus route. When he reached the Military Park (Newark) terminus at between 11:00 A.M. and 11:30 A.M., he phoned the respondent's station master, Ulbrich, at 20th Street and 16th Avenue, said he was ill, that he "had been sweating and he had the chills," and that he wanted to be relieved at 19th Street and 14th Avenue. This is a regular relief point in respondent's bus operations and decedent had his car parked at that location. The decedent had started his route from there that morning. Ulbrich told him he would be relieved there, and decedent drove his bus to that point, a distance of perhaps two miles through the city.

When decedent reached 19th Street and 14th Avenue he was relieved by another driver. He looked ill but declined a suggestion that he be driven home, preferring to drive his own car. On his way home he lost consciousness, his car veered across a street out of control, and it came to a stop against a retaining wall. A few minutes later he expired. There is no indication in the record whatever that decedent had any intimation that he was in the throes of a coronary attack before he died.

An autopsy was performed on the body about two hours after death. The certification by the medical examiner indicates that the autopsy showed, among other things, "occlusive coronary arteriosclerosis." The "autopsy protocol" states, under item "15. Coronary Arteries": "* * * one area of complete occlusion in upper anterior descending branch. Another area of occlusion in a large branch of the circumflex near its origin. No thrombi." The "primary cause of death" is given as "coronary arteriosclerosis, severe, occlusive." There was no involvement of the heart muscle.

At the hearing in the Compensation Division the theory of petitioner's factual case was that the operation of the bus by the decedent from Military Park to the relief point had a causal relationship with his death, the effort aggravating an incipient condition of coronary insufficiency. For purposes of the ratio decidendi of this determination the details of the medical proof are not particularly significant. There is unanimity of opinion that decedent before the events of the day in question had a general condition of arteriosclerosis and that when he telephoned for relief he was in the early throes of a cardiovascular collapse. One expert for petitioner, Dr. Ritota, testified that any effort, even walking, was "an imposition" upon the decedent's heart in his then condition and driving the bus was a "contributing factor" to the death. Dr. Lieb testified for petitioner that the driving of the bus "aggravated the attack of coronary insufficiency which had already had its onset and contributed to and hastened the death that eventually happened."

Dr. York and Dr. Kaufman testified on behalf of respondent to the effect that there was no causal relationship between the driving of the bus and the death, although both admitted that the driving of the bus would not be medically indicated for a person undergoing the commencement of an attack of coronary insufficiency.

The Deputy Director in the Compensation Division found that the "accident" arose out of and in the course of the decedent's employment and made an award. He did not

consider at all the question as to whether there was shown an unusual strain or ...

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