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Fink v. City of Paterson

Decided: March 4, 1957.

ARLINE S. FINK, PETITIONER-RESPONDENT,
v.
CITY OF PATERSON, AMENDED TO PERMANENT VETERANS HOUSING AUTHORITY OF PATERSON, RESPONDENT-APPELLANT



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

Conford

The Passaic County Court concurred with the Division of Workmen's Compensation in concluding that Samuel R. Fink, petitioner's deceased husband, died as a result of an accident arising out of and in the course of his employment as manager of respondent's housing project. The immediate cause of death was a heart attack found to have been precipitated by an employment incident attended with considerable apprehension and tension on the part of the decedent. Respondent's appeal poses two points: (1) the factual conclusions as to emotional strain were not proven; (2) defects in the hypothetical questions addressed to two of petitioner's medical experts nullify their testimony.

Fink died November 26, 1954. For two and one-half years he had been employed at the respondent's 380-tenant

project and during that period there had been many complaints by the tenants. Mr. Bentlee, executive director of the project, and Fink's immediate superior, had been dissatisfied with Fink's performance of his duties for some time and "gave him the devil on occasions." A meeting was called by Mr. Croland, Housing Authority Commissioner, Bentlee's superior, for November 26, 1954, "to hear both sides of the story"; that is, he wanted to get "Mr. Fink's version of what should or should not have been done" and the position of "the people that actually do the work" under Fink's supervision. It was Croland's opinion that some of the work was not being done properly. Croland was a member of a six-man agency which had authority to discharge Fink. This was the first time a meeting had ever been called at which Croland was to hear complaints concerning Fink's performance of his duties.

Fink had sustained a heart attack in August 1953 and a cerebral embolism April 7, 1954. It is agreed that he was in an advanced stage of arteriosclerotic heart disease in November 1954, but he was apparently feeling well when he left home to go to work on the fatal November 26. The scheduled meeting took place. There were differences of opinion between Fink and the other employees as to whose fault was producing the conditions complained of. Although the session was not acrimonious or loud, Fink was unhappy and disturbed. Croland testified Fink was "too nervous even to talk to me." Croland sent the other employees out and continued his discussion with Fink alone because the latter was so nervous. At Croland's suggestion Fink walked off with him to inspect some of the subjects of complaint about the premises, but Fink still "wasn't just normal" but "a little nervous and jumpy," and "progressively getting nervous." Croland, noting his condition, suggested Fink go back to his office, and shortly thereafter he was found, unconscious. Within an hour he had expired. Two medical experts called by the petitioner, both specialists in internal medicine, gave it as their opinion that the emotional disturbance effected by the circumstances of the meeting were

the aggravating and probable precipitating causes of the fatal heart attack.

It is settled that where a workman's heart failure is caused or precipitated by an unusual strain or exertion beyond the mere employment itself, sustained while in the course of his employment, there is a compensable accident, and the strain need not be physical or laborious in character but may consist of "unusual emotional or nervous strain and anxiety." Snoden v. Watchung Borough , 29 N.J. Super. 41, 50 (App. Div. 1953), affirmed 15 N.J. 376 (1954); cf. Kream v. Public Service Coordinated Transport , 42 N.J. Super. 307 (App. Div. 1956), certification granted 23 N.J. 257. Respondent concedes the rule but urges that the testimony does not support a conclusion that the decedent was emotionally upset to any marked degree. We are unable to concur in the argument. The decedent was being called to account. The situation confronting him at the meeting was fraught with the possibility of dire consequences if he were found derelict in his duties. The natural capacity of the occasion for evoking unusual strain and anxiety is obvious and the objective manifestations thereof apparent in the testimony summarized. We certainly cannot say that the concurring findings of the Division and the County Court on the existence of unusual strain or anxiety are "so plainly unjustified by the evidence" that the interests of justice necessitate their nullification. Mahoney v. Nitroform Co., Inc. , 20 N.J. 499, 507 (1956).

Nor are we impressed with the contention that there is no convincing medical testimony to support the conclusion of causal relation between the stress, superinduced upon the pre-existing heart disease, and the fatal attack. Without detailing it, we are clear that it amply supported the findings of fact. Respondent's sole medical witness testified that "in order * * * for there to be causal relationship between employment and the death there must be some outstanding stress or strain incident and I failed to find it in the hypothetical question." It is not clear whether the witness was thereby offering an opinion of law or of medicine. If it was

his medical view that the facts in proof did not show an emotional episode of such degree as to have the probable capacity of producing in such a person as petitioner the fatal attack, the tribunals below were free to find to the contrary from the testimony of the petitioner's medical experts, which seems to us to accord with the probabilities which would be indicated by common experience. The immediacy of the attack in relation to the episode of stress is most persuasive.

Respondent urges that the responses of petitioner's medical experts to the hypothetical questions addressed to them are devoid of evidential value because the questions postulated two prior coronary occlusions, whereas the proof was that petitioner had experienced first "a coronary thrombosis with myocardial infarction and subsequently * * ...


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