For affirmance -- Chief Justice Weintraub and Justices Heher, Francis and Proctor. For reversal -- Justices Wachenfeld and Burling. The opinion of the court was delivered by Proctor, J. Burling, J. (dissenting). Mr. Justice Wachenfeld joins in this dissent.
This is an appeal by an employer from an award for increased disability in a workmen's compensation proceeding, which was affirmed by the Hudson County Court and the Appellate Division. The employer appeals as a matter of right because of a dissent filed in the latter court.
On October 3, 1952 the petitioner, 41 years of age, was employed by Jersey City as an ambulance driver for the Medical Center, a municipally-owned hospital. On that date, he helped to carry a heavy male stretcher patient, who had mortally wounded himself in his apartment, down a narrow, twisting, three-flight stairway. While attempting to negotiate the stairs and the turns on the stair landings with the heavily ladened stretcher, the petitioner was required to lift and pull it while in an awkward position, and while doing so started getting pains through the back and chest. Despite [27 NJ Page 502] the pain, petitioner continued to assist in carrying the stretcher and drove the patient to the hospital. After reporting to his superior, the petitioner complained of the pain and was sent to the emergency room "to be checked." He was examined the same day by a hospital interne, who sent the petitioner home after giving him "nitroglycerine pills." The following day he returned to the hospital and an electrocardiogram was taken under the supervision of Dr. Nathan Frank, a specialist in diseases of the heart and circulatory system. After a reading of the electrocardiogram, the following entry was made on the petitioner's record: "Rule out coronary occlusion, chronic hepatic disease," and petitioner was accordingly advised to enter the hospital. On October 6, 1952 petitioner was hospitalized. He complained to Dr. Frank that he had pain over the left chest, with pain running down his left arm. He remained in the hospital until October 22, 1952. During that period he was given a series of clinical tests, including two additional electrocardiograms. All of these tests were negative for heart disease. Dr. Frank's diagnosis was that the petitioner had sustained a strain of the upper back. After his discharge from the hospital, petitioner was examined by Dr. Frank at his private office on October 27, 1952 and on February 11, 1953. These examinations were a follow-up to petitioner's hospital admission, in the nature of a "check-up." No further tests were conducted on these visits and the only medication prescribed was "a mild nerve sedative." Following petitioner's release from the hospital on October 22, 1952, Dr. Frank advised him not to do any heavy work for a year or more and ordered that the petitioner be given only light duty at the hospital. Petitioner was hospitalized again between January 21 and January 31, 1953, and from April 13 to April 16, 1953. The ambulance surgeon's report on the January admission stated a provisional diagnosis of "Coronary." The petitioner on this occasion stated that the "pain was real terrific" and "shooting down the arm." The provisional diagnosis for the April admission was "severe back pain -- known cardiac -- chest pain -- cyanosis."
Following his discharge from the hospital in April 1953 petitioner continued to perform only light duty until early in February 1954, when he was assigned to work in "central supply." This assignment required that the petitioner perform "heavy work," which consisted of pushing a supply truck approximately eight feet long and four feet high. Petitioner was able to perform this work for only a day and a half, when his "back gave in." On February 4, 1954 petitioner was again hospitalized. Dr. Frank was called to examine him, but after stating "It is not your heart, it is your back this time," referred him to a Dr. Costello, who began to treat the petitioner for his back and for hemorrhoids. Dr. Costello told him that he could no longer do any heavy work. Petitioner left his employment by the hospital on February 4, 1954, due to his inability to perform the heavy work assigned to him just prior to that date. He later reported back for work, but was refused light duty. He has not been employed by the city since that time.
Petitioner filed his initial claim for workmen's compensation on April 30, 1954. His petition in that proceeding recited the history of the stairway incident of October 3, 1952 and stated that the petitioner injured his "back, chest, stomach and right arm." At the hearing in October 1954 petitioner testified that he "got pain through the back" and "at times I get the chest pains." He testified: "I can't do no heavy work. All I can do is light work * * * on account of the back"; that he didn't attempt to do any heavy work "because the doctor told me not to." A Dr. Marcus, who first examined the petitioner on April 26, 1954, testified that the petitioner's disability was the result of "residual effects of a sprain of the musculature of the left anterior chest and left upper abdomen" and "strain of the lower back involving the lumbosacral region" which was causally related to the 1952 accident. He also stated there "might be a medical disability which is probably cardiorespiratory in nature and which is unrelated." The city's medical witness made substantially the same findings.
The Deputy Director found that the petitioner had sustained an "orthopedic permanent disability causally related to the accidental injury" and that "it appears that the petitioner was suffering from preexisting conditions, which may or may not be considered or classified as conditions of permanent disability, and it further appears that the trauma resulted in orthopedic permanent disability superimposed upon the previous conditions." An award of 12 1/2% partial permanent disability was made.
In September 1955 the petitioner filed his present petition for increased disability arising out of the October 1952 incident. At the hearing in March 1956 the petitioner testified as to the manner in which he was injured in October 1952 and further testified that he had been hospitalized for a heart condition in November 1954, December 1954, July 1955, October 1955 and January 1956; that in November 1954 he had "pains through the chest and my back and all, and the pains running down the arm. I have that continuously at times and, at times, when that gets very bad, I just got to call a doctor in on it." He also testified that at the present time "I just lay home all the time with the heart up getting these pains into the chest and the pains running down into my left arm"; that he never had any trouble with his heart prior to October 3, 1952, and that his present doctor "told me I can't work no more." On cross-examination, he stated that he had tried to work since February 1954, but was turned down because his prospective employer "found out just what the score was on to it." The petitioner's only medical witness was Dr. Charles L. Cunniff, a specialist in internal medicine, a field which also includes "heart specialty." He first examined the petitioner in November 1954, when he was called in consultation by Dr. Costello to determine whether it would be feasible to perform a hemorrhoidectomy upon the petitioner in light of his heart condition. From that time on the petitioner became Dr. Cunniff's patient for the treatment of his cardiac condition. At the hearing Dr. Cunniff testified that when he examined the petitioner in November 1954 the petitioner's
heart was "slightly enlarged"; that he had "tachycardia," which means a rapid heart rate, and that "his heart sounds were noted as being only of fair quality at best." Dr. Cunniff took electrocardiograms in November 1954, July 1955, October 1955 and January 1956. These tests indicated "myocardial disease" and "an old myocardial infarction in the posterior wall of the heart." His conclusion was that the petitioner had "arteriosclerotic heart disease, with old myocardial infarction; myocardial fibrosis, and poor cardiac reserve." In response to a hypothetical question, which was supplemented to meet the appellant's objections, Dr. Cunniff stated, "It would seem probable" that there was a causal relationship between the petitioner's present condition and the incident which occurred on October 3, 1952. When asked by the Deputy Director, "Is it your opinion that there is a probable connection between his work and his heart condition?" Dr. Cunniff replied: "Yes, sir. That is my opinion." Dr. Cunniff further testified that he did not consider the petitioner able to work and that "he would have to be considered 100% disabled."
On cross-examination, Dr. Cunniff stated that the petitioner was apparently unable to do any type of work; that the petitioner had tried to go to work as a "watchman or something but he was unable to do that because there was some walking involved, which causes pain in his chest." He said that a heart condition could come about gradually but that "It is a well known fact that a person can have a severe heart condition and the cardiograms be negative originally and not show any changes for a number of days * * * even several weeks." He further testified that where a heart condition comes about by reason of a severe strain that it should manifest itself almost immediately. When asked how it would manifest itself he replied: "Well it would manifest itself in pain primarily. There may not be any other manifestation. That is the primary manifestation of any strain." He further stated that the old infarction appearing in the November 1954 electrocardiogram could be any age beyond a few months old. It was his opinion that the petitioner's
heart condition was caused by "lifting and stretching, lifting in an awkward position."
Dr. Frank appeared as a medical witness for the appellant. He stated that when he first examined the petitioner on October 7, 1952, the petitioner complained of "a typical pain, what we call precordial pain, pain along the -- over the -- left chest with pain down his left arm." On the question of causal relationship he testified:
"Doctor, do you feel that, in your opinion, or can you say with a reasonable medical certainty whether or not the accident complained of could have caused any heart condition? A. May I explain that? Can I, instead of answering that yes or no?
Q. Yes. A. I mean, I can't say it caused any heart condition, because I didn't find any heart condition. Can I put it that way?
But then could some such act bring about a heart condition? Yes, of course. But I didn't find any evidence to indicate that this man had heart disease at the time."
On cross-examination, he testified that the petitioner was hospitalized on October 6, 1952, "just to make sure I was completely satisfied that he did not have heart disease" and "to treat his musculature condition." He was of the opinion that if a physical effort is to induce a heart condition, "the patient should develop signs of cardiac insufficiency within a relatively short span, anywhere from seconds, to possibly a period of twenty-four hours." He stated that the "commonest symptom" of a heart condition is chest pain. He conceded that the "precordial pain" complained of by the petitioner was consistent with "heart trouble." He further stated, "We well know that an initial electrocardiogram may be negative. Even in occlusion, a coronary thrombosis, or even infarct, they are negative many times and, sometimes, as long as ten, fifteen, twenty days later an electrocardiogram may become positive after ...