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Loew v. Borough of Union Beach

Decided: May 12, 1959.

DOROTHY LOEW, PETITIONER-APPELLANT,
v.
BOROUGH OF UNION BEACH, RESPONDENT-RESPONDENT



Price, Gaulkin and Conford. The opinion of the court was delivered by Price, S.j.a.d.

Price

[56 NJSuper Page 95] By this appeal in a workmen's compensation case, petitioner Dorothy Loew, widow of decedent Harold Loew, challenges the judgment of the County Court affirming the determination of the Department of Labor,

Division of Workmen's Compensation, dismissing her dependency claim petition.

Pursuant to Russo v. United States Trucking Corp. , 26 N.J. 430, 435 (1958), and Ricciardi v. Marcalus Mfg. Co. , 26 N.J. 445, 448 (1958), we have analyzed the evidence in the case at bar "to determine the facts and evaluate them." In doing so we have given "due regard to the opportunity of the hearer of the evidence to judge of the credibility of the witnesses."

Decedent, 46 years of age, suffered a heart attack on June 11, 1957, from which he died on June 24, 1957. The basic question before the Division and the County Court and presented by this appeal is whether or not the fatal attack was work-connected.

Decedent had been employed as a laborer by respondent for over five years next preceding June 11, 1957. He worked eight hours a day, five and one-half days a week. His general duties were reading and installing water meters, repairing leaks in water-service lines which required him to make street excavations; cleaning street gutters; annually, with other municipal employees, transporting calcium chloride from the railroad station and storing it in the municipal garage and thereafter with others spreading the chloride on borough streets.

Meter reading was done quarter-annually and occupied about one month of decedent's time each quarter. The meters which he installed had a maximum weight of 35 pounds per meter. The repair of the water service lines required the use of a pick and shovel by decedent. He had to use the pick to penetrate the hard street surfaces and then dig to a depth of three feet to reach the pipe lines. This type of work was performed by decedent several times each year. The street cleaning work was performed bi-weekly and decedent's part in it would consume from one-half day to a full day. The work involved in storing and spreading calcium chloride entailed the transportation of several hundred bags of the material from the railroad station in Keyport to the

municipal garage in Union Beach, a distance of one mile. In 1957 a total of 700 bags of 100 pounds each were so transported. With the aid of a handtruck the bags were removed from a railroad car to a motor truck, then transported to the garage and there unloaded and piled. This work had been done by four men of whom decedent was one, and had occupied one day. It had been completed a few days before June 11. Seven trips were required to accomplish the transfer of the shipment of chloride. The evidence justifies the conclusion reached by the Deputy Director that this was heavier and harder work than that which decedent had been doing in the forenoon of June 11 and harder than the work which he was undertaking just before he became ill on that day, as hereinafter related.

The work of spreading the chloride on the streets commenced June 11 and took three days to complete. The record reveals that in that operation the chloride is loaded on a municipal truck, and as the work of spreading the material on the streets goes forward, the bags on the truck are lifted to a hopper thereon and by a spreader the material is applied to the street surfaces. On June 11 decedent arrived at the municipal water plant at 7:30 A.M., worked there during the forenoon, had lunch between 12 noon and 12:30 P.M. and then swept the floor of the building. In the afternoon he with others was assigned the task of loading a truck with calcium chloride preparatory to spreading the material on the streets. For that purpose, about 1 P.M. he went to the municipal garage, where the chloride had been stored as aforesaid.

Certain of decedent's co-workers testified that it was a hot day; the temperature was estimated by them to be 85 degrees to 90 degrees, or, as described by one of the witnesses, "in the 90's" and "sticky." Co-employees of decedent estimated that it was possibly 10 degrees warmer and was "stickier" inside than outside of the building when decedent arrived at about 1 P.M. on the day in question. However, climatological data introduced by respondent showed that on June 11, 1957 the

temperature readings at the two weather stations nearest to Union Beach, i.e. , at Long Branch and at Sandy Hook, were a minimum of 51 degrees and a maximum of 79 degrees at the former, and a minimum of 56 degrees and a maximum of 81 degrees at the latter.

The municipal garage was made of galvanized iron. It was approximately 80 feet long, 40 to 60 feet wide (reflecting divergent estimates by witnesses), and 30 feet high. There was a large opening in front of the building where doors, formerly rotted and not repaired, had once been located. There were holes in the roof large enough to admit rain. It had one window at the front. Testimony was presented that there was no "cross ventilation." However, the County Court found that photographs of the building received in evidence showed that the effect of the passage of time and the action of the elements had "so perforated the metal roofing and sides as to permit some passage of any existing breeze or movements of air if such existed." The Deputy Director, questioning the soundness of the lay evidence that it was "hotter and stickier" inside the building than outside, emphasized the location of the large open area where the doors had formerly been placed and the existence of "plenty of open spaces throughout the building."

Decedent, with other employees of defendant, commenced the work of loading the 100-pound bags from the stacked piles to the truck. Decedent had been in the garage only about 15 minutes before he became ill. The work in the garage had not been continuous. Part of the time the workmen, including decedent, had been standing and talking. It was customary for two men to join in lifting one bag at a time to the tailboard of the truck where they were handled for placement on the truck by a third employee. Following this practice, on June 11 decedent and a co-worker had, during the aforesaid 15 minutes, lifted two bags from the pile to the truck. After lifting the second bag decedent complained of feeling ill. The co-worker, Richard Tremley, who was on the truck receiving the bags, testified that Loew

then said: "Dick, I don't feel good." According to the same witness decedent said that "he had pain in his stomach." In response to an inquiry from Tremley as to the nature of his illness decedent pointed to his stomach. He perspired and "looked a little white." He went outdoors and sat on a bench in response to a suggestion from one of the workmen. In a few moments he was assisted to the water-works building approximately 100 feet from the garage. He again complained of "pains in his stomach" and perspired "something awful." An ambulance was called and he was removed to a hospital at about 2:30 P.M., where he was seen in the emergency room by Dr. Herbert W. Engel, a specialist in internal medicine and hematology, who had been licensed to practice in New Jersey in 1955. Dr. Engel had been called in consultation by a Dr. George Cowling, who did not testify in the cause. Decedent at the time he was first examined by Dr. Engel was "breathing heavily, quite pale, sweating, cold and clammy." His blood pressure had "dropped" and he was "complaining of pain in the left anterior chest." A tentative diagnosis of acute myocardial infarction was made. Emergency treatment was given, i.e. , oxygen, the institution of anti-coagulant therapy, sedation and analgesics. Dr. Engel continued as the attending physician until the date of death. The final diagnosis was "acute myocardial infarction due to coronary thrombosis, pulmonary embolus and congestive heart failure."

Following a recitation of the facts in hypothetical form, which included a reference to the aforesaid diagnosis made by him, Dr. Engel was asked the following question and gave the following answer as reflected in the record before us:

"Assuming those facts, would you have an opinion with reasonable medical certainty as to the causal relationship between the activity in which he was engaged in the lifting of the bags coupled with the weather; in addition, an opinion which you hold with reasonable medical certainty as to the causal relationship between his work and the weather and the diagnoses which you made? A. Well, I think there must be certainly a causal relationship because of the direct time relationship of the epigastric and substernal pain to the time

when the patient complained of pain, as I understand it -- and, of course, I wasn't here for the other testimony -- when he had lifted these two bags. * * * The man complained of pain at the time. We have on other occasions -- and certainly this is documented in the literature, that there is a relation in large numbers of cases to the occurrence of strain and coronary, the occurrence, especially after eating, of coronaries. The weather may have had some factor to do with it as well."

On cross-examination the record reveals the following further testimony given by Dr. Engel bearing on the issue as to whether decedent suffered an accident which was work-connected:

"Q. Do you have an opinion as to whether or not your patient had any circulatory disability prior to June 11, 1957? A. I had never seen the patient prior to June 11th, and, therefore, one cannot say ...


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