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Jacobs v. Kaplan

Decided: June 16, 1959.

MARGARET D. JACOBS, PETITIONER-RESPONDENT,
v.
JACOB S. KAPLAN A/K/A JOSEPH KAPLAN AND DAVID KAPLAN, RESPONDENTS-APPELLANTS



Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Foley, J.A.D.

Foley

This is a "heart case" brought under the Workmen's Compensation Act. The petition was dismissed in the Division, the deputy director holding that petitioner's pre-existing heart disease was not "in any way accelerated or aggravated or worsened by any of the duties performed by the petitioner in her employment by the respondents." The County Court reached the opposite conclusion and, in granting compensation, determined that an inference of causal relationship between the work and the cardiac episode emerged from the proofs as the more probable hypothesis. It is from this judgment that appeal is taken.

There is no material dispute concerning the facts. Petitioner, 58 years of age, entered the employment of respondents on November 2, 1956 and continued in their service until January 28, 1957, when the event occurred which gave rise to this action. Previously she had been employed elsewhere as a cook.

The respondent dentists maintained offices consisting of a seven room suite on the second floor of a building designated as 87 Lafayette Street, Jersey City, N.J. Four of the rooms were occupied by respondents and three were used by petitioner as living quarters. Petitioner was hired to perform custodial duties such as cleaning the offices, mopping the stairway which ascended to the offices from the ground floor and, during the heating season, firing the boiler which was located in respondent's kitchen and provided heat for the entire floor. She was also assigned some additional duties of an entirely sedentary nature including

answering telephone calls, taking appointment slips and escorting patients to the waiting room. Plainly, her most laborious task was firing the boiler. From the commencement of her employment until the early part of January she was required to obtain a supply of coal from the basement once daily; and thereafter twice a day. Each trip involved filling two pails and a box. To do this she used a small short handled shovel. Petitioner estimated that when filled the pails each weighed five to seven pounds and contained "two shovels" of coal, while the box which held "over two pails of coal" weighed "in the neighborhood of twenty-five pounds." She said that she "had to shovel out high" because of the height of the boarding by which the bin was enclosed. The pails and box when filled were lifted to a dumbwaiter which was about forty inches above floor level and was operated manually. Petitioner testified, too, that she and "the man upstairs" had to "carry coal up two or three days" as a result of the breaking of the rope by which the dumbwaiter was manipulated. However, it does not appear when with relation to January 28th this took place and no mention of this detail is to be found in the hypothetical question which was put to petitioner's medical expert, Dr. Saul Lieb.

The occurrence of January 28, 1957 is described by petitioner thus:

"I had just got done bringing the coal up from the basement and at about 1:15 in the afternoon, after Dr. Kaplan had come in, I then started to mop the stairs and also went in and mopped the hall, and when I was about finished with the hall, I noticed then that I had a heart condition: My heart was going real fast and water was running off of me. It was gathering there awkwardly and falling.

I said to myself, 'I will sit down and rest a few minutes to see what happens.' And I didn't get any better. I did sit down for about fifteen minutes, but I still continued in the same condition. So then I went out in the hall and asked Dr. Kaplan if he would let me use the phone, as they disconnected the phone during the day in our apartment to have it in the office. And he said why did I want to use the phone. I said I would like to call my son, that I was sick. He said, 'Where are you sick at?' I said, 'I have some

trouble with my heart.' 'Why,' he said, 'I will connect the phone for you to call your son.'

He connected the phone for me to call Phil, and I called Phil and he came down. And likewise, he called the doctor for me."

Later that afternoon she was visited by Dr. Boylan, who incidentally did not appear as witness at the trial. What happened subsequently is of no consequence since no reference ...


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