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Bisonic v. Halsey Packard Inc.

Decided: June 28, 1960.

ARTHUR BISONIC, PETITIONER-RESPONDENT,
v.
HALSEY PACKARD, INC., RESPONDENT-APPELLANT



Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d. Gaulkin, J.A.D. (dissenting in part).

Price

[62 NJSuper Page 367] Appellant seeks to reverse a judgment in the County Court affirming an award in favor of petitioner in the Workmen's Compensation Division. The case presents unusual features. The basic issue to be resolved is the propriety of temporary and permanent disability awards, compensating petitioner for a heart condition allegedly caused by the rigors of an operation for multiple herniae on February 15, 1957. Concededly, only one of the herniae, an inguinal hernia, had resulted from an accident on September 9, 1956 arising out of and in the course of petitioner's employment by appellant. Petitioner had earlier refused an offer of appellant at its expense to furnish a surgeon to perform an operation to repair the

work-connected hernia. He stated that he was "afraid" of an operation and in any event he would want his own surgeon to do it. In lieu thereof petitioner sought an informal hearing as the result of which hearing, held on January 10, 1957, he was awarded and paid 5% of total permanent disability. However, on February 15, 1957 he underwent the aforesaid multiple herniae operation by a doctor of his own selection. He filed his compensation claim petition June 5, 1957.

It was determined by both of the aforesaid tribunals that the accident and the resultant operative procedure contributed to the aggravation of pre-existing latent coronary disease justifying a disability compensation award therefor of 25% of total. There was no claim by petitioner nor is there any proof in the record that petitioner was left with any permanent disability following the hernia repair other than the aforesaid heart condition. An allowance for temporary disability covering a period of 26 weeks was also made and, in addition, appellant was directed to reimburse petitioner for certain hospital and doctor bills he had paid and to which reference is hereinafter made. Credit, against the permanent disability award, was given appellant for the amount of the previously paid award of 5% of total.

In opposing petitioner's claim, appellant contends that the heart condition resulted solely from arteriosclerotic changes, was unrelated to the operation and therefore noncompensable. The expert medical opinions revealed by the record are so uncommonly contradictory as to emphasize the importance of a detailed analysis of the disputed factual elements against which the opinions are respectively projected.

On September 9, 1956, petitioner, then 62 years of age, while working as a salesman for appellant in its showroom, attempted to push a car on the showroom floor so that it might be displayed to better advantage to a prospective purchaser. It was conceded that while so engaged petitioner

was stricken with a pain in the right groin and suffered a right inguinal hernia. During the early part of February 1957, petitioner's physical discomfort in the region of the inguinal hernia increased so markedly that on February 13, 1957 he was admitted to Orange Memorial Hospital and the aforesaid surgical operation was there performed by Dr. Charles H. Evans, who had operated on petitioner several years previously. Hospital records covering the hospital confinement from February 13 to February 20, 1957, as well as petitioner's prior and subsequent periods of hospitalization, were received in evidence at the formal hearing in the Division and played a prominent part in the proofs considered by the Deputy Director and the County Court.

Appellant did not challenge the fact that the operation for the inguinal hernia was necessary and work-connected, and it was undisputed that, on undertaking the operation, conditions requiring further and more extensive surgery were revealed. Dr. Evans described the operation as follows:

"There was a major inguinal hernia up near the inner inguinal ring. There were three or four hernias known as transversalis hernias. They are acquired hernias through the deep fascia under the major abdominal muscles that come down on each side. There was also an incisional hernia following an operation for gall bladder six or eight years before that."

The surgeon further testified that a routine inguinal hernia operation could be accomplished in "a half hour or three quarters of an hour" but that petitioner's multiple hernial operations required three hours. Petitioner contends and appellant denies that the strain of the protracted operation caused or aggravated a heart condition, hereinafter described, for which he was entitled to be compensated. The differences in the opinions held by the various medical witnesses as to the significance of symptoms and conditions manifested by petitioner during and following the aforesaid operation, as well as on prior and subsequent

periods of hospitalization, hereinafter described, bear directly on the issue to be resolved. Petitioner's doctors asserted, and medical witnesses for respondent denied, that petitioner's disabling heart condition was directly due to the effects of the operation. We focus our attention on the proofs revealed by the record.

Concededly petitioner had undergone prior surgery. In his youth he had suffered from spinal meningitis and typhoid fever and at 12 years of age had three eye operations. He had undergone a gall bladder operation in 1942 in New York and Dr. Evans had operated on him for the repair of an inguinal hernia and the resection of "left hydrocele sac" in 1946; on occasions before the February 1957 operation petitioner had complained of "eye fatigue; lack of energy; dyspnea and palpitations." Dr. Evans testified that on the hospital admission statement he had made note of the fact that the "patient has in the past showed some heart damage." That statement, as it appears in the hospital record, is qualified by the insertion of question marks. Dr. Evans further testified, as he had noted in the admission statement, that later electrocardiogram shows "that the heart is essentially normal," and he further stated that there had been eight or nine electrocardiograms taken over the years and that petitioner, "under tension," worried about his health. He emphasized that there was a "suggestion," but "not proven" of previous heart damage and added "* * * I was to check and look out for that. According to the record, in the past, he did have some type of heart malfunction."

During the course of the three-hour operation on February 15, 1957, petitioner suffered a marked lowering of the blood pressure from 130/80 to 90/60. Evidence of lung rales, which were noted on the first post-operative day, considered in connection with petitioner's testimony as to distress in the chest area and arms is the condition with reference to which the oppugnant medical opinions are projected. As hereinafter more specifically outlined, petitioner's

doctors ascribed the extensive drop in blood pressure during the operation and the post-operative presence of rales in the right chest as indicative of heart failure due to operational strain, while Dr. Evans felt that they were more logically related to the effects of the anesthesia and were frequently seen in connection with operative procedures and had no relation to heart failure. The hospital record on petitioner's discharge states that the patient had done "exceptionally well following radical repair for hernia * * *. At present * * * heart, lungs, kidneys * * * appeared to be functioning more or less normally." The doctor added that petitioner lived only "two doors away" from him and that he saw petitioner every few days after the latter went home; that he requested "letters from his other physicians, especially as to his so-called heart trouble"; that he considered the "patient's heart good before and after surgery"; that he "wouldn't have sent him home if he had an acute heart."

Dr. Evans had previously testified that during the period of hospitalization in February 1957 he had not felt that petitioner had experienced an "acute heart failure," but it had been "a question for years that he was not a perfectly healthy specimen" and that the witness had postponed the multiple hernial operation for "two years." He stated that he had ordered an electrocardiogram of petitioner prior to the February 1957 operation to make "fairly certain he had a surgically competent heart * * *." He testified that the drop in blood pressure described aforesaid might or might not indicate "some coronary complication"; he stated frankly, on cross-examination, that, although he had had many "experiences with a sudden drop in blood pressure" during operative procedures he did not consider himself as qualified as a "cardiologist or anesthesiologist" to assess the reasons therefor. He added, "We know there are many reasons and many causes." He ascribed evidence on the first post-operative day of rales in the "right chest" and petitioner's complaints, presently asserted, of "dyspnea

and cough" during his hospital confinement as "reasonably attributable to his operation or the anesthesia." He responded as follows to a question relating thereto:

"Q. Did the combination of a sudden drop in blood pressure, pain, rales in his chest, necessity for taking cough medicine in the hospital impose a strain or burden upon his cardiovascular system? A. It would in any case to some extent, sir."

Dr. Evans further testified that he had advised petitioner both before and after his operation that "he had to be away from work and stress and strain for three months after radical repair of his massive herniae." He stated that it was possible that he had recommended that petitioner consult a heart specialist.

On March 18, 1957 petitioner consulted Dr. Saul Lieb, a heart specialist who continued thereafter to treat petitioner. An electrocardiogram taken by Dr. Lieb was "essentially normal." Dr. Lieb testified that the reading was substantially similar to that taken by Dr. Albano at the request of Dr. Evans prior to the February 1957 operation. A fluoroscopic examination showed that the "left ventricle of the heart was moderately enlarged and that the aorta was thickened." The doctor testified that the history he received from petitioner included a statement that after the surgery in February 1957 he was "very short of breath and had severe substernal pain, also cough"; that he had to sleep on two pillows. He detailed the results of his physical examination of petitioner and his resultant diagnosis as follows:

"Physical examination showed he was sixty-eight inches in height; he weighed two hundred pounds; temperature 98.6 degrees; pulse 92 per minute; respiration 22 per minute; blood pressure 140 systolic /90 diastolic. A right rectus scar is tender and indurated on abdominal examination.

Examination of the lungs showed a few crackling rales over the left base. Clinical examination of the heart showed the second pulmonic sound to be louder than the second aortic sound; the rate is regular; grade ...


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