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Bayer v. Frank P. Farrell Inc.

Decided: October 6, 1961.

MURRAY A. BAYER, PETITIONER-APPELLANT,
v.
FRANK P. FARRELL, INC., RESPONDENT-RESPONDENT



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

Price

In a workmen's compensation case petitioner seeks to reverse a judgment of the County Court, denying him compensation under R.S. 34:15-7 et seq. , and dismissing his petition. He had been awarded temporary and partial permanent disability compensation against respondent by the Workmen's Compensation Division on that tribunal's determination that he had suffered "an attack of cardiac insufficiency." Petitioner contends that the proofs justify a finding that he suffered "a coronary incident causally related to strain and effort arising out of and in the course of his employment" with respondent. The latter contends that the County Court, on appeal to it pursuant to R.R. 5:2-5, properly dismissed the claim of petitioner because (a) petitioner failed to "establish by a preponderance of believable evidence" that a heart attack, suffered by him at work, arose out of his employment, and (b) the "medical proof offered by the petitioner failed to establish by a preponderance of probability that any employment connected effort either contributed to or caused his heart attack."

This case, as do many of the compensation "heart" cases decided by this court and the Supreme Court, illustrates the necessity of recognizing the principle enunciated in the opinion of Mr. Justice Oliphant in Mergel v. New Jersey

Conveyors Corp. , 14 N.J. 609, 613 (1954), that "the decision in each case of this type must necessarily depend on its own particular facts." See, also, Pellegrino v. Monahan McCann Stone Co. , 61 N.J. Super. 561, 572 (App. Div. 1959), affirmed 33 N.J. 73 (1960). It is to be noted that decisions in numerous compensation "heart" cases in this court, following the principles stated by the Supreme Court in Ciuba v. Irvington Varnish & Insulator Co. , 27 N.J. 127 (1958), have rested solely on the evaluation of the proofs adduced and have reemphasized the necessity of adhering with fidelity to the mandate pronounced in Yeomans v. Jersey City , 27 N.J. 496, 511 (1958), that we "independently weigh the evidence and determine whether the claimant has sustained the burden of proof." Furthermore, mindful of the opportunity afforded the judge in compensation to observe the appearance and demeanor of the witnesses, we are to give due regard to his advantage in judging their credibility and give "full and respectful consideration of the views expressed, on both fact and law," by the Division and the County Court. Russo v. United States Trucking Corp. , 26 N.J. 430, 435 (1958).

In resolving the issues presented by this appeal it is also necessary to apply certain other pertinent principles enunciated by our courts. They are: (1) "The burden is on a petitioner to establish that he suffered an accident arising out of and in the course of the employment." Black v. Mahoney Troast Const. Co. , 65 N.J. Super. 397, 403 (App. Div. 1961), certification denied 34 N.J. 471 (1961); (2) petitioner bears the burden of proof to justify a compensation award and such award is not sustainable unless the evidence preponderates in favor of the "tendered hypotheses." Kream v. Public Service Coordinated Transport , 24 N.J. 432, 436 (1957). See also, Ricciardi v. Marcalus Mfg. Co. , 26 N.J. 445, 449 (1958); Augustin v. Bank Bldg. & Equipment Corp. , 41 N.J. Super. 187 (Cty. Ct. 1956), affirmed 44 N.J. Super. 242 (App. Div. 1957); (3) if "under the evidence the tendered hypotheses become

a rational inference based upon the preponderance of probabilities the burden of proof is sustained." Kream, supra , 24 N.J. , at p. 436; (4) in assaying the evidence and determining whether petitioner has borne the burden of proof "the test is probability rather than certainty." Gilligan v. International Paper Co. , 24 N.J. 230, 235 (1957); (5) "'Reasonable probability' is the standard of persuasion, that is to say, evidence in quality sufficient to generate belief that the tendered hypothesis is in all human likelihood the fact." Ciuba, supra , 27 N.J. , at p. 139; (6) "'By accident' is now deemed satisfied * * * 'either if the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant's duties,' and accordingly, 'if the strain of claimant's usual exertions causes collapse from heart weakness, back weakness, hernia and the like, the injury is held accidental.' Larson, Workmen's Compensation Law , ยงยง 38.10, 38.20 and 38.30." Ciuba, supra , at p. 139; (7) the "presumption subsists that injury from heart disease is the result of natural physiological causes, and the onus remains upon the petitioner to show by a preponderance of the probabilities that his employment was a contributing cause of the injury." Yeomans, supra , 27 N.J. , at p. 509; Ciuba, supra , 27 N.J. , at p. 138; (8) "An idiopathic collapse is not compensable simply because it occurred at the place of work during working hours." Gilligan v. International Paper Co., supra , 24 N.J. , at p. 235.

In his petition filed approximately three months after February 5, 1958, the date on which he suffered the heart attack on which his compensation claim is based, petitioner, then 52 years of age, asserted that he suffered an "injured heart" and "strained chest" by reason of "unusual work circumstances and conditions in trying to install pipe in outlet." He had been employed for approximately 35 years as a plumber, pipe fitter and steam fitter and had been in respondent's employ for about seven months prior to the aforesaid heart episode. As initially related by petitioner

on direct examination at the Division hearing, he was working for respondent on February 5, 1958 as a pipe fitter, "hooking up fin radiators" on the first floor of an office building under construction at Newark; his hours were from 8 A.M. to 12 noon and, following "a half hour for lunch," from 12:30 to 4:30. On the day in question, petitioner and another employee were "working on that floor." At the hearing before the judge in compensation petitioner gave the following further recital of the events upon which he based his claim:

"Q. Tell the Court what you were doing? A. Well, after I had come back from lunch, I went back to my work to hook up the radiators; and in doing so, the connection that was coming up from the cellar, I had to make my connection from the cellar up to the radiator with a piece of pipe.

Q. How high was that? What was the distance? A. The distance was about a piece of pipe coming up from the basement to the radiator, about 27, 28 inches, somewheres around there.

Well, while bending over to see where the outlet was downstairs for me to be able to catch my pipe, as I couldn't see it because it was dark down in the basement, and many a times I had to go down into the basement to straighten out the outlet to catch the piece of pipe on the floor above, to be able to hook up the radiator, that I had done throughout the day -- throughout the morning many a times, going down in this dark area to straighten out my outlets. But at this time while bending over to see where the outlet -- whether it was coming up straight for me to be able to catch my pipe on the floor above, I felt --

Q. What were you doing before you felt anything? Tell the court exactly what you had in your hands? A. A piece of pipe.

Q. Tell the Court what you were doing? A. I was hooking up the fin radiator. I was trying to hook up the radiator. I had a piece of pipe in my hands, and I couldn't see to catch the outlet downstairs. I had to go down to straighten out the outlet. Coming back upstairs, I tried to catch the pipe to hook it up; and by doing so, I felt ill. My partner saw me. I fell over forward, he grabbed me and he pulled me back, and at that time I was -- I couldn't see or do anything whatsoever."

Petitioner further stated that the pipe he was handling at the time of the episode was "27 or 28 inches in length," three-quarters of an inch in diameter and weighed two pounds; that he was kneeling in a small, confined area and

was sweating. He added: "I felt that the strain was too much for me at the time, of running around so much, and in this confined area where I didn't have too much room to work in, that it was a strain on my nerves throughout." He stated: "I had no spell except * * * at the moment * * * I was kneeling on my knees * * * trying to make that hookup, I felt the pressure, the sweat coming down from my body and losing my balance * * * I fell forward on my hands." He added: "I did not faint" and a co-worker "noticed the condition" and "picked me up."

Petitioner then related that the aforesaid co-worker helped him to a nearby construction shanty and from there he was taken to St. Michael's Hospital where he was confined for 17 days. While there he was under the care of Dr. Otto Brandman, then chief of service at that institution, and to whom reference is hereinafter made. After petitioner's discharge from the hospital he came under the care of his family physician, Dr. Benjamin Rosenberg, of Brooklyn, and so remained during the entire period of his convalescence. Petitioner received no medication after June 1958, and returned to work as a plumber the "latter part of August" of the same year. He has since continued working as a plumber and pipe fitter mainly on various construction jobs. In response to his counsel's interrogation, petitioner testified at the hearing in the Division on January 4, 1960 that he still had "headaches," had "a double vision at times," suffered "pain running down from the shoulders, * * * shortness of breath," requiring him to "rest for a few minutes until it passes away." He further testified that while under treatment by Dr. Rosenberg he was referred by the latter to Dr. Joseph Weinstein, a cardiologist of Brooklyn, who took electrocardiograms. On August 26, 1958 he was examined by Dr. Saul Lieb as a basis for the doctor's prospective appearance as a witness for petitioner at the Division hearing. Reference to Dr. Lieb's testimony is hereinafter made.

On cross-examination petitioner stated that over the aforesaid period of his employment by respondent he had been working as a "pipe fitter" for the "heating" and "ventilation" of the building, installing the "rough work" and later "hooking up" the radiators, in which task he was engaged on the day in question. Describing the latter work performed by him on the morning of February 5, he said:

"* * * When I was working at that particular time I was working on the first floor to hook-up the radiators and I had to go down in the basement to straighten out the line so as I could catch my riser for the hook-up of the radiator. Going down in that basement a number of times throughout the morning in the darkness and up and down the ladder and straightening out my fittings below so as I could catch it below for the hooking up of the radiator because I had to catch it from the floor above -- * * *."

In response to interrogation by respondent's counsel as to "how long after lunch" the heart episode occurred, petitioner testified:

"I had come back from lunch and started in to work on the radiators which I was doing at that particular time. While bending over for the hooking up in that spot which was so dark down below, looking down through the hole to see if my fitting is coming up to catch the piece of pipe for the hook-up, I fell over ...


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