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Dwyer v. Ford Motor Co.

Decided: January 22, 1962.


For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- Justice Haneman. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (concurring). Haneman, J. (dissenting). Weintraub, C.J., concurring in result.


This is a heart death workmen's compensation case. The Division of Workmen's Compensation denied an award; the County Court and the Appellate Division affirmed. We granted certification.

Certification was allowed primarily to review the principle under which benefits are payable in heart attack cases, and the nature of the proof required in such cases to make them compensable.

Ciuba v. Irvington Varnish & Insulator Co., 27 N.J. 127 (1958), did away with the need for proof that the heart attack was caused or contributed to by an unusual employment effort or strain. That rule was supplanted by the doctrine that if the attack is caused or precipitated or contributed to by the ordinary stress or strain of the employment, a compensable accident comes into being. Thus, when an employee is suffering from an acute, or passively progressive or quiescent, heart condition, and the ordinary routine exertion of his regular work is too much for the heart, irrespective of whether the effort acts alone, or in conjunction or contribution with the weakness induced by the disease, to precipitate or accelerate or aggravate the attack, the resulting disability or death is within the statutory coverage. There is no requirement that the work effort be excessive in the sense of being unusual or not ordinarily engaged in. It is enough that a usual strain associated with the work was of itself too much at that time because of the condition of the heart, or that such routine effort in combination with the diseased condition of the heart produced the collapse. Compensability arises whenever

the required exertion is too great for the man undertaking the work, whatever the degree of exertion or condition of his heart.

The reasoning process by which the facts in a particular case are evaluated may be further aided by certain inquiries. Did the disabling or fatal attack result alone from the inexorable march of the disease? Was it the end result of the degenerative process in connection with which the employment stress was simply a coincidental condition, unrelated in any material way? Has it been shown by evidence, opinion or otherwise, that the exertion attendant upon the duties of employment, no matter how slight or how strenuous, and no matter with what other factors, such as pre-existing disease or predisposition to attack, it may be combined, was sufficient to contribute toward the attack or its aggravation? In short, where the heart has deteriorated to the point that potentially any appreciable degree of exertion carries a danger of precipitating, or so acting upon the condition as to accelerate, a disabling or fatal attack, if the effort or strain, which in fact precipitates or contributes to the attack, occurs during the course of the employment and as an ordinary or usual incident of the work, the resulting disability or death is compensable. Benefits are not lost because the amount of the work stress was such that it might or could be duplicated in routine activity about the home or in customary movements or effort while there. See Treloar v. Falmouth Docks & Engineering Co., Ltd., A.C. 481 (1933); 26 B.W.C.C. 214, 222. Nor is compensation to be denied because of proof that even if the accident had not happened the workman would have become totally disabled or would have died within a relatively short time by reason of the progress of his disease. Woodbury v. Frank B. Arata Fruit Co., 64 Idaho 227, 130 P. 2 d 870 (Sup. Ct. 1942). As Dean Larson puts it:

"The general idea is that, even if the decedent would probably have died of cancer in any case, the employment is deemed for compensation

purposes the cause of death if, due to a blow hastening the cancer, the employee dies today instead of six months from now." 1 Workmen's Compensation Law, § 12.20, p. 175.

See also: Welch v. County of Essex, 6 N.J. Super. 422 (Cty. Ct. 1949), affirmed 6 N.J. Super. 184 (App. Div. 1950); Milne v. Atlantic Machine Tool Works, Inc., 137 N.J.L. 583 (Sup. Ct. 1948); Voorhees v. Schoonmaker, 86 N.J.L. 500 (Sup. Ct. 1914).

It does not follow from what we have written that a heart attack which occurs at work is, without more, compensable. The work connection as a precipitating, aggravating or accelerating factor must appear. The basic idea intended to be conveyed (and which we approve) is expressed in very simple terms in the English case of Clover, Clayton & Co., Ltd. v. Hughes (1910) A.C. 242, 3 B.W.C.C. 275, cited with approval in both Ciuba, supra, at page 135, and Hentz v. Janssen Dairy Corp., 122 N.J.L. 494, 496 (E. & A. 1939). There, Lord Loreburn expressed the test in this fashion:

"In other words, did he die from the disease alone or from the disease and employment taken together, looking at it broadly? Looking at it broadly, I say, and free from over nice conjectures: Was it the disease that did it or did the work he was doing help in any material degree?"

Naturally, the onus of establishing connection between a heart attack death and the work effort rests on the compensation claimant. The burden has been described in various ways but may be stated concisely in this fashion: Such claimant has the burden of showing by the preponderance of the believable evidence that the ordinary work effort or strain in reasonable probability contributed in some material degree to the precipitation, aggravation or acceleration of the existing heart disease and the death therefrom. In this context, the significance of "some material degree" cannot be stated with mathematical precision. It means an appreciable degree; a degree greater than de minimis; it

means that there was some employment exertion capable medically of helping the attack -- of furthering its progress. We appreciate the difficulty in formulating a precise legal rule. There has been much discussion and agitation by cardiologists for and against the adoption of minimum medical criteria for use by the expert witness in assessing the probability of causal connection between work effort and heart attacks. But no such uniformly accepted standards have been approved. See McNiece, Heart Disease and The Law (Prentice-Hall 1961) ch. 17, § 2(c), p. 118. And, of course, the courts cannot state in advance whether such criteria would transgress legal standards by which they must determine causality. Id. 119; & ch. 18, § 4, p. 132. Moreover, whatever the difficulty may be in the medical profession in reaching common ground as to the test to be applied, the Division of Workmen's Compensation and the judiciary cannot avoid their obligation to administer the compensation law. The Legislature has bestowed the right to monetary benefits for accidental injury arising out of and in the course of employment. And on the judicial scene existence of the right implies coexistence of effective means of enforcing it.

The rule outlined above is not just a catch phrase; it is not simply a formula to be mouthed in making an affirmative assertion of causal connection. The legal conclusion of cause and effect is ordinarily dependent upon evidence of medical causation advanced by physician witnesses in the form of opinion based upon the facts and circumstances attending the heart attack. But we repeat that the mere assertion of reasonably probable contributory work connection by a medical witness cannot justify an award. The facts of the situation under examination in their totality must demonstrate causality by the greater weight of the credible evidence. In this area the reasons for the assertion are more important than the assertion itself. Stanley Co. of America v. Hercules Powder Co., 29 N.J. Super. 545, 562 (App. Div. 1954); reversed on

other grounds 16 N.J. 295 (1954). Explanation of the physiological reactions of the diseased or ailing heart to the work strain in terms of sole or contributory cause and effect must generally be regarded as indispensable. The facts and circumstances surrounding the work effort and the heart attack, the medical opinion as to connection between the two, and the explanation of the connection from a medical viewpoint must coalesce in support of a finding by the greater weight of the evidence that the effort was at least contributorily responsible in some material way for the attack.

Some of the language running through the opinions of the various tribunals which have had this cause for consideration gives the impression that proof of a specific incident of work strain or effort coincidental with or immediately preceding the heart attack is regarded as an essential step in the establishment of causality. And the heart specialist whose testimony formed the basis for the denial of compensation said plainly that he would not regard a heart attack as resulting from employment unless there was "a stress or strain incident just prior to the onset of his initial symptom which is usually pain." Proof of such a specific incident is not required as a matter of law, although it cannot be doubted that evidence of work effort closely followed by well recognized symptoms, such as pain, shortness of breath, collapse, etc., points with more probative force to a reasonably probable relation between the two events than if they were separated by a substantial period of time. This is not to say, however, that mere lapse of time between work effort and heart attack compels a conclusion of lack of connection. See McNiece, supra, ch. 4, § 2(b), p. 14. Solution of the problem depends on the facts of the particular situation considered in the light of the medical opinion adduced for and against the thesis of causal relation. On this aspect of the problem an important consideration must be noted. A single instance of work effort is not an essential element in proving causality; a succession of such efforts

over the entire work day is sufficient when followed by the heart attack in such time and under such circumstances thereafter as to demonstrate to the degree of probability required that the totality of work effort contributed to the attack. The right to compensation exists whether a single employment strain or a succession of such strains proved in whole or in material part to be greater exertion than the ailing heart could withstand. The Appellate Division, in Joy v. Florence Pipe Foundry Co., 64 N.J. Super. 13, 23 (1960), correctly stated the rule to be:

"Thus, if a strain occurs during the hours of actual employment, but no resulting symptoms are produced until after working hours, the disability, whether in the form of a heart attack * * *, a perforation of an ulcer * * *, or a cerebral hemorrhage, may nonetheless be compensable."

Dean Larson, in his treatise on Workmen's Compensation Law, likewise clearly states the applicable view:

"* * * in Workmen's Compensation the controlling event is something done to, not by the employee, and since the real question is whether this something was an industrial accident, the origin of the accident is crucial, and the moment of manifestation should be immaterial." 1 Larson, supra, § 29.22, p. 449. (Emphasis Larson's)

To the author's statement we add only as a cautionary note that the "moment of manifestation" is immaterial so far as the legal principle is concerned; it is not immaterial in the sense of having evidential value in deciding the factual issue of causal relation. Attention may be given here, also, to Whittle v. E.B.B.W. Vale Steel, Iron & Coal Co., 2 All. E.R. 1221 (1936), 29 B.W.C.C. 179, 198, where Lord Justice Slesser, in considering the matter of time interval between work effort and death, said:

"That seems to me to be entirely a question of fact and of degree. I think if there had been a much longer interval that might have weighed with the learned county judge to say: 'The interval is so long that I do not think in those circumstances I am satisfied that

the strain caused the death.' But there can be no general principle that a man must die immediately he has received the strain; it is a question of fact to be decided on the evidence and the medical evidence."

To the extent that the language of Loew v. Union Beach, 56 N.J. Super. 93 (App. Div. 1959) and Jacobs v. Kaplan, 56 N.J. Super. 157 (App. Div. 1959) may be considered contrary to these views, it is disapproved.

References also appear in the opinions below to the need for proving an event or happening beyond the mere employment itself or for proving an effort greater than the stresses and strains of ordinary living. The import of such tests is somewhat obscure and deceptive. Does "beyond the mere employment" mean something greater than routine effort to which the employee has grown accustomed? Does it indicate a need to prove some employment strain greater than mere passive presence at the place of employment? Does the suggestion that proof must be adduced to show a work effort greater than the ordinary stress and strain of living merely signify a duty to show some employment effort greater than the exertion caused by breathing or moving one's arms, legs or body in the fashion they would move routinely when away from work? Whatever the precise connotation of those expressions, the rule governing compensability may be stated in this fashion: If the effort or strain, whether great or little, was an incident of the employee's work and either alone or in combination with disease played a material part in causing, contributing to or accelerating a heart attack, the attack is compensable.

Since it is not entirely clear whether a test of the proper dimensions was applied in the earlier studies of the case, we feel that justice demands a revaluation of the record in the light of our observations as to the controlling legal rule for determining compensability.

Decedent, Gerald E. Dwyer, age 41, six feet tall, weighing about 200 pounds, was married and the father of four dependent children at the time of his death on April 30, 1958.

He had been in the employ of respondent, Ford Motor Company, for seven years and engaged primarily in factory laboring work. Apparently he was a steady worker and enjoyed good health prior to May 1956.

Around the end of May 1956 he began to experience pain in the chest which spread to his left arm and neck. On June 11, according to his widow, the chest pain became severe, his left arm went "dead" and the hand became "numb and cold." The next day he was admitted to Christ Hospital, Jersey City, where he remained until June 30. The diagnosis on discharge, at which time he was "very much improved," was "arthritis (rheumatoid)" and "angina pectoris." These ailments were listed by the attending physician on the record in the "order of importance," and his final note as to the heart condition was "Patient had typical anginal pains which were promptly relieved with nitroglycerine. E.CGs were negative." It may be noted that these electro-cardiograms were produced and examined at the hearing in the Division by the specialists who testified for the parties. Dr. Saul Lieb, who appeared for petitioner, said they were suggestive of myocardial involvement and would corroborate a diagnosis of coronary disease and coronary insufficiency. Dr. Jerome G. Kaufman, who testified for respondent, did not specifically interpret them while on the stand but after looking at them he did say Dwyer was suffering from coronary sclerosis with insufficiency, known as angina pectoris.

After leaving the hospital, Dwyer remained at home under the care of a cardiologist for three weeks before returning to respondent's plant. His factory work was pursued regularly thereafter. On December 6, 1956, apparently after work, he called at the office of the family physician, Dr. Herman Kaplan, complaining of pain across his chest, radiating down his left arm. Electro-cardiograms were taken but they did not reveal any myocardial damage. The doctor said that if the electro-cardiograms taken in June 1956 at the Christ Hospital did show such damage, in his opinion the

signs of it had disappeared. However, he made a diagnosis of coronary insufficiency and prescribed vasodilator pills.

Dwyer continued to work until February 11, 1957, when Dr. Kaplan made a house visit in response to a call. After this, Dwyer stayed home until February 15. The record is unclear as to just what it was that kept him from employment. The sum of Dr. Kaplan's testimony seems to be that Dwyer was again complaining of chest pains (for which he ordered a continuance of the pills), but that the reason for staying home until February 15 was an upper respiratory infection.

In any event, on February 15, 1957, Dwyer returned to work and engaged constantly in his duties, without further attention by a doctor, for over 14 months until Sunday, April 27, 1958. Shortly before lunch on that day, according to his wife, he had severe pain in his chest and could hardly breathe; perspiration poured from him; there was severe pain in the left arm, and the hand was cold and numb. Mrs. Dwyer called Dr. Kaplan, who prescribed nitroglycerin pills which she obtained from a nearby drug store. These pills were taken at intervals for the remainder of the day. During the night Dwyer had difficulty sleeping and assumed a propped-up, partial sitting position in the bed. Dr. Kaplan came to the house early Monday morning, diagnosed coronary insufficiency and advised continuance of the pills. It is obvious from the testimony that Dwyer had improved considerably. He did not go to work on Monday (his workday began at 3:30 P.M.) but "just stayed at home." Mrs. Dwyer did not say he remained in bed that day and there is no testimony that the severe chest pain, breathing difficulty or left arm and hand difficulty continued that day. Nor does it appear that he slept other than in normal fashion on Monday night.

On Tuesday morning, although he looked pale and fatigued and showed the results of his attack, he felt well enough to want to go to work. The inference is fully justified that he considered he had sufficiently responded to

the medication, as he had on previous occasions, to warrant resuming the employment duties. Mrs. Dwyer called Dr. Kaplan, discussed the matter with him and, although she was not permitted to recite the conversation, it is beyond question that the doctor considered him sufficiently improved to return to work and sanctioned his return. In the doctor's testimony on direct examination, he said he approved the return to the factory but advised against "heavy lifting, heavy pushing, and things like that." On cross-examination, he conceded lack of any independent recollection as to just what advice he gave that morning but said that he had told Dwyer "all along" to do only light work. Nevertheless, with respect to April 29, apparently on the basis of his general knowledge of the case, he said: "Oh, yes, he could go to work."

Dwyer left for work in the afternoon, taking lunch and the nitroglycerin pills along. He drove his car to the plant, an hour's drive, picking up some fellow workers on the way. It must be regarded as unlikely that he could or would have driven for that distance if his left arm were painful and the hand numb or if he had the severe chest pain or difficulty in breathing which he had experienced on Sunday. In fact, one of the fellow workers who rode in the car made no reference in his testimony to any difficulty in operating the car, although he did describe Dwyer as pale, drawn and fatigued looking; and he saw him put a pill in his mouth during the trip.

One of Dwyer's usual duties was to "line up" a barrel filled with a chemical substance on a stand three or four feet above the floor. From that position the barrel when needed would be pushed on to a bonderizing machine to replace the barrel then on the machine, when its contents had been used up. Because of the weight and bulk of the barrel, it had to be lifted by the workman with a steel chain block and fall. The block and fall was attached to the barrel by hooks and the barrel then raised by hand. When raised, it was kept in the hanging position until

needed, then the chain of the block was loosened and the barrel pushed into place. The fellow employee, Hintze, spoken of above, saw Dwyer engage in that operation fairly early in the workday and asserted that when it was finished he looked white, strained, and started to puff, something that he had never done before. The witness added that in fact Dwyer had previously handled the movement with ease. The added portion of the answer was stricken as a voluntary comment. In our view, the striking was improper. It was responsive to the question, and assuming that the intended reason for the action was that the answer represented a conclusion which the witness had not been qualified to give, it must be kept in mind that all conclusions of laymen are not objectionable. There are certain matters of opinion which the ordinary person, by reason of everyday knowledge, experience and judgment is qualified to express. See VII Wigmore on Evidence (3 d ed. 1940), § 1974, p. 113; 1 Conrad, Modern Trial Evidence (1956), § 642, p. 531. A conclusion based on previous observation that a person handled with ease a physical operation or movement of the type involved here is clearly within the category.

Around 6:30 P.M. Hintze saw Dwyer remove an empty barrel from the bonderizing machine, slacken the chain of the block and fall and push a filled, hanging barrel into place. At this time he looked extra tired, worse than when he had arrived at work; he looked like a "sad sack"; on being asked if he needed water, he said yes. Shortly thereafter he moved a hand truck about 350 feet down an aisle, put a filled barrel on it and pushed it back to his working station. His movements were "a lot slower"; he walked slowly, although he was usually a fast walker. At 7:45, when the lunch break came, he did not eat his lunch or drink his coffee; he took a nitroglycerin pill; he looked as though he could not carry on his usual work.

Part of decedent's work entailed the making of hooks from metal wire. Each one weighed about three-quarters of a pound. When 50 or 60 pounds of them had been made,

they were put in boxes and carried by hand to the point where they were to be used. Dwyer was observed on two occasions that night carrying such boxes. Around 10:30 P.M. he rolled another barrel of chemicals 15 or 20 feet to the bonderizing machine. At this time he looked worse than he had previously.

The work period ended at midnight. Dwyer drove home, taking four fellow workers with him. They were dropped off at intervals along the way. He drove more slowly than usual, and was seen to take a pill during the trip. As he came into the house, it was obvious that he had severe pain. His wife said he was "in awful pain." She immediately called Dr. Kaplan and, being unable to reach him, telephoned the police who took him to the North Hudson Hospital.

On admission to the hospital he complained of severe precordial pains which "started about" three hours prior to admission. Electro-cardiograms were taken and disclosed acute coronary occlusion with posterior wall infarction. Death occurred at 3:20 A.M. April 30, 1958, 50 minutes after admission.

Two specialists in internal medicine testified on the subject of causal connection between the work effort on April 29 and the acute coronary occlusion; one for petitioner and one for respondent. Their testimony reveals agreement on a basic medical principle that stress or strain can be a contributory factor in the aggravation of an existing coronary insufficiency. (See also the testimony of respondent's physician in Loew v. Union Beach, supra, at p. 103.) Consequently, they approached the question of medical causation from common ground, i.e., effort or strain can contribute to an aggravation or acceleration of an existing coronary insufficiency. Thus, the crucial issue calling for their expert opinion became: Did employment strain so contribute? And they recognized that the answer to the question was one of medical fact, that is, it depended on the nature of the particular employment effort or strain to

which Dwyer was subjected and the physiological reactions which followed in its wake.

Dr. Saul Lieb, in answer to a hypothetical question based substantially on the facts outlined above, said that the cumulative effect of the work effort expended on April 29 aggravated or accelerated Dwyer's pre-existing heart condition and resulted in the coronary occlusion. In his opinion, the described work activity was "a major contributing factor" in producing the acute occlusion.

In discussing his conclusion, the doctor said that, starting on Sunday, April 27, and continuing on April 28, Dwyer had suffered a spontaneous worsening of his pre-existing coronary disease, more specifically an attack of acute coronary insufficiency, which continued. There was no indication that he was going to die of it if he had not gone to work on April 29. Such an attack carries with it a certain amount of hazard but, as Dwyer's own previous history indicated, a person can survive many attacks of acute coronary insufficiency. Respondent's physician, Dr. Kaufman, put it this way: some persons die from the first attack, some from the second, and some live "many years."

Dr. Lieb recognized that the acute attack had improved or subsided by the time Dwyer went to work on April 29. There was no indication that the chest pain or shortness of breath persisted as it had on the two previous days, although he showed the effects of the attack. That conclusion Dr. Lieb felt was supported by Dr. Kaplan's permission for Dwyer to return to work. The doctor agreed with Dr. Kaplan that no work requiring physical exertion should have been engaged in; in fact, he opined that Dwyer would have been "well advised" to have remained in bed that day. Such inactivity is advisable because repeated physical exertion puts a greater demand on the heart for blood, and if the patient is suffering from coronary insufficiency the greater demand, if it could not be accommodated, would result in increased coronary insufficiency and eventuate in an acute myocardial infarction. And in this case the repeated work

exertion during the day, as described to him, coupled with the evidence of puffing, physical slowing down as the work progressed, and the worsening of his appearance, provided a "clear indication" that Dwyer's cardiovascular condition kept deteriorating during the work interval, so that he became a "very sick man" by the time he went home. In sum, Dr. Lieb asserted that on the total history the cumulative effect of the repeated exertion (which was inadvisable for a person who had had previous attacks of this type of coronary insufficiency) was such as to increase the extent of his coronary insufficiency so as to be a major contributing factor in producing an acute myocardial infarction.

Dr. Jerome G. Kaufman took the contrary view. On the basis of the history given, he said Dwyer sustained a severe attack of coronary insufficiency on April 27, which persisted thereafter until his death on April 30 which was due to a myocardial infarction resulting from the prolonged attack of insufficiency. In his ...

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