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Fattore v. Police and Firemen''s Retirement System of New Jersey

Decided: October 17, 1963.


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


This appeal brings into issue the justification for a determination by the Police and Firemen's Retirement System of New Jersey denying the application of Mario D. Fattore, member of the Fire Department of the City of Camden, for an accidental disability retirement allowance based upon a heart attack sustained while performing his duties as fireman.

The right to such an allowance in favor of a member of the Retirement System (Fattore concededly was such a member) under the statute, N.J.S.A. 43:16A-7, depends, insofar as the issues here are concerned, upon whether the "natural and proximate cause of such disability was an accident met in the actual performance of duty * * * and that such member is mentally or physically incapacitated for performance of * * * duty * * * and that such incapacity is likely to be permanent." The administration of the act creating the Retirement System is committed to a board of trustees. N.J.S.A. 43:16A-13(2). Under that section, paragraph (12), the board of trustees designates a medical board composed of physicians which arranges for and passes upon all medical examinations called for in connection with an application for a disability retirement and reports thereon in writing to the

board of trustees its conclusions and recommendations on matters referred to it. "If required, other physicians may be employed to report on special cases." Ibid.

The applicant's proofs at the hearing before the board of trustees showed the following. On February 18, 1960 Fattore, a fireman of 13 years' standing, reported for duty at 8 A.M. at the premises of his engine company in Camden and was assigned with three other men to replace hose on a pumper apparatus. He had never before had a heart attack or heart trouble. Six men were formerly assigned to do this work. Only three men, including Fattore, were working at the pumper itself. The 1,500 to 2,000 feet of hose was customarily changed every month to prevent mildewing. Fattore's job was to sit in the vehicle and pull up and fold lengths of hose handed him by the other men. Each 50-foot section of the hose weighed about 75 pounds. Since three sections of hose were generally coupled together, Fattore was hauling lengths of 150 feet weighing 225 pounds. Fattore testified that he "was squatted in the body of the truck, and as the hose was handed to me, I had to lug and pull the hose to get it up there while I'm folding it." He stated that at about 10:30 A.M., while doing this work, he felt a pain in the upper part of his chest, which went across to the shoulder and down into the left arm. He was perspiring greatly and his face was flushed. He continued working for a while, but the pain became worse, "it was unbearable," and it was necessary for the other two men to remove him from the apparatus. He also testified that he was helped upstairs and remained in bed until the end of the working day.

One of the other men on the work assignment testified the job then being done by Fattore was "very strenuous * * *. You don't know how strenuous it is until you have to do it."

The next day, on February 19, 1960, Fattore visited his personal physician, Dr. Principato, who had him immediately hospitalized. He remained in the hospital until March 19, 1960. He returned to work (light duty) on February 16, 1961, but because slight exercise caused precordial distress he

stopped work on June 1, 1961 on the recommendation of Dr. Principato. Since that time Fattore has not been able to work. Dr. Principato issued a certificate May 11, 1961 diagnosing his condition as an acute myocardial infarction due to atherosclerotic heart disease and coronary arteriosclerosis.

On April 27, 1961 Fattore applied to the Retirement System for an accidental disability retirement allowance. The medical board, to whom the matter was referred, never examined the applicant, but on July 13, 1961 submitted the following report to the board of trustees through its member, Dr. David Eckstein:

"Dear Mr. Baggaley:

The problem presented here does not lend itself to a simple solution. The panel concerned itself with two points; (1) we feel that there was arteriosclerotic coronary disease on the basis of the report of Doctor Principato, (2) a great deal was made of the fact that four men were doing the work of six. We were of the unanimous opinion that the physical stress involved in this work was not more than that anticipated in a normal course of a fireman's routine. In other words, we do not feel that the effort of handling hose was sufficient to precipitate the heart insufficiency.

We believe that the man is totally disabled for any type of work in the fire-department, but we do not believe that this should be ...

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