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Baginsky v. American Smelting & Refining Co.

Decided: October 25, 1963.


On appeal from the Division of Workmen's Compensation, New Jersey Department of Labor and Industry.

Molineux, J.c.c.


This is an appeal from a compensation award allowed a petitioner by reason of the death of her husband from a heart attack, and presents for determination in a somewhat different form the issue involved in Dwyer v. Ford Motor Co. , 36 N.J. 487 (1962).

Petitioner's decedent first went to work for respondent on January 16, 1939, and continued such employment until February 19, 1960, the day prior to his death.

His work record, commencing with 1956, was introduced into evidence, disclosing continuous employment except as follows: 1956, three weeks' vacation; 1957, one day reported off; 1958, three weeks' vacation, six days reported off (not consecutive); 1959, did not work from August 20 to December 10 because of strike.

Decedent's job consisted of operating a crane. To reach the crane decedent was required to walk about half a mile from

the entrance gate of respondent's plant and to make the return trip on completion of the day's work. Location of the crane was at an elevation of 7.13 feet, and the elevation of the gatehouse between 29.45 feet and 33.27 feet, so that to reach his place of work, decedent was required to descend a distance of from 22.32 to 26.14 feet and to ascend the same distance at night. As heretofore stated, the change in grade was effected over a distance of about half a mile. There were at least three ways to transverse this distance, some more arduous than others. The testimony is silent as to which was actually used by decedent.

The crane operated by decedent was mounted on a railroad car. To reach the cab it was required that decedent ascend five steps (including the floor of the cab), so arranged as to require a perpendicular ascent. The floor of the cab was approximately seven feet above the ground. The cab was glass-enclosed but the windows were open or shut as the weather might require. To operate the crane there was a series of hand levers and foot pedals. As to the number of such levers and pedals actually used there is some dispute, but it is unquestioned that at least five levers and two pedals were used. It is said by respondent that the operation of the crane required no more physical effort than that required to operate an automobile with a mechanical shift and mechanical hand brakes. The evidence offered by petitioner suggests the need of more strenuous effort.

In addition to working for respondent, decedent drove an oil delivery truck. This work ceased in 1957.

Petitioner's decedent was treated from time to time by Dr. Matthew F. Urbanski, plant physician of respondent. The plant health records and Dr. Urbanski's records indicate the gradual development of a condition of heart failure. On April 8, 9, 11, 12 and 16, 1954, decedent suffered from nosebleeds due to hypertension. On June 18, 1954 he was given an anti-hypertensive medication. On February 13, 1955 Dr. Urbanski examined him and noted that decedent suffered from hypertension. Similar findings appear on Dr. Urbanski's

records as of June 12, 1955 and July 1, 1957. On October 30, 1957 decedent suffered from a congested chest, chills and fever. On December 12, 1957 he suffered from excessive gas, a bad taste in his mouth, and he complained of not sleeping well. Dr. Urbanski's records as of January 27, 1958, February 20, 1958 and March 27, 1958, indicate that decedent suffered from hypertension.

In the early part of 1958 decedent developed a swelling of the leg, shortness of breath, a gurgling sound on breathing, an inability to sleep, and an overall feeling of tiredness. On August 4, 1958 decedent suffered from edema of the ankles and rales were noted in the chest. Because of these conditions an X-ray was taken of decedent on August 12, 1958 at Roosevelt Hospital. The X-ray report contains the following notation:

"Haziness at the inner zones of both lungs, more on the right side, probably due to pulmonary emphysema. The heart is markedly enlarged to the right and left and globular in shape. The upper mediastimum is widened. Impression -- cardiac enlargement with decompensation. Pulmonary congestion. Recommendation: hospitalization (preferably in a general hospital)."

In spite of the recommendation for hospitalization, decedent continued to work. On September 19, 1958 he was given an anti-hypertensive tablet. On September 29, 1958 his legs swelled and his blood pressure was high. On January 12, January 26, March 13 and June 8, 1959 he was given more anti-hypertensive tablets. Dr. Urbanski reported hypertension as of June 12, 1959; cirrhosis of the liver and hypertension as of January 6, 1959; hypertension as of March 13, 1959; hypertension, decompensation and "cardiovascular migraine" as of August 18, August 26, August 28, September 1, September 8 and September 14, 1959. On November 9 and December 1, 1959, and on January 25, 1960, he found the same. Decedent was on medication for the condition thus found by the doctor. On February 20, 1960 decedent died of a cardiac attack, details of which are hereinafter more fully discussed.

Petitioner testified as to the condition suffered by her husband. Sometime during 1958 he ceased walking to work, as had been his custom, and either drove or was driven to and from work because of his impaired physical condition. While petitioner testified as to these circumstances, she was unable to pinpoint any particular day on which decedent exhibited the symptoms as outlined.

She further testified that on one occasion in the latter part of January 1960 he left for work early but returned soon thereafter, complaining of shortness of breath. He directed his wife to call respondent and report that he was ill. Petitioner testified that respondent's representative directed her to advise decedent that he would have to appear for work the next day. It is said that decedent then directed his wife to call again and request a three-week vacation, that said request was refused, and that petitioner then called someone higher in respondent's echelon, whereupon he was granted a single week's vacation. Company records show that decedent was on vacation during the week of January 25, 1960.

Respondent's recitation of this incident is to the effect that a call was received requesting a week's vacation, that this request was granted after a second call to respondent, and that no mention was made of sickness.

Petitioner testified that decedent's condition grew worse subsequent to the week of vacation.

It is important to point out that, with the exception of the testimony of one witness, the record does not indicate that at any time while decedent was actually at work his condition was such that he could not perform his duties, nor that his work adversely affected his condition, nor were there any specific instances of any need to quit work temporarily, nor even any complaints of pain or discomfort. At all times his work seems to have been satisfactorily performed. The single witness who suggests anything to the contrary is Joseph Baginsky, decedent's son, who testified that he worked for respondent during January 1960, approximately two weeks prior to his father's death, on the night shift following the shift on

which his father worked. He testified that he saw his father at or near the gatehouse on the latter's way home, and his father then appeared to be breathing heavily. He stayed with his father until his father felt able to drive off in his own car, and the witness then went on to his work.

Contrariwise, there is considerable testimony offered by respondent, consisting of testimony of decedent's fellow workers to the effect that he worked normally at all times, including the day prior to his death.

It should be here stated that the judge in compensation rejected the evidence of decedent's fellow workers to the effect that there was no incident on the last day of decedent's employment. The judge in compensation was impressed by the "testimony of petitioner and her son as more in line with the actualities as presented by the proofs." So far as the last day of decedent's employment is concerned, there is no testimony of any untoward incident or any manifestation of any pain or suffering or inability to work. The judge in compensation also relied upon the medical testimony of petitioner to the effect that the testimony of decedent's fellow workers "doesn't make any sense," such testimony being completely rejected.

The burden of proof being upon petitioner, the finding of the court below is rejected. It is found as a fact that on the last day of employment there was no incident or moment of manifestation which in any way can be related to decedent's condition.

Decedent quit work on February 19, 1960, punching out at 10:45 P.M. As to his activities from that time to his death, we have no testimony except that presented by petitioner and decedent's children. Decedent apparently retired that night without incident. He arose early, as was his custom. Petitioner arose at about 9 A.M. and found that her husband was already up. At about 9:30 she served him a breakfast of oatmeal and Sanka coffee. During the morning he walked and sat around the house. About noontime they both went to the supermarket, the husband driving the car. They "went all over" the market and the petitioner, not the decedent, pushed

the shopping cart around the market and to the automobile and placed the purchases in the car. They were in the market for about an hour. They then visited their daughter and grandchildren in Fords, arriving approximately at 1:30 P.M. In order to reach the daughter's house it was necessary to climb three steps. At the daughter's house decedent sat quietly, and he and petitioner left there at about 2:30, arriving home at about 2:45. Petitioner, not decedent, brought the purchases into the house. The total distance driven by decedent from his home, to the market, to his daughter's house and home again was approximately seven or eight miles. Upon arriving home decedent, after resting a while, went to the telephone to call his son. At the telephone he sat down, dialed and then slumped over the phone. There was no warning of this attack. The First Aid Squad and Dr. Urbanski were notified. Representatives of the First Aid Squad arrived and attempted to give decedent oxygen. Thereafter Dr. Urbanski arrived and found decedent "pulseless." "He took two breaths and he was dead." Death occurred at about 4:30 P.M. The doctor issued a death certificate wherein the cause of death was noted as: "Acute coronary occlusion (instant); arteriosclerotic hypertensive cardio vascular disease (2 yrs)."

There is no testimony as to any untoward incident or "moment of manifestation" on the day of the death except testimony by the daughter of decedent that at the time of his ...

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