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Baginsky v. American Smelting & Refining Co.

Decided: May 28, 1965.

ANN BAGINSKY, PETITIONER-APPELLANT,
v.
AMERICAN SMELTING & REFINING CO., RESPONDENT-RESPONDENT



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

Conford

This is a workmen's compensation "heart" case. Recovery was allowed by the Division of Workmen's Compensation but denied on appeal to the Middlesex County Court. Novel applications of the doctrine of Dwyer v. Ford Motor Co., 36 N.J. 487 (1962), are projected by the present appeal of petitioner.

Petitioner's husband, Walter Baginsky, employed by respondent since 1939 as a crane operator, died suddenly at home after collapsing while dialing a telephone number, on the late afternoon of Saturday, February 20, 1960. He had left work as usual the preceding evening at about 10:45 P.M., had an uneventful night, and spent part of the day of his demise driving his wife to market and to visit a married daughter. He was relaxed at home, doing nothing, for about an hour and a quarter before the fatal collapse.

The decedent began to develop symptoms of hypertension in 1954. By 1958 there was clear evidence not only of marked hypertension but also of arteriosclerotic cardiovascular degeneration,

as well as congestive heart disease with enlargement of both sides of the heart and decompensation, edema of chest and legs, rales, and shortness of breath. Although these conditions generally progressed until the time of his death, decedent did not miss any time from his work (apart from regular vacations), which he apparently performed satisfactorily at all times. However, he was physically relieved by enforced inactivity during a strike and shut-down of the plant from August 20, 1959 to December 10, 1959, and by a one-week vacation which he took in late January 1960 because he did not feel well enough to work at the beginning of that week.

Respondent's expert medical testimony was to the effect that decedent's death on February 20, 1960 was due to a coronary occlusion, traceable to his arteriosclerotic condition, which was independent of the general congestive heart disease; there was no causal connection with his work. A medical expert for petitioner gave the opinion that the death was simply the end result of the congestive heart disease, not the result of a coronary occlusion, and that there was causal contribution to the death by the employment in that the nature of the work was contra-indicated by the petitioner's condition and he died much earlier than he would have, had he abstained from such work. On the issues thus drawn the tribunals of first instance arrived at the opposite results hereinabove indicated. The judge in compensation was essentially in accord with the opinion of the petitioner's medical expert.

In an able and perceptive opinion for the Middlesex County Court, Baginsky v. American Smelt. & Refin. Co., 81 N.J. Super. 75 (1963), Judge Molineux concluded that although the evidence justified the medical conclusion that decedent's work-effort as an entirety over the years aggravated his congestive heart disease, it did not contribute to his death as that was the result only of a coronary occlusion and not of congestive heart failure. The judge supplemented that primary basis for his decision with the view that if in fact the evidence justified the medical conclusion that the death was caused by the congestive heart disease and not by a coronary occlusion,

recovery could still not be justified, even within the authority of the Dwyer opinion, supra. The reason given was that to allow compensation on the basis of an asserted causative work history over as extended a period as here, unaccompanied by any "moment of manifestation" of the heart ailment "appreciably near to the attack resulting in death" (not here present) "would for all practical purposes constitute a holding by this court that congestive heart failure is an occupational disease." The judge did not conceive that Dwyer "meant to go that far." (81 N.J. Super., at pp. 86-87)

Our own close appraisal of the record in this case, in the light of the controlling cases, principally Dwyer, leads us to essential agreement with the first above-stated basis for Judge Molineux's determination, making it unnecessary for us to express any view as to the merits of the interesting second and supplementary thesis in support of the result arrived at.

Before proceeding to a more detailed exploration of the evidence we take cognizance of the criteria by which we are to be guided, as painstakingly set out in Dwyer. The court stated:

"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 preexisting 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." (36 N.J., at p. 492)

The burden of proof of the petitioner is described as follows:

"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." (at pp. 493-494)

Coordinate with the liberality of the substantive principles thus stated is the firmness of the court's insistence as "generally * * * indispensable" on medical proof of causal connection not merely in general conclusionary terms but by "[e]xplanation of the physiological reactions of the diseased or ailing heart to the work strain in terms of sole or contributory cause and effect * * *." (Id., at pp. 494-495). See also Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139, 147, 155 (1963), rejecting as unpersuasive medical testimony that a coronary infarction necessarily always has a causal relationship with any later coronary infarction of the same person.

The decedent's job was to run a crane involving manipulation of any of some six levers and foot control of three pedals. The effort was said to be comparable to moving the gear shift and applying the mechanical brakes of a car. The work was done in a seated position. The weight of the loads moved by the crane did not affect the labor of operating it. There was varying testimony as to the height of the crane cab above the ground -- from 5 1/2 to 7 feet. Access to the cab was by climbing several rungs mounted vertically, with the aid of side bars for hand-holds. The workday was from 3 P.M. to about 11 P.M., broken by a one-hour lunch period taken near the crane. Decedent was required to walk about a half-mile from the employees' parking yard to the crane, and back again at the end of the day's stint. There was a downward grade en route to the crane of between 22 and 26 feet. There were several ways to traverse this distance, some less difficult than others. Which the decedent used was not established.

A son of decedent who also worked for respondent saw him at the entrance gate after the shifts each night during a work

week two weeks prior to February 20, 1960, and testified decedent was out of breath from five to ten minutes after the walk from the crane. But the substance of the testimony of several of decedent's co-workers was that during and at the end of his last work day he looked well, was in good spirits, and had no shortness of breath or other complaints of any kind. He asked one of them to have beer and clams with him after work, but the invitation was declined.

Petitioner testified in support of her claim. Decedent had worked for respondent since 1939. For many years until 1957 he also did casual part-time trucking for a coal and fuel concern. In 1958 petitioner noticed that decedent's legs were swollen; he had gurgling noises in his chest; he had trouble breathing, especially after coming home from work and while in bed, and he was tired all the time. These conditions got worse. In August 1958 the plant doctor sent him to be examined at Roosevelt Hospital. Nevertheless, decedent kept on working; but he got treatment from the plant doctors, particularly injections and pills. Before 1958 decedent would walk the short distance from home to work, but beginning that year he no longer could, and he began to drive. On January 19, 1960 decedent left for work but returned before he got there because he was very short of breath. Petitioner phoned the plant to request sick leave or a three-week vacation for decedent, but he was allowed only one week. The plant doctor gave him injections that week, and decedent felt better when he returned to work, but he again became "bad," developing "burps" along with the other complaints noted.

On February 20, 1960, a Saturday "day-off," decedent had breakfast at 9 A.M. after a night of rest about which petitioner recounted nothing of note in her testimony. He then sat around doing nothing the rest of the morning. At noon he drove his wife two or three miles to a supermarket where they did the weekly shopping. He carried no bundles; she said he never did -- "he couldn't." From there, at about 1 P.M., they drove ...


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