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Pankiewicz v. New Jersey Bell Telephone Co.

Decided: November 14, 1968.

JANE PANKIEWICZ, PETITIONER-RESPONDENT,
v.
NEW JERSEY BELL TELEPHONE CO., RESPONDENT-APPELLANT



Gaulkin, Collester and Labrecque. Gaulkin, S.j.a.d. (dissenting).

Per Curiam

In this proceeding for workmen's compensation death benefits, which resulted from the death of petitioner's husband by heart attack, both the judge of compensation and the County Court judge in a de novo review, found that decedent's death was causally related to his work effort. We conclude that the findings of the County Court could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Affirmed.

GAULKIN, S.J.A.D. (dissenting): In Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139, 152 (1963) the Supreme Court said:

"Let us suggest the problem which concerns a court composed of laymen, not physicians. Facts must be found in the record (as distinguished from mere conclusory statements) which will demonstrate to the inquiring and reasoning judicial mind that the relation of cause and effect existed * * *. And that conclusion can be accepted only if the facts proved and inferences from them are sufficiently credible and convincing as to outweigh incompatible facts or inferences."

This standard has not been changed by Close v. Kordulak Bros., 44 N.J. 589 (1965). The only effect of Close v. Kordulak Bros. is that the Appellate Division no longer makes these findings itself but determines whether the findings made by the County Court "'could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility * * *." Close, p. 599. In my opinion, here the findings of the County Court are not based on facts but upon mere conclusory statements which cannot support an award.

The opportunity of the Judge of Compensation to hear the witnesses is of no importance in the case at bar. The

testimony of the lay witnesses was substantially undisputed and the veracity of the medical witnesses is not challenged. The case resolved itself into a battle of experts -- Dr. Rowland D. Goodman for petitioner and Dr. Jerome Kaufman for respondent, neither of whom had known decedent during his lifetime.

It seems to me that Dr. Goodman's opinion that decedent's work contributed to his death was a mere conclusion, not supported by the "facts proved and inferences from them * * *." The sum of his testimony appears to me to be that (1) decedent died during working hours of a coronary occlusion (2) the work he had been doing that morning could not have caused his death that day unless he had had an underlying serious coronary artery disease -- what he called "an impending myocardial infarction"; therefore (3) he must have had the impending myocardial infarction; (4) since he had the "impending myocardial infarction," the work he did that morning was sufficient to cause his death that day. It seems to me that such circular reasoning should not be accepted as the basis for an award. If it must be, I cannot see how an award can be denied to any manual worker who dies during working hours.

There was no autopsy. Defendant was never treated for a heart condition nor told he had one. He appeared to be in good health until December 26, 1963, two months before he died. On December 26, 1963, while attending a funeral, he was sick to his stomach, pale and drawn. Petitioner's own brief describes his health thereafter as follows: "During the month of January of 1964, the decedent's widow, or other members of his family did not notice anything significant one way or the other regarding decedent's health. On February 7, 1964, the decedent's widow noticed further changes in the decedent's health. On this date, he appeared pale, and had a drawn look. Decedent did not go to work, but stayed home in bed on that date. His stomach was upset, and he was taking pills that he received from Bell Telephone Company, which pills were labeled 'Digestive

Compound Tablets for relief of stomach upset, heartburn or mild diarrhea'. Subsequent to February 7, 1964, the decedent returned to work. On or about February 18, 1964, he came home from work about 9:30 A.M. The decedent's widow, on that day, noticed that he was 'breathing funny'. He did not feel good. He looked as if he needed a shave, but upon closer examination by decedent's widow, he just appeared gray, and did not need a shave. On this day, the decedent attempted to take a ride in the car, and went to a shopping center, but because of how he felt, did not go in, but returned home. The decedent's son, Daniel Pankiewicz, testified that during the month of February, decedent appeared tired all of the time and that this increased in frequence. On the date of his death, the decedent was first noticed by his son, Joseph Pankiewicz, at about 7:00 or 7:30 in the morning. The decedent appeared pale."

Dr. Goodman testified that he concluded from the foregoing that decedent had "impending myocardial infarction" because of the above described "symptoms of sickness to the stomach, appearing gray, shortness of breath * * *." But on cross-examination he testified:

"Q Those facts [as to his December 26 symptoms] in and of themselves are not sufficient for you to ...


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