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Kaplowitz v. K & R Appliances Inc.

Decided: December 17, 1969.

LEO KAPLOWITZ, PETITIONER-APPELLANT,
v.
K & R APPLIANCES, INC., RESPONDENT-RESPONDENT



Conford, Collester and Kolovsky. The opinion of the court was delivered by Conford, P.J.A.D.

Conford

[108 NJSuper Page 56] Both parties to this appeal agree that petitioner sustained a coronary occlusion causing a myocardial infarction on December 14, 1963 and a recurrence thereof on or about January 18, 1964, both work-connected, the December 14 incident directly and that of January 18 indirectly. The issue disputed below and here is whether later infarctions sustained by petitioner on October 18, 1965, June 30, 1967 and March 3, 1968 were also causally related to the employment. See Schiffres v. Kittatinny Lodge, Inc. , 39 N.J. 139 (1963); Close v. Kordulak Bros. , 44 N.J. 589 (1965). The Division of Workmen's Compensation held they were; the Essex County Court that they were not. Petitioner appeals.

More precisely, the issue so resolved was whether the first*fn1 infarction caused or materially contributed to the occurrence of the later infarctions or whether the latter were due solely to the natural progression of the cardiovascular, arteriosclerotic disease from which petitioner was suffering even prior to the first occlusion and infarction. Respondent impliedly concedes, and it would be our view, that if there was causal relation between the first and the three later infarctions, causal relation with work-effort is thereby established and petitioner becomes entitled to an award for the amount of disability existent after the last of the infarctions, which the proofs show to have been substantially greater than after the first.

The record shows hospitalizations for coronary infarctions sustained by petitioner for the following periods: (1) December 15, 1963 to January 12, 1964; (2) January 18, 1964 to February 23, 1964; (3) October 18, 1965 to November 10, 1965; (4) June 30, 1967 to July 15, 1967; and (5) March 3, 1968 to March 17, 1968.*fn2 After the first attack petitioner resumed his employment with respondent in Newark on a part-time basis in July 1964, but soon thereafter changed to a sedentary job nearer home averaging about six hours a day. This continued until his October 1965 attack. He returned to sedentary work on a two-three hours daily basis in April or May 1966 and continued thereat until the June 1967 attack. He returned to the same work in September 1967 and continued until November 1967, when he went to Florida for the winter on his doctor's advice. He sustained the March 1968 infarction in Florida. The hearings in this case concluded in April 1968.

Petitioner was attended by Dr. Klein, an internist and petitioner's family physician, during the entire period of

the coronary episodes involved in this case. Petitioner had a previous condition of mild hypertension, emphysema without serious symptoms and a chronic bronchial cough. During and after the 1963-1964 hospitalizations Dr. Klein was prescribing coronary vasodilators and anti-coagulants for the heart and other medications for the bronchitis. There were periodic office visits until the October 1965 attack. There were no visits between February 2, 1965 and August 16, 1965.*fn3

At the hospital in October 1965 petitioner was given medications for the heart muscle and for thinning the blood and a diuretic to relieve congestion from fluid in the chest.

Between hospitalizations petitioner was receiving various medications to help his heart and circulation. By the time of the hearings he was also receiving nitroglycerin for relief of anginal symptoms.

Dr. Klein described the 1963-64 infarction as of the anterior-lateral wall (the hospital records say "anterior wall"); the October 1965 incident as concerning the "lateral wall"; and the June 1967 event, the anterior wall. He stated that electrocardiograms ("EKG," hereinafter) taken at different times between the 1963-64 and 1965 infarctions showed an essentially stable condition, but on cross-examination he would not say they showed the prior infarction to have been "healed" but only "healing." Yet on further cross-examination he conceded that a healed condition would be indicated by a period between "stable" EKG's. He also said that comparative EKG's on March 9, 1964 and August 31, 1964 (at some points in the record August 31, 1965 is the date given) reflected "as much healing as possible in the myocardial infarction."

Dr. Klein testified that the October 1965 infarction was a "fresh" one, in a "different portion of the heart" from the prior one, although contiguous thereto.

Dr. Klein could not relate the October 1965 and later infarctions to the first or to the work effort, but stated: "I'm of the opinion that a man who has had one coronary is a better than average candidate to have another." However, he conceded this was a statistical conclusion based on the fact that "this is a degenerative disease which progressively worsens itself." At another point he said in relation to the October 1965 incident: "Certainly this ...


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