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Walck v. Johns-Manville Products Corp.

Decided: July 20, 1970.


For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.


This is a heart death workmen's compensation case. The Division of Compensation made an award in favor of petitioner Katherine F. Walck, widow of decedent. The County Court and Appellate Division (in unreported opinions) affirmed and we granted respondent's application for certification. Walck v. Johns-Manville Products Corp., 55 N.J. 358 (1970).

An original and an amended petition for compensation were filed. The first, which was filed on December 11, 1963, simply alleged that on March 14, 1962 at 9:00 A.M. "[D]ecedent suffered a heart attack at his office desk and was taken to [the] plant dispensary [from which] he was taken to Somerset Hospital where [he] expired at approximately 10:20 A.M." The amended petition, which was filed three months later, alleged that "during the course of his employment, [decedent] was subjected to various stresses and strains and conditions, arising out of and in the course of his employment, which caused and aggravated a cardiovascular condition which culminated in a fatal heart attack on March 14th, 1962."

At the hearing in the Division, petitioner sought to establish the employer's liability on two theories. The first thesis was that the deceased employee, Claude W. Walck,

had been subjected to certain employment-connected emotional tension which so acted upon an underlying condition of heart disease as to cause or contribute to his fatal heart attack on March 14, 1962. The second theory was that on many occasions during the course of Walck's employment he was treated and examined at the plant dispensary "for certain complaints" and that there was a "failure to properly evaluate and diagnose the decedent's health status and by reason of that failure * * * the decedent suffered injury which contributed to his death." By way of explanation of the precise nature of this charge, petitioner's attorney advised the Judge of Compensation that he had used the term "failure * * * advisedly * * * in a legal sense," and that he had no intention of imputing "any carelessness or any negligence." He was simply alleging a non-negligent mistaken diagnosis.

The trial judge found that a right to recover had been established on both theories. The county court judge affirmed on the ground that the evidence showed employment-induced emotional strain which caused or contributed to Walck's heart attack and death. Having sustained the award on that basis, he declared it unnecessary "to pass upon the applicability of the humane instincts doctrine," which was enunciated by our Court in Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479 (1960) and on which petitioner relied. The Appellate Division affirmed on the same basis.

Walck became employed in respondent's industrial relations department on June 16, 1951. He was 41 years of age at the time and 51 years old when he died. In the 10 years and nine months of service, his wages had increased from $5,000 to $10,150 annually. In 1962, he was Supervisor of Employment and Employee Relations; it was a desk job. Like all other employees, he was given a pre-employment medical examination. That examination, including a fluoroscopic study of his chest, was negative. His only complaint was that he suffered from occasional indigestion. This examination was repeated annually thereafter.

The only fact witness produced in support of petitioner's case was decedent's widow, Katherine F. Walck. She testified that, as far as she knew, during the two or three years before his death her husband had been in good health except for nerves and tension. She was not aware of any heart condition, but said that her husband had been treated by the family doctor for the nerves and tension. She testified that over a year before the fatal heart attack Miller Naylor, respondent's manager of industrial relations, retired. He had been Walck's superior from the inception of her husband's employment. On his retirement, one Grote was appointed to succeed him. After this event, Mrs. Walck said her husband seemed nervous and tense. This condition showed itself in the evening after he came home, when he "would seem aggravated, a bit irritable." He would want to relax, watch television or read the newspaper. Sometimes he would fall asleep before dinner which he had not done in earlier years. He told her he was concerned that he might lose his job. When Naylor was his superior he had never "evidenced these feelings of nervousness and tension." However, no testimony was offered to show that Walck and Grote ever had words, or a dispute or any kind of a disagreement, or that Grote had ever criticized Walck's work, or reported him for anything, or ever had him "on the carpet." No employee was produced to say that Grote and Walck did not get along together. In the voluminous records of respondent's clinic, which describe Walck's many visits and the many kinds of complaints which brought him there over the years (of which more later), not one complaint related to an employment condition or a problem with a superior -- Grote or anyone else. In fact, it does appear that, during the period after Grote became manager of the department, Walck received a $600 wage increase.

According to Mrs. Walck, her husband did not tell her why he was concerned about his job. She put it this way: "I suppose on certain days an insecurity feeling, not knowing how he stood, that type of thing." She described a single

incident which he mentioned to her. About six months or a year before his death, one day when Walck was working at his desk Grote suddenly appeared "and stood at the desk and when [Walck] looked up and spoke to him he sort of eased his way out. He [Walck] couldn't figure out why he had come in there." There was nothing further to that episode and no explanation as to why Grote's presence in the office near Walck's desk was of any significance -- beyond the routine appearance of a superior.

It may be well to note at this point that the trial court criticized respondent for failing to produce Grote as a witness. In our view, the criticism was unwarranted; we see nothing of significant consequence in this isolated, momentary episode, or in the remainder of Mrs. Walck's testimony, to rebut or to explain.

At any rate, Mrs. Walck asserted that, in addition to her husband's nervousness and tension during the year or so before the fatal heart attack, he began to complain of pains and pressure in the chest area and pains in his right arm. He consulted their family physician, Dr. Robert C. Wilson of Somerville, a specialist in internal medicine, for the nerves and tension. The doctor is a Diplomate of the American Board of Internal Medicine, Fellow of the American College of Physicians and Director of Medicine at the Somerset Hospital. Fifty percent of his practice involved the treatment of patients with cardiovascular complaints or heart conditions. He had known Walck quite well socially over a 12-year period and had examined and treated him for over six years before the fatal heart attack. It is appropriate to note here that the doctor could not recall any occasion over the six-year period when Walck made a complaint referable to his employment, to his fellow employees or to any superior. Dr. Wilson's office records showing all visits, complaints and treatments during the six years were marked in evidence. They also revealed no such complaint.

In addition to his employment with respondent, Walck had long been active politically in Somerville. He had been

reelected as councilman on at least one occasion and had served in that capacity for six years. In November 1961, he was elected Mayor and took office on January 1, 1962. According to Mrs. Walck, he enjoyed political life and, as far as she could tell, it caused no nervousness or tension. She conceded that his official activity took him out of the house two or three evenings a week, occasionally as late as midnight. She did not mean to infer that he encountered no difficulties in his political tasks; she was sure that from time to time the council ran into "very sticky problems."

It appeared also on cross-examination that Walck had suffered from backache for a long time and, although non-work connected, was given physiotherapy for it at the plant clinic. Mrs. Walck admitted also that her husband had aches and pains that reoccurred on several occasions throughout his employment from 1951 on, that he was in the Somerset Hospital in 1953 for three days for gastric complaints, and that he had a stomach G.I. series around 1958. In 1957 he was treated by a dermatologist for a skin cancer in his left ear which cleared up after a few months of treatment.

On March 14, 1962, when Walck left home for work at about 7:40 A.M. he was not complaining of anything. Around 10:30 A.M., Dr. Wilson advised Mrs. Walck by telephone from the Somerset Hospital that her husband had passed away.

The records of the employer show that at 8:45 A.M. Walck walked into the clinic from his office which was "right next door." He complained of severe pain in his chest, shortness of breath and a burning sensation in the throat. He was put to bed there. Dr. DuBow, the plant physician, noted that the pain was said to be arising from the tip of the sternum and traveling up to the neck. The pulse rate was 72 and the blood pressure 130/80. Walck was reassured and given triple bromides, feorinal and sedation. The pain persisted and began to radiate to his back. At 9:20 A.M. he was given 50 milligrams of demerol. At this time the blood pressure was 110/70 and the pulse rate 86. The pain persisted and began to radiate to his left hand. Dr. DuBow's overall impression

then was that an acute coronary thrombosis had developed. Walck was given morphine sulphate at 9:40 A.M. and Dr. Wilson, the family physician, was called. He advised immediate hospitalization. Oxygen was administered and Walck was taken to the emergency room of the Somerset Hospital. He arrived there at 10:06 A.M. and Dr. Wilson was present. Death occurred at about 10:20 A.M.

An autopsy was performed and completed within two hours after death. The cause of death was found to be "Acute Cardiac Dilatation from Myocardial Infarction." With respect to the heart condition, the autopsy revealed "arteriosclerotic cardiovascular disease with coronary arteriosclerosis, with stenosis, left anterior descending coronary artery, with acute anterior myocardial infarction, acute cardiac dilatation, pulmonary edema and congestion and cyanosis." The description of the findings is as follows:

"The heart is very slightly enlarged but markedly dilated. The pericardium is thin and the sac is dry. The epicardium is unremarkable. The myocardium is dull reddish-brown, moderately firm and somewhat flabby. The anterior apical half of the left ventricle shows a subepicardial sharply demarcated zone which is slightly moist, slightly soft and has a tannish-brown color. A fairly sharp line of demarcation separates this from the reddish-brown surrounding musculature. The cut surface of this area shows some swelling and slight obliteration of the normal muscular gross striations. The endocardial aspects are smooth, thin and glistening. The valve cusps and leaflets are thin and delicate and have a normal configuration. The coronary arteries arise and course normally. The left coronary artery shows moderate thickening by yellow firm focally calcified material. This process is most marked in the left anterior descending branch approximately one-third of the way down the course. Here there is almost complete occlusion by excentric yellowish-white firm material. No thrombus is seen. Distal to this point the lumen is adequate and the wall is unremarkable. Minimal thickening is noted in the right coronary artery. The aorta and its branches arise and course in a normal fashion. There is normal elasticity and the lumen is of average caliber. Scattered yellow plaques are seen throughout. * * *"

Microscopic examination of the cut section of the coronary artery showed "marked atherosclerotic thickening with reduction of the lumen to a slit."

Petitioner called Dr. Saul Lieb as an expert medical witness in support of the theory that the death was one which qualified as an accident "arising out of and in the course of employment" within the meaning of our cases. Like Dr. Wilson, Dr. Lieb is a specialist in internal medicine and certified as such by the American Board of Internal Medicine; he is associated with several hospitals as an internist. Dr. Lieb examined a series of electrocardiograms (EKG) of Walck that had been taken annually between March 31, 1952 and June 27, 1961 either by or for Dr. D. T. DuBow, the plant physician, as part of the annual medical examination which was apparently given to all employees. As noted thereon, each one was read by Dr. DuBow to be normal. However, Dr. Lieb said he would interpret seven of the ten plant EKG's as showing "minor deviations from the normal," and "as being suspicious of myocardial involvement." Each of them, although separated by the intervening years, showed the same degree of involvement. It would be "very technical" to explain the condition beyond a minor deviation, but he thought one trained in cardiology would agree with his impression. However, he admitted that the vast majority of general practitioners could call the EKG's normal. He added that the condition is very often seen as "a residual of many, most anterior myocardial infarctions," as a Dr. Dressler had pointed out in an article many years ago. So, as Dr. Lieb continued, "when you see it for the first time, while it is not a striking pattern, it is striking in that you may have a thought that perhaps this may represent a residual of an old infarction." (Emphasis added.)

Here it may be noted that Dr. Jerome G. Kaufman studied the EKG's and testified about them for respondent. He too is a specialist in internal medicine and cardiovascular diseases and has so specialized since 1927. The trial judge observed that he had never heard Dr. Kaufman's qualifications questioned by anyone. Dr. Kaufman said that the EKG's "fall within the normal scope of electrocardiograms as you

see them in your office," and one should not make a diagnosis of coronary disease based upon them.

The record shows that Dr. DuBow had taken these plant EKG's to Dr. Wilson for examination. Dr. Wilson, who, as we have said, is also a specialist in internal medicine as well as the decedent's family physician, interpreted them as being normal. In addition, it appears that Dr. Wilson took three EKG's of his own on January 14, 1956, March 26, 1959, and February 19, 1960. In his opinion, they too were normal. Dr. Kaufman also examined them and agreed that they were within the normal range.

Dr. Lieb stated that in addition to his review of the EKG's he considered a number of complaints made by Walck at respondent's clinic beginning on July 30, 1956 and continuing at intervals until the fatal heart attack on March 14, 1962. These complaints generally related to nervous indigestion, stomach pains, pain in the chest, soreness of chest muscles, pulsating pain in chest, and on March 14, 1962 severe pain in chest, shortness of breath and a burning sensation in the throat. Based on the EKG's and these complaints, it was his opinion that Walck had definite evidence of arteriosclerotic heart disease with symptoms of coronary insufficiency in the several years prior to his death. He testified further that on such a diagnosis he would give patients certain advice and medication. In elucidating, he said he would advise them to "avoid any emotional stress and strain and to not let the various details of existence get to them too much because this has an adverse effect upon the coronary arteries. Emotional stress and strain will precipitate angina and coronary insufficiency." Further, he would tell them "to live in moderation, to get a proper amount of rest, sleep and vacations," and to avoid overweight. For example, he noted that Walck was 5'8-3/4" tall and weighed 184 pounds and that his lowest weight appearing in the records was 178-3/4 pounds. In his view, Walck would have been much better off weighing 15 to 20 pounds less in order to spare his heart the burden of carrying around excess weight.

[I]n summary, I would say that I feel we have here a case of coronary disease that was aggravated by the emotional stress and strain arising from his employment in the last year of his life, and the fatal outcome of the myocardial infarction, which occurred while he was at work was favored by the fact that it was superimposed upon far advanced degree of coronary disease.

As to medication, Dr. Lieb said he would prescribe nitroglycerin to be carried around and to be put under the tongue when pain occurred. He would put such patients on sedation, "if they are nervous, tense people," and although not too efficacious he would give vasodilator drugs "for whatever benefit they may provide." He considered it important that such patients understand their symptoms. On being asked to assume that on March 14, 1962, in the normal course of his work Walck suffered a myocardial infraction due to coronary sclerosis, the doctor said that having in mind all the records he had examined, it was his opinion that Walck had at that time "a rather far advanced degree of coronary disease."

The doctor said he would advise such a patient not to submit himself to situations in which he might "become aggravated or upset." When asked what advice he would give about engaging in politics he said:

"I would advise him to avoid whatever stressful situation that he could. Now, these people, if you know what they have, you usually tell them to restrict whatever activities, emotional stress and strain that he might have to contend with to make a living, and you tell them to avoid any outside activities outside of making a living, that will induce any emotional stress and strain because that will spare the heart, and you have many who will select those activities which are absolutely essential and to avoid others."

Dr. Lieb was given a long hypothetical question, the core assumption of which was Mrs. Walck's testimony to the effect that in the year prior to her husband's death she "observed that he was suffering from nerves and tension," that she "could see evidence of tension on his job when he would

come home at night appearing aggravated, irritable and upset," and that "he told her he was concerned about his job." The hypothetical question also assumed: (1) a description of the Grote incident; (2) Mrs. Walck's statement that after the advent of Grote as his superior, her husband complained of nervousness, tension, chest and right arm pains and a feeling of pressure in the chest, and that "he began seeking medical attention for his nerves and for this tension," (Emphasis added.); (3) that, although active in politics, decedent was happy and relaxed in that work and had no undue hardships or conflicts in that area; (4) that upon seeking advice from the "medical authorities" who examined him, he was reassured that there was nothing wrong, "just nerves and tension" and he was never advised that he had a heart condition; and (5) that the condition of Walck's employment during his last year was that "he went about his work with a constant feeling of concern, uncertainty, tension and nervousness." On the basis of these various assumptions, and the doctor's familiarity with the records and EKG's, and the diagnosis he had made of Walck's underlying condition, and "considering the tension state he was working under," he was asked if he had an opinion "as to whether [Walck's] work and the effect which his work had upon him, as an individual, and the thoughts and beliefs which developed in him as regards his work status * * * contributed to the attack which he suffered while at work on March 14, 1962." He gave an affirmative answer, which concluded:

In further explanation of the opinion as to causal connection between the work and the heart attack, Dr. Lieb said that the emotional stress and strain had to be of an appreciable nature. Although the Grote incident, of itself, would not support his conclusion, he accepted as true that it did produce some tension -- because he was asked to assume that it did in the hypothetical question. On being asked if he would expect that this one "occasion of [Walck's] boss coming in and standing at his desk" would have a more

"traumatic stressful effect" than Walck's long medical history, the doctor said:

Well, I don't want to compare the two because I was not given how it affected him. I was told that this particular stress incident did affect him, and I am accepting it.

If, however, he assumed that Walck was concerned about these other illnesses, he would say that they contributed to his cardiovascular difficulty. In any event, he said that he assumed the condition of emotional stress and strain which was related to Walck's work became more apparent and continued all during the final year of his life. Such assumptions were necessary to his opinion. With respect to the political activities as a tension-causing factor, he dismissed them because in the hypothetical question he was told that they did not bother Walck, and he "accepted that."

In support of its position that petitioner's claim of proximate causal relation between alleged work-induced emotional stress and strain and the fatal heart attack amounts to speculation and conjecture, respondent undertook to show decedent's long medical history. That history, which will be detailed hereafter, demonstrates beyond question that Walck suffered from anxiety, tension, nerves and worry about his health for many years prior to the Grote incident and long before he allegedly "began" treatments therefor by Dr. Wilson. It shows also that at no time over the years did he ever relate those conditions to his employment.

Although Walck's complaints began early in his employment with respondent, a recital of them can be deferred until Dr. Wilson's professional and social relations with him are considered. In our judgment, the doctor was unduly criticized by the trial court for his appearance in the case. It is obvious that he is not a "professional witness" and was not accustomed to appearing as such in the Workmen's Compensation Division. What seems to have been overlooked is that the doctor produced his handwritten office records dating back to 1956 and containing Walck's complaints

and the treatment given down to a little over two weeks before the death. They were all ante litem motam records and as such entitled to considerable probative value.

The record begins on January 10, 1956 at which time Walck had an acute low back sprain. On January 14 the back had improved but the patient wanted a check-up. The history given on that date is significant:

For several years has had epigastric fullness and distress, nausea, belching, gas, bad taste in mouth. * * * Symptoms are definitely related to nervous tension.

For past few months has been troubled with shortness of breath. Claims to be short of breath now but isn't. Father died of coronary and 1 brother age 44, has had 3 coronaries already. * * *

Weight has slowly climbed from 148 when he went in Army to 187 now. Smokes 2-3 cigars, doesn't inhale, they are laxative for him. System review otherwise negative. Blood pressure 130/80 * * *. Complete exam, including rectal negative, EKG, urine and fluoroscope negative, Rx -- Complete G.I. series.

Further visits followed. Eleven months later on a visit of December 6, 1956, Walck had "numerous psychosomatic complaints, headaches, left upper and lower quadrant pain, gas, shortness of breath, pains in chest." The examination was negative and reassurance was given. On August 14, 1957, Walck complained of low back pain, pain and tenderness in left lower quadrant. Examination showed albumin in the urine and patient was sent to hospital to have this condition checked. Apparently around this time, Dr. Gentile, a urologist, diagnosed a prostatitis and began treating him. On September 5, 1958, he had a cold and bursitis in his right shoulder and elbow; medication was given. On March 26, 1959, the doctor saw Walck at home and at the office. He had "severe tension symptoms, anxiety and tightness in the chest." On examination, pulse was 72, blood pressure was 135/85, heart and lungs were negative, fluoroscope was negative, and an EKG was normal, i.e., no change from the earlier one. On February 19, 1960, he complained of having a cold for four weeks and now of "heavy pressure in chest when lies down, choking in throat, pains in abdomen,

back and down left leg, pains in head, several others. Very worried and depressed." EKG was again normal. February 25 and March 3, 1960 -- same complaints and sore throat. The doctor prescribed "various tranquilizers, anti-depressants and anti-spasmodics." June 13, 1960 -- a cold. On June 16, 1961, he had "muscular pains in upper anterior chest and throat for three weeks. Great anxiety." A laryngoscopy was negative; "heart and lungs O.K."; some mild tenderness of muscles of neck and upper chest." Equagesic was prescribed -- a combination of tranquilizer, some aspirin and muscle relaxant; November 20, 1961, same complaints -- Equagesic renewed; February 26, 1962, complained of "low backache, flatulence and crampy abdominal pain. Been taking antibiotic -- saw (Dr.) Gentile -- prostate is O.K. * * * Low back is a little tender." Dr. Wilson last saw Walck at the hospital on March 14, 1962 when death occurred.

In addition to seeing him professionally, Dr. Wilson saw Walck frequently around town and at meetings. In his opinion, Walck was a hypochondriac; because of the family history he worried and was tense and anxious about his health, not only about heart disease but about cancer as well. One of his relatives had died of cancer and he had had a small cancer on an ear lobe. Dr. Wilson said the anxiety and tension were part of Walck's nature; he "couldn't help it." Dr. DuBow, respondent's plant physician, consulted Dr. Wilson, as Walck's family doctor, about his many complaints at the clinic. As has been indicated above, Dr. Wilson, as the specialist, agreed that Dr. DuBow's EKG's were negative; and both doctors were in accord that Walck was a hypochondriac. They "could never find any evidence" of coronary artery disease. Dr. Wilson said there was no reason why a person with hypochondria could not die of heart disease.

After the death, Dr. Wilson saw the autopsy report and, on that basis, agreed that Walck had had coronary artery disease for an extended period of time before his death. He

also conceded that it was quite possible that the chest and other complaints Walck made to him could have been indicative of coronary artery disease.

In view of the claim that decedent's anxiety and tension was related to his employment, it is important to review his long history of complaints to Dr. DuBow at respondent's clinic. Our count shows 62 clinic visits between June 15, 1951 and the death on March 14, 1962, excluding diathermy treatments for back and other pain and treatments for hand lacerations and other injuries which occurred away from work. Some of the visits must be set forth in the following excerpts:


July 19 Month after employment began

Feels sick to stomach, has gas pains.

Oct. 22 "Does not feel well; says aches all over. * * * Went

home 11 a.m."

Oct. 26 Complains -- sore throat; requested that it be painted.


Feb. 25 Pain in back.

Apr. 4 Sore throat.

July 18 "Says feels shaky -- and just threw up. No pain. Feels


Aug. 21 "Has backache -- says for about 1 week, weakness and

soreness in back which lasts about 4 hours each day."

Dec. 19 "Complains of pain in abdomen * * *."


Feb. 25 "Complaining of sore back for about 1 week. * * * Says

carried a typewriter and thinks that may have been


June 26 Pain in right forearm.

July 7 X-ray cervical spine * * *. Some slight cervical scoliosis,

otherwise negative.

"Advised because of presence of hypo-anaesthesia of

right upper extremity to seek neurosurgical advice. Dr.

N. T. Fitch recommended and can take X-rays of cervical

region and chest with him."

July 29 Complaining of severe pain in abdomen. Points to l.l.q.

[left lower quadrant] * * *. Nauseated and some diarrhea.

go home. Medical case. * * * Taken to ...

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