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Engelson v. J.F. Zucker Co.

Decided: March 9, 1972.

CELIA ENGELSON, PETITIONER-RESPONDENT,
v.
J.F. ZUCKER COMPANY, RESPONDENT-APPELLANT, AND CELIA ENGELSON, PETITIONER-RESPONDENT, V. REMCO INDUSTRIES, INC., RESPONDENT-RESPONDENT



Harrison, J.c.c.

Harrison

This appeal from awards of the Division of Workmen's Compensation raises the novel question of liability for death benefits where an employee sustained a compensable heart attack while working for one employer, obtained new employment upon recovery and after the passage of more than 3 1/2 years sustained another compensable heart attack, followed by his rapid deterioration culminating in death.

Petitioner Celia Engelson applied for dependents' death benefits for herself and her six-year-old daughter pursuant to N.J.S.A. 34:15-7 et seq. The Division found both

employers equally liable for the death benefits, directing each to pay its half on the basis of the salary paid decedent while in its employ. The first employer appeals, disclaiming any obligation for death benefits. Petitioner filed a pro forma cross-appeal to protect against the possible reversal of the Division's judgment against both employers. The second employer has filed no appeal or cross-appeal.

The basic issue on this appeal is whether the first employer should be held equally liable for death benefits with the successor employer. Considering the case de novo upon the record before the Division, I find the essential facts to be as follows:

Although only 45 years old, Jack Engelson apparently had an advanced arteriosclerotic condition. On June 12, 1963, while working for respondent-appellant Zucker at a weekly wage of $130, he suffered an acute myocardial infarction due to his work efforts, for which the Division awarded him temporary disability for 20 weeks and permanent disability at 40% of permanent partial total disability.

After recovering from this attack Engelson went to work for respondent Remco, receiving a reduced weekly salary of $84.37 for a job requiring less effort and less hours, 20 hours a week, because of his impaired physical condition. Remco showed this consideration for Engelson as a former employee. On April 3, 1967, three years and ten months after his 1963 attack, Engelson, after some strenuous exertions in the course of his employment by Remco, suffered a second heart attack for which he was hospitalized with a diagnosis of arteriosclerotic heart disease with a very extensive anteroseptal myocardial infarction.

The Workmen's Compensation Division on March 21, 1968 determined Engelson to be 100% disabled as a result of the second attack but found no causal relation between the 1963 and the 1967 attacks. The Division credited the 40% awarded after the 1963 attack as part of the 100% and

held that the 1963 award had relieved Zucker of all obligations in the proceedings in that matter for any further temporary or permanent disability. This holding was based on the medical testimony that Engelson's heart condition had "stabilized" between the 1963 and 1967 attacks, meaning that he had a healed infarction which remained unchanged or stationary for an appreciable length of time, from June 1963 to April 1967.

After the April 1967 attack Engelson became unemployable as a cardiac cripple. He was in congestive heart failure and was hospitalized four times during the two years following the April 1967 infarction; in August 1968 for coronary insufficiency, in November 1968 and February 1969 for anteroseptal infarctions, and on May 21, 1969 for extreme heart failure. He died at his home on June 23, 1969. There was no autopsy. The death certificate, as completed by his treating physician, Dr. Saul Lieb, stated the cause of death as being arteriosclerotic heart disease and multiple myocardial infarctions.

The issue of Zucker's liability for death benefits turns upon the ascertainment of a medical fact issue: Was there a sufficient causal relation between the compensable infarction of June 1963 and the death of June 23, 1969? Remco, the second employer, supports the petitioner's position. It urges that both the June 1963 and the 1967 episodes contributed substantially ...


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