For reversal and remandment -- Chief Justice Hughes, Justices Jacobs, Hall, Sullivan, Pashman and Clifford and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned.
The Second Injury Fund (known at times in the past as the One Percent Fund and the Two Percent Fund, and hereinafter referred to as the Fund) created by the Legislature from contributions by employers to absorb in certain cases of permanent and total disability part of the impact on employers of awards of workmen's compensation, L. 1923, c. 81, as amended at various times thereafter (now N.J.S.A. 34:15-94, 95, 95.1), seeks review in this court of the imposition of partial liability upon it by the Appellate Division in respect of claims for compensation by Fred Paul for accidental disability arising out of his employment by Baltimore Upholstering Co. ("Baltimore")
On November 25, 1969 Paul suffered his fourth myocardial infarction, all in the course of employment by Baltimore as an operator and tufter in its upholstering plant. The first one occurred in February 1966. For this he was awarded partial permanent disability of 25% of total. Two additional infarctions in July and December 1966 resulted in another partial permanent disability award of 25% of total. In late 1967 Paul returned to work for Baltimore and continued there (except for a three-month interval in early 1969 when he was ill with coumadin*fn1 poisoning) until November 25, 1969, at which time he experienced severe chest pains while lifting a piece of furniture at work. The pains
persisted, and Paul received medical attention, being hospitalized about a week later. He has not been able to work since the November 1969 incident because of severe "heart" symptoms.
The original 25% award was entered against Firemen's Fund American Insurance Company ("Firemen's Fund") and the second against United States Fidelity & Guaranty Company ("U.S.F. & G."), which were respectively on the risk when the several prior infarctions occurred. In November 1969 Baltimore was covered by Employers Mutual Liability Insurance Company of Wisconsin ("Employers Mutual"), which is the real adversary of the Fund in this litigation.
Paul filed another claim petition for compensation in the Division of Workmen's Compensation after his 1969 infarction, based thereon, claiming total and permanent disability. Employers Mutual filed an answer and brought in as respondents to that proceeding the two carriers on the prior coverage and also the Fund. Judge of Compensation Saland found Paul to be totally and permanently disabled as a result of the November 1969 heart attack. He dismissed the claim of Employers Mutual against the Fund on the ground that the latter attack "aggravated and accelerated" the prior coronary disability "to the extent that [Paul] is now totally and permanently disabled." See N.J.S.A. 34:15-95(b). The judge held U.S.F. & G. liable for 12 weeks of temporary disability for the coumadin poisoning and Employers Mutual for 450 weeks of compensation at $83.33 per week, less $11,000 in awards paid by the prior carriers, and he dismissed the claim against Firemen's Fund.
On Employers Mutual's appeal to the Appellate Division that tribunal in an unreported per curiam opinion held:
(1) the trial holding that the incident of November 1969 aggravated and accelerated the pre-existing coronary disability, thus rendering the total disability chargeable to the employer alone, was unjustified. The medical proofs compelled a conclusion that the said incident was the cause of
only some partial permanent disability, which when combined with and superimposed upon the partial permanent disability previously existing rendered the workman totally and permanently disabled. In such a situation the employer is responsible only for the disability attributable to the incident of November 1969 and the Fund is responsible for the remainder of the permanent total disability, subject to credit for the amounts awarded on the earlier claim petitions. The court directed a remand to the Division of Workmen's Compensation for allocation of the respective percentages of disability as between the employer and the Fund;
(2) because of the differential between the statutory maximum weekly rates for partial permanent disability ($40.00) and those for total permanent disability (as to this employee, $83.33), the deductions allowable for the earlier awards are to be calculated on the basis of dollars awarded rather than according to the number of weeks for which such awards were granted;
(3) the present award is payable beginning after the payment of the last installment of the previous awards for partial permanent disability, not before.
Paul and the Fund sought certification, which was granted. 65 N.J. 556 (1974). Although Paul's financial stake in the Appellate Division decision extends only to the delay in receipt of current compensation at full total permanent disability rates, see IV, infra, he also assails the decision that the Fund is responsible for any part of the liability of 450 weeks (less credits for previous payments). He maintains that liability therefor is solely the responsibility of the carrier, while that of the Fund will begin at the expiration of that period, for such extended payments as may become due the workman under N.J.S.A. 34:15-12(b) (disability of the workman after the 450 weeks notwithstanding rehabilitation efforts to earn wages equal to those earned at the time of the accident).
The Attorney General on behalf of the Fund argued before the Appellate Division for an affirmance of the judgment
of the Division of Workmen's Compensation relieving the Fund of liability. In his petition here, however, assuming the Fund is liable, he attacks the holding of the Appellate Division that the employer's share of the joint liability is to be measured at the maximum partial disability rate of $40 provided for in N.J.S.A. 34:15-12(c) rather than at the maximum total disability schedule set forth in N.J.S.A. 34:15-12(b).
The initial issue presented for determination is whether the Appellate Division erred in overruling the holding of the Judge of Compensation, in effect, that the permanent total disability following the November 1969 infarction resulted from an aggravation and acceleration by that episode of the previous coronary disability of the workman. If so, it will then be necessary to determine whether, as a matter of law, such a finding of aggravation and acceleration leads to relieving the Fund of liability, as decided by the Judge of Compensation, even though the prior disabilities were compensable.
The Appellate Division was required to affirm the finding of fact mentioned above if that finding could reasonably have been reached on sufficient credible evidence present in the whole record, giving due weight to the expertise in the field of the Judge of Compensation and his opportunity of hearing and seeing the witnesses. De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89 (App. Div.), aff'd o.b., 62 N.J. 581 (1973). Our own review of the record leads us to conclude that application of the stated test called for an affirmance of the trial finding of aggravation and acceleration.
Dr. Saul Lieb, a specialist in internal medicine, was called as an expert witness for Paul. On the basis of the
hospital records, Dr. Lieb testified that Paul had been admitted to the hospital on December 10, 1969 with a final diagnosis of arteriosclerotic heart disease and acute coronary insufficiency. The doctor also stated that the hospital's electrocardiograms indicated that Paul had suffered an acute myocardial infarction on November 25, 1969. Dr. Lieb had initially examined Paul in August 1966, when he estimated his disability from the first coronary to be permanent and to amount to 50% of total. He saw the patient again in August 1966 and on March 23, 1967 after the second and third infarctions, respectively, and had then concluded that Paul was permanently disabled to the extent of 75% of total. Dr. Lieb's subsequent examination on February 27, 1970 led him to a conclusion that Paul was now 100% permanently disabled. The increased disability was attributed to the episode of November 25, 1969. The coumadin poisoning was no factor in the ultimate disability. He also opined that Paul's condition was causally related to his work.
The testimony on aggravation and acceleration was developed on cross-examination of Dr. Lieb on behalf of the Fund and Employers Mutual. While at one point he answered in the affirmative a question as to whether his "diagnosis of coronary insufficiency and probable myocardial infarction" of 1969 "combined with" the pre-existing pathology to cause the man "to be 100% of total", he said Paul's coronary condition had stabilized prior to the last infarction, and he responded in the affirmative to an inquiry whether the "last incident" aggravated the coronary or cardiac disability. He explained that it increased it. He also answered affirmatively an inquiry as to whether the last incident in any way "did aggravate, activate, accelerate any of the previous disabilities from infarctions or insufficiencies that [Paul] suffered". He explained, on further cross-examination: "The heart is one organ; it is not separate. While the incidents were separate, they occurred in the same person in the same organ."
Dr. Sanford Lewis, also a specialist in internal medicine and cardiology, testified for Employers Mutual. As a result of an examination of Paul on July 14, 1970 he concluded that he had arteriosclerotic coronary artery disease with multiple episodes of myocardial infarction and coronary insufficiency. This rendered him disabled to the extent of 75% of total. Dr. Lewis stated that Paul's infarction on November 25, 1969 did not cause him any permanent disability. Rather, the 25% increase in disability since the prior awards of 50% of total was solely attributable to petitioner's increased age. In addition, the doctor was of the opinion that the man was still able to do sedentary work.
Dr. Jack S. York, also a specialist in internal medicine and cardiovascular disease, testified for U.S.F. & G. He examined Paul on November 14, 1967 and on March 22, 1972. Dr. York stated that he was 100% permanently disabled as a result of his medical history of heart trouble. The attack of November 29, 1969 did not aggravate the prior condition but rather added to the already existing problem. He concluded that the patient had no residual effects from the coumadin poisoning.
Judge Saland credited Dr. Lieb's testimony as to the November 1969 incident having aggravated Paul's earlier condition after an intervening period in which he had been a "competent working unit." He rejected the hypotheses of Doctors Lewis and York as "unrealistic and medically improbable." He expressly found that "as a result of the attack in November 1969 [Paul's] coronary disability was aggravated and accelerated to the extent that he is now totally and permanently disabled."
We conclude it was within Judge Saland's province, under the proper limits of the rule of judicial review stated above, to accept the opinion of Dr. Lieb and reject those of the opposing physicians not only as to the extent of Paul's ultimate disability (permanent-total) but also as to whether that ultimate disability resulted from an ...