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Katz v. Township of Howell

Decided: March 18, 1975.

PHILIP KATZ, PETITIONER-RESPONDENT,
v.
TOWNSHIP OF HOWELL, RESPONDENT-APPELLANT AND SECOND INJURY FUND, RESPONDENT-RESPONDENT



For affirmance in part, reversal in part and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Clifford and Judge Conford. Opposed -- None. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned.

Conford

This is an appeal as of right, by virtue of a dissent in the Appellate Division, from a decision by that court (1) affirming a determination of the Division of Workmen's Compensation that petitioner became totally and permanently disabled as a result of a heart attack sustained in the employ of the appellant township but (2) reversing a decision of the Division that the respondent Second Injury Fund ("Fund" hereinafter) was legally responsible to share in the liability for the workmen's compensation award to the petitioner. The Judge of Compensation had found, contrary to the position of the township, that the petitioner's disability was attributable to an incident in the course of his employment as plumbing inspector; but he allocated only 70% of the total permanent disability to an alleged causative work incident of September 24, 1968 and "attributed" the remaining 30% of total disability to certain alleged previous conditions or illnesses. He recommended an award against the Fund for said 30%, and a judgment to that effect was duly entered.

The dissent in the Appellate Division held that such disability as petitioner suffered from after the incident relied upon was a result of the natural progression of his preexisting arteriosclerosis and not attributable to what was thought to be a mere anginal attack, although precipitated by a work episode.

There was evidence that petitioner had an acrimonious dispute with his superior officer on September 24, 1968 over not having reported to work the previous day because of a religious holiday. Petitioner soon thereafter had chest pains and difficulty in breathing. He went home early, saw his family physician, Dr. Zinkin, that evening, and returned to work the next day. The symptoms continued; petitioner had tests in a hospital; and he was later referred by Dr. Zinkin to a heart specialist. He continued to work for the township until June 16, 1969 but not under the supervision of the officer who had upbraided him. His chest and respiratory symptoms reappeared intermittently, and on such occasions he took a prescribed medication. Upon the recommendation of the heart specialist petitioner in September 1969 underwent a type of coronary bypass surgery involving a bilateral mammary artery implant. He did not thereafter return to any form of gainful employment although he runs a small horse-breeding farm.

Prior to the employment incident on September 24, 1968 both petitioner and Dr. Zinkin considered his health to be good. Petitioner had been involved in four preceding accidents in which he had received medical attention. He sustained a cut on the head requiring several stitches in 1954; in a rear-end auto collision in 1958 he sustained contusions and neck and back injuries; while a passenger in a vehicle hit by another auto in 1962 the soft tissue of his left shoulder was damaged; and in 1967 he suffered a ruptured blood vessel in a leg as he fell in attempting to avoid a wasp attack. According to Dr. Zinkin no permanent residual disability was incurred from any of the aforementioned accidents. Petitioner also testified to one other ailment -- diabetes -- apparently unknown to Dr. Zinkin, which had been under control through oral medication since diagnosed in late 1966.

Several medical experts expressed their opinions as to the nature of petitioner's illness and the extent of his disability. Dr. Alex Maron, an expert in industrial medicine,

offered by petitioner, examined him in December 1971. He noted a persistent irregularity in the heart rate and diagnosed the petitioner as afflicted with chronic heart disease manifested by angina pectoris or a thoracic pain coupled with a sense of suffocation. Based on his examination, the facts in the hospital records and Dr. Zinkin's report, the witness maintained that petitioner was totally and permanently disabled. He stated that twenty per cent of the total and permanent disability was of a neuropsychiatric nature emanating from the September 24, 1968 incident. Although he made no evaluation in percentage terms of any cardiac disability, Dr. Maron estimated that a controlled diabetic condition would account for fifteen per cent of the total disability while another twenty per cent (12 I/2% and 7 I/2%) was attributable to back and neck injuries, respectively, sustained in the prior auto accidents.

Dr. Rowland Goodman, a cardiologist who examined petitioner on May 15, 1970, asserted that the electrocardiographic tracing revealed a condition known as diffuse myocardial ischemia, meaning a lack of oxygen to the muscles of the heart caused by arteriosclerosis of the coronary arteries. Dr. Goodman agreed with Dr. Maron that petitioner was 100 per cent totally and permanently disabled as a "working unit" and attributed sixty-five per cent of the total to the cardiac disability. Explaining the cardiac condition physiologically, the witness stated that petitioner had a preexisting arteriosclerotic heart condition advanced to a greater degree than ordinarily by diabetes, but unmanifested in any symptomatology. When an individual so afflicted becomes emotionally tense and nervous, the consequent increase in the heart rate and blood pressure causes, as here, some of the plaque lining the inner coronary artery walls to dislodge or protrude further into the artery. This can result in severe chest pain (i.e., angina) and shortness of breath. There was such a physiological change in petitioner induced by the dispute at work on September 24. His prior cardiovascular condition was aggravated or accelerated. No coronary

infarction or complete blockage of the artery was realized; rather, there was only a coronary insufficiency or partial blockage. Like an infarction, a coronary insufficiency is a single event in the course of the heart disease. By reason thereof, there was damage to the heart muscle, i.e., scarring. Petitioner's diabetic condition was not assessed by the witness as interfering with his employability, but the witness pointed out that a patient with diabetes is not "the same whole man that he is without the condition". Problems can arise with the eyes, the kidneys and the extremities.

The respondent offered the testimony of cardiologist Dr. Sanford Lewis in rebuttal. Though conceding that some mild myocardial damage had occurred, he stressed that the angina merely reflected the underlying arteriosclerotic condition of the arteries. It was a symptom of the coronary insufficiency which in turn manifested the narrowed coronary arteries with which petitioner came to work on the morning of September 24. This coronary insufficiency and the accompanying angina were therefore not attributable to the altercation on that date. There was no change in the heart from what it was before -- these were not diseases with which petitioner suddenly became afflicted, but only symptoms of a progressively worsening arteriosclerosis. The stress of the events of September 24 was the stimulus that produced symptoms and nothing more. In this doctor's opinion, petitioner had only a 33-1/3% partial total disability by reason of the coronary insufficiency, and it was not employment connected.

The treating cardiologist, one Dr. Schiraldi, did not testify although his report was entered in evidence over the objection of the Township. It contains no information not already stated above except for the fact that the patient's prognosis after surgery was "good". Dr. Lemkin, the examining physician for the Fund, concluded that the claimant was totally disabled.

Dr. Zinkin testified that petitioner had always been a "very virily (sic. ? "virile"), strong, very outgoing man who seemed to be fearless * * * When I saw him this day [the day of the heart incident] he was the antithesis of this strong, outward man. He was very unhappy, very worried, very scared, very anxious." Petitioner himself testified that the only reason he had not returned to work since the operation was because of angina pains and not because of the effects of any of his prior accidents. There was also evidence that prior to the heart attack petitioner worked at a horse breeding farm he owned, and he appears to have continued some degree of this activity after the heart operation.

I

Our first appellate task is to resolve the difference between the majority and dissenting judges in the Appellate Division. As noted above, the dissenter was of the view that petitioner's ultimate cardiac condition was not contributed to in any way by the stress incident of September 24, 1968 but that the incident merely evoked a symptom -- anginal pain -- of a pre-existing condition which was no different or worse after the incident than before. In essence, he embraced the thesis advanced by Dr. Lewis. The testimony of Dr. Goodman, however, if credited, supported the concept that the stress incident caused the intrusion into a coronary artery, already narrowed by arteriosclerosis, of a piece of plaque, further narrowing it and inhibiting the blood supply to the heart muscle. This in turn produced the anginal and other symptoms from which the petitioner suffered at that time and thereafter.

The other evidence in the case persuasively established that the operation which petitioner underwent was medically indicated by his condition and a proximate result ...


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