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Katz v. Township of Howell

Decided: July 28, 1975.

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



For affirmance in part and reversal in part -- Chief Justice Hughes, 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

The background of this litigation is set forth in Katz v. Township of Howell, 67 N.J. 51 (1975). We there affirmed a holding by the Appellate Division that petitioner's disability from a heart incident was causally attributable to his employment as plumbing inspector by the respondent township and therefore compensable. We withheld a determination as to whether petitioner was permanently and totally disabled after that incident and as to whether, if he was, the Second Injury Fund was liable for a portion of the compensation award. The Judge of Compensation had held the Fund liable for 30% of the award, based on prior disabilities, while the Appellate Division had found the Fund not liable because not satisfied that petitioner was, at the time of the heart incident, suffering from any prior permanent disability to which any portion of the ultimate permanent and total disability might be attributed. N.J.S.A. 34:15-95.

It is settled that in order for liability of the Fund to attach (1) the ultimate condition of the workman must be one of permanent and total disability; (2) the prior disability must have been partial and permanent; and inter alia, (3) the prior condition and the subsequent employment-connected

accident must "in conjunction" result in permanent total disability. Paul v. Baltimore Upholstering Co., 66 N.J. 111, 126 (1974); Katz v. Township of Howell, supra (67 N.J. at 65). An obverse form of the latter thesis is stated in the statutory exemption of Fund liability "if the disability resulting from the injury caused by his last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability within the meaning" of the act. N.J.S.A. 34:15-95(a). We alluded to this provision in the course of our prior opinion herein and intended it to be taken into consideration on the remand in connection with the issue of fact as to causal contribution by the alleged prior conditions to the ultimate and total disability. 67 N.J. at 67.

In our previous consideration of this appeal we expressed dissatisfaction with the nature of the findings of fact in both the Division of Workmen's Compensation and the Appellate Division as to permanent and total disability and as to the permanency of the prior conditions and their causal contribution to the total permanent disability. 67 N.J. at 60, 61, 63, 66-67, 68. We consequently remanded the matter to the Division of Workmen's Compensation for more specific findings on these questions and granted leave to the parties to offer additional or supplemental proofs. Id. at 68. We retained jurisdiction.

On the remand the respondent township offered, over the objection of the Fund, the report of a Dr. Villapiano who examined petitioner April 11, 1975. The doctor was not able to appear at the hearing, and the Judge of Compensation accepted the report for "what it was worth." The objection of the Fund should have been sustained. Our order for remand contemplated further proofs in the normal manner, i.e., by in-court testimony subject to cross-examination. Aside from recitation of history, the report indicated an examination revealing various physical limitations and conditions as to which, along with diabetes mellitus and neurological

deficiencies, the witness "would recommend" a total of 30% "partial total". While we give no weight to the report, as improperly received, it may be noted that it did not purport to express any opinion as to petitioner's cardiovascular condition, and it therefore, for reasons hereinafter to appear, would not in any case be material to the determination we have reached.

The only witness offered at the hearing on remand was Dr. Manuel J. Rowen, a Board-certified internist specializing in cardiology, whose testimony was adduced by the Fund. Dr. Rowen examined petitioner April 8, 1975. He was familiar with his medical history and records. The witness described the subject's cardiac condition as of the time he was hospitalized for surgery in 1969 as "extensive three-vessel disease, which is as sick as you can get when you have coronary artery disease because there are only three main vessels and all these vessels were involved." He said the surgical procedure had not been a success; that the patient "regressed, and it was shown that he evidently had closed off the vessels so that he no longer had the benefit of the surgery * * *. He actually was back to what he was before the surgery." Dr. Rowen classified petitioner's condition as "3-D" on a severity range of 1 to 4, with 4 representing the most disabled (bedridden) patient. In petitioner's case even mild activity is productive of shortness of breath or pain. Such effort was less than one would require for normal routine activity. The petitioner requires nitroglycerin "very frequently" for his chest pain but never achieves complete relief. He has to sleep on two pillows because of shortness of breath.

The doctor described petitioner's diabetes as mild, and controllable with medication. Independent of that condition, he regarded petitioner as 100% disabled "as a working person" from the standpoint of his cardiac status alone, having in mind his age and his customary vocation. The cardiac

condition "was the most and predominant symptom and disease that was ...


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