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Kovach v. General Motors Corp.

Decided: March 6, 1978.

WILLIAM KOVACH, PETITIONER-RESPONDENT,
v.
GENERAL MOTORS CORPORATION, NEW DEPARTURE HYATT BEARINGS DIVISION, RESPONDENT-APPELLANT



Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.

Horn

Respondent General Motors Corporation, employer of petitioner William Kovach, appeals a judgment of the Workers' Compensation Division awarding Kovach compensation for total and permanent disability. Kovach had filed two petitions for compensation. One of the petitions sought compensation for a bronchial disability which allegedly constituted an occupational disease (N.J.S.A. 34:15-30) arising out of and in the course of his employment with respondent. The other petition sought compensation for the effects of a myocardial infarction which allegedly occurred on December 23, 1975 while petitioner was at work, and a stroke (apoplexy) which followed 16 days later. Both petitions were consolidated for hearing. The award of compensation for total and permanent disability was predicated upon the compensation judge's findings of partial total disability of 30% from the residuals of the myocardial infarction, 25% from the residuals of the stroke, 10% neuropsychiatric from anxiety neurosis and 7 1/2% from chronic bronchitis. The judge applied the odd lot doctrine, based on Kovach's age, educational limits and vocational training, and determined that although the partial total disability aggregated 72 1/2%, nevertheless he was totally disabled as a physiological industrial unit. Germain v. Cool-Rite Corp. , 70 N.J. 1, 355 A.2d 642 (1976); Zanchi v. S & K Construction Co. , 124 N.J. Super. 405, 307 A.2d 138 (Cty. Ct. 1971), aff'd o.b. 63 N.J. 331, 307 A.2d 561 (1973).

Respondent contends in this appeal that the judgment was erroneous and should be reversed for two reasons, namely: (1) Kovach failed to establish a causal connection between his work effort and his heart attack, and (2) the compensation judge applied the odd lot doctrine without affording respondent an opportunity to introduce evidence of Kovach's employability. Respondent does not assail the judge's determination of disability from the bronchial impairment.

As to the first contention, respondent relies primarily upon Dwyer v. Ford Motor Co. , 36 N.J. 487, 178 A.2d 161 (1962); Aladits v. Simmons Co. , 47 N.J. 115, 219 A.2d 517 (1966), and Baginsky v. American Smelting and Refining Co. , 88 N.J. Super. 69, 210 A.2d 782 (App. Div. 1965), certif. den. 45 N.J. 588 (1965). Specifically, respondent asserts, in reliance upon these cases, that the opinion of Kovach's medical expert, Dr. Sidney Friedman, was conclusionary and therefore furnished an inadequate foundation for the finding that the cardiac-and cerebral episode disabilities arose out of and in the course of Kovach's employment. We disagree.

In Dwyer the court stated that the "claimant has the burden of showing by a preponderance of the believable evidence that the ordinary work effort or strain in reasonable probability contributed in some material degree to the precipitation, aggravation or acceleration of the existing heart disease * * *." 36 N.J. at 493. The court also stated:

It must be kept in mind that judges of compensation are regarded as experts. Goldklang v. Metropolitan Life Ins. Co. ,

130 N.J. Super. 307, 311 (App. Div. 1974), aff'd o.b. 66 N.J. 7 (1974). We do not read Dwyer as suggesting that a statement of full reasons is a sine qua non in every case. Each case must be decided according to its own facts. The reasons given by an expert witness may be the deciding factor in a close case. The omission of sufficient reasons for his opinion may support the judge's finding that a claimant has failed to establish by the greater weight of the evidence that the effort "was at least contributorily responsible in some material way for the [heart] attack." In Stanley Co. of America v. Hercules Powder Co., supra in the quotation from Dwyer , the court agreed that the trial judge erred in refusing to permit an expert to express his reasons for his opinion. Neither that court nor the Supreme Court on review went any further on this point than to say that the expert's reasons

"The party offering a witness may desire to make plain the strength of the witness' grounds of knowledge and the reasons for trusting his belief. This is a legitimate purpose. * * * the general rule is that the witness may on direct examination state the particular circumstances which legitimately affected his knowledge. * * *" 2 Wigmore on Evidence (3 rd ed. 1940), sec. 655, pp. 759-760.

Specifically on the question here involved,

"An expert witness, like any other witness, may be asked on the direct examination, or may be required, to ...


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