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Perno v. Ornstein Fashions Inc.

Decided: September 12, 1984.

JEANETTE PERNO, PETITIONER-RESPONDENT, CROSS-APPELLANT,
v.
ORNSTEIN FASHIONS, INC., RESPONDENT-APPELLANT, CROSS-RESPONDENT



On appeal from the Division of Workers' Compensation.

Sullivan and Judges King and Bilder. The opinion of the court was delivered by King, J.A.D.

King

This workers' compensation appeal concerns the application and construction of N.J.S.A. 34:15-7.2; L. 1979, c. 283, § 3 which states

In any claim for compensation for injury or death from cardiovascular or cerebral vascular causes, the claimant shall prove by a preponderance of the credible evidence that the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant's daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom.

Material degree means an appreciable degree or a degree substantially greater than de minimis.

This section was one part of a 1979 legislative effort to reform our Workers' Compensation Act.

The general purpose of the legislative reform, as expressed in the Joint Statement of the Senate and Assembly Labor, Industry and Professions Committees, was articulated as

This bill is a revision of New Jersey's Workers' Compensation Law and would make available additional dollars for benefits to seriously disabled workers while eliminating, clarifying or tightening awards of compensation based upon minor permanent partial disabilities not related to employment.

This bill would put significantly more money into the hands of the more seriously injured workers while providing genuine reform and meaningful cost containment for New Jersey employers from unjustified workers' compensation costs that are presently among the highest in the nation.

The legislative purposes of these reforms have been specifically recognized and discussed by our Supreme Court in two recent

decisions concerning permanent disability claims which were unrelated to cardiovascular or cerebral vascular causes. See Poswiatowski v. Standard Chlorine Chemical Co., 96 N.J. 321, 328 (1984); Perez v. Pantasote, Inc., 95 N.J. 105, 111-114 (1984). To generalize, the legislation increased monetary awards for serious injuries but made recovery for lesser injuries more difficult.

As to cardiovascular claims the Joint Statement said

The legislation would benefit employers by: . . .

(2) countering the far-reaching effects of Dwyer v. Ford [36 N.J. 487 (1962)] in cardiac claims by requiring that a petitioner prove that the injury or death involved substantial effort or strain which was in excess of the rigors of the claimant's daily living and that the cause of the injury or death was job-related in a material degree; . . .

As we noted in dictum in Williams v. Western Electric, 178 N.J. Super. 571, 579 n. 3 (App.Div.1981), "after 17 years of experience with the Dwyer rule in the heart and cerebral accident cases, the Legislature, in the revision of 1979 (L. 1979, c. 282, § 3, eff. Jan. 10, 1980), swung the pendulum in the opposite direction."

Against this background we examine the issue on this appeal: Was the award of 7 1/2% permanent partial total disability for an angina episode experienced by the petitioner while at work ...


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