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Arsi v. Ocean County Road Department

Decided: October 29, 1985.

JOHN ARSI, SR., PETITIONER-RESPONDENT,
v.
OCEAN COUNTY ROAD DEPARTMENT, RESPONDENT-APPELLANT



On appeal from the Division of Workers' Compensation.

King, O'Brien and Simpson. The opinion of the court was delivered by King, P.J.A.D.

King

On this appeal from a judgment in favor of petitioner for total and permanent cardiovascular disability the respondent employer urges that petitioner did not meet his burden of proof under N.J.S.A. 34:15-7.2; L. 1979, c. 283, ยง 3.*fn1 The respondent employer, Ocean County, claims that petitioner did not prove that a "work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant's daily living . . . caused in a material degree the cardiovascular . . . injury . . . resulting therefrom." We have recently reviewed the history and ostensible purpose of this amendment, a part of the so-called "reform act," effective in 1980. See Perno v. Ornstein Fashions, Inc., 196 N.J. Super. 174 (App.Div.1984).

"To generalize, the legislation increased monetary awards for serious injuries but made recovery for lesser injuries more difficult." Id. at 176. Thus, a petitioner is now required to prove that the cardiovascular injury involved substantial effort in excess of the rigors of daily living which effort was job-related

in a material or appreciable degree. We are satisfied that under our scope of review the evidence in this case reasonably supports the judge of compensation's award of total and permanent disability to petitioner. See Close v. Kordulak, 44 N.J. 589 (1965).

The case was sharply contested, both on the factual events and on the medical interpretation to be drawn from them. Petitioner contended that on the morning of February 10, 1982 he suffered a cardiac episode while doing heavy shovelling work on the second half of a double shift which triggered three-vessel coronary by-pass surgery. Respondent asserted that the episode, if indeed it did occur as described by petitioner, involved only a transitory episode of angina pectoris, of little or no consequence to his underlying progressive arteriosclerotic cardiovascular disease.

These are the basic facts. Petitioner, age 62, had worked for Ocean County as a laborer and then as an equipment operator since 1970. His job mostly involved driving a truck, a front-end loader or a mower. On February 9, 1982 he worked his usual 8 a.m. to 4:30 p.m. shift as an equipment operator. He went home, ate dinner, and went to bed at 11 p.m. At about 2 a.m. he received a call to report to work to sand icy roads. He worked from about 2:30 a.m. to 8 a.m. sanding roads. He then resumed his regular shift work at 8 a.m. on February 10. On this particular day this work required him to shovel "coal patch" from the back of a truck to fix potholes. The weather was "pretty cold" and petitioner was tired. The patch and shovel weighed about 16 pounds; the patch was harder to shovel in cold weather. He described the event this way. "I got out, I was right behind the truck, I was cleaning the hole. I was pushing to get the patch out at the truck from behind and had to put pressure. All of a sudden everything went numb. My arms went numb, the pain in my

chest and everything, and I went down." A fellow workman helped petitioner into the truck. He was driven to his foreman, reported the incident and went home. He never returned to work again.

The key to petitioner's case was the testimony of Dr. Melvin C. White, a board-certified cardiologist attending at the Deborah Heart and Lung Center where petitioner went for his triple by-pass surgery. Upon recital of the hypothetical question*fn2 Dr. White was asked if "the described work-effort considering he was doing his regular assigned duties but what I have described to you, alone is that of a substantial event or events in excess of the wear and tear of the petitioner's daily living and in reasonable medical probability, caused in a material and we may say exacerbated or aggravated in a material degree, the cardiac injury which required the treatment he received, including the bypass?" Dr. White answered: "My opinion is that the extended work efforts did exacerbate his cardiac condition" to a "material degree." He then explained his reasons. He said that "with blockages in the coronary arteries as Mr. Arsi suffered from there is a supply and demand relationship between the demands on the heart muscle and the amount of blood that can be supplied to the heart muscle through these blocked arteries." He said that

When the demand on the heart is excessive and it being not supplied through these blocked arteries, then you develop ...


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