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Reading v. Glen Gery Shale

October 22, 2010

CAROL READING, PETITIONER-RESPONDENT,
v.
GLEN GERY SHALE AND BRICK COMPANY, RESPONDENT-APPELLANT.



On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 2006-16551 and 2006-16552.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 29, 2010

Before Judges Cuff and Fasciale.

In this workers' compensation case, Glen Gery Shale & Brick Company (Glen Gery) appeals from an October 29, 2009 judgment awarding dependency benefits to Carol Reading as a result of her fifty-four year-old husband's death. The primary question is whether Anthony Reading's work effort caused his heart attack in a material way. We affirm the award of dependency benefits, but remand to determine the proper rate.

Anthony Reading worked as a pug mill operator at Glen Gery and participated in the initial phase of making bricks. He enjoyed his job because it was normally not stressful. Usually, the operator stood on a platform and performed a simple task of monitoring equipment mixing water and shale. If the equipment malfunctioned, however, the operator was required to work overtime to make repairs. Overtime work generally involved heavy physical labor.

On Saturday, March 11, 2006, Glen Gery required Anthony to work overtime and repair equipment. While working strenuously in a hot environment, he complained of feeling unwell, suddenly became disoriented, and with the encouragement of a co-worker, returned home because he was unable to do the required work. The next day, Anthony sought assistance at an emergency room and was diagnosed as having a heart attack. He was transferred to another facility where he underwent a cardiac catheterization. He died on March 22, 2006.

Glen Gery contended that Anthony's heart attack was related to his pre-existing health problems -- hypertension, high cholesterol and diabetes -- and that he would have suffered a heart attack that day regardless of what he was doing. Carol Reading acknowledged that Anthony had pre-existing health problems, but argued that the strenuous repair work contributed to his heart attack.

The compensation judge held that Anthony's overtime work contributed in a material way to his heart attack. In reaching that conclusion, the judge found that the work effort was more intense than the normal wear and tear of Anthony's daily living.

On appeal, Glen Gery argues that (1) the finding of causation is not supported by the evidence, and (2) the judge awarded a dependency rate without determining Anthony's actual wages.

Our scope of review is limited. Generally, we are bound to those findings of a compensation judge which "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole," and having consideration for the judge's opportunity to hear witnesses, assess their credibility, and "with due regard to the agency's expertise when such expertise is a pertinent factor." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)), certif. denied, 122 N.J. 372 (1990); see also Brower v. ICT Group, 164 N.J. 367, 376 (2000) ("We are bound by the factual findings of the compensation judge."); Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72-74 (App. Div. 1989) (discussing petitioner's burden and standard of proof and standards governing compensation court decisions and appellate review).

N.J.S.A. 34:15-7.2 governs the standard of proof relating to a claim for dependency benefits as a result of a work-related heart attack. Section 7.2 provides that:

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 ...


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