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Elliott Kominsky v. Kominsky & Company and Second Injury Fund of the State of New Jersey

May 4, 2011

ELLIOTT KOMINSKY, PETITIONER-APPELLANT,
v.
KOMINSKY & COMPANY AND SECOND INJURY FUND OF THE STATE OF NEW JERSEY, RESPONDENTS-RESPONDENTS.



On appeal from the New Jersey Department of Labor, Division of Worker's Compensation, No. 2003-6924.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 19, 2011

Before Judges Graves and Messano.

Petitioner Elliott Kominsky appeals from the final orders of the Department of Labor and Workforce Development, Division of Workers' Compensation (the Division), dismissing his petitions for benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (the WCA), and from the Second Injury Fund, N.J.S.A. 34:15-95 (the Fund). Petitioner contends that the Workers' Compensation judge erred in evaluating the testimony adduced at trial and applied the wrong legal standard to his claims. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

The facts adduced at the hearing before the judge revealed the following. In August 1995, after finishing a ten-kilometer race in Red Bank, petitioner "experienced what [he] thought was indigestion." In fact, he had suffered a massive heart attack. At the time, petitioner was forty-five years old, healthy and physically active. He was taken to Jersey Shore Medical Center (Jersey Shore), and placed under the care of John S. Clemente, M.D., a cardiologist. According to Clemente, petitioner was "essentially dying" at the time; Clemente performed a life-saving cardiac catheterization and angioplasty. Clemente determined that petitioner "suffered an anterior wall myocardial infarction in the distribution of the left anterior descending artery," which was 95 to 98% blocked.

The heart attack came as a surprise to petitioner who maintained a healthy diet, did not smoke and abstained from alcohol. Since 1980, he had consistently run "5 miles a day, four, five, six times a week." His prior medical history was unremarkable and revealed no indication of heart disease.

At the time of the heart attack, petitioner was a partner in his father's accounting firm, Kominsky & Company. He "was running the show" at the time, managing an office consisting of three CPAs, three other accountants and additional staff. Petitioner testified that he worked fifty to sixty hours a week during non-tax season and upwards of 100 hours a week during tax season.

After the heart attack, petitioner did not return to work for three weeks, but resumed full supervisory responsibilities for the firm in early 1996. In the interim, Clemente prescribed various medications, monitored petitioner's condition through diagnostic tests and ordered cardiac rehabilitation. Petitioner also underwent psychological counseling to help him relax and slow down because he had a "type triple A personality."

Beginning in 1999, Kominsky & Company were retained by a retinue of new, larger clients. Each presented new demands upon petitioner's time and effort, and he was soon working nearly as many hours as he had before the heart attack.

Clemente continued to regularly evaluate petitioner. Although Clemente believed petitioner was initially "doing well," in 1997 and 1998 he noticed a "[d]rop in cardiac output, increase in left ventricular size, decrease in exercise capacity, and . . . with increased stress load every once in a while[,] [petitioner's] electrical system would not be as stable as [Clemente] would [have] like[d] it to be." Annual cardiac catheterizations were also performed.

In June 2000, after visiting a client in New York City, petitioner "started sweating profusely, dry heaving, [and] having chest pains" on the bus ride back to his office. He arranged to have an ambulance meet him when he exited the bus in Union and was transported to Jersey Shore. Clemente performed another catheterization, which revealed that petitioner had suffered "two blocked arteries," which Clemente treated with angioplasties and the insertion of a stent in one of the arteries.

Petitioner quickly returned to work, and, by December 2000, was working fifty to sixty hours a week, increasing to between eighty and ninety hours a week in January 2001. He attributed this to the need to service his clients. In addition to the technical work, petitioner continued to manage the day-to-day operations of his practice.

In early 2001, petitioner began "getting angina attacks almost on a daily basis if not multiple angina attacks on a multiple basis"; he visited his physicians thirteen times within three months. In March 2001, Clemente told petitioner that he had "two more years to live if [he] didn't quit working because work was killing [him]." Petitioner sought buyers for his practice. He described this period of time as physically and emotionally difficult because he was concerned about possible death, and he did not wish to relinquish relationships with his clients. Ultimately, a sale of the practice was finalized, and petitioner's last day of work was June 29, 2001.

Clemente continued to treat petitioner, but his symptoms were "getting progressively worse." Plaque formed in plaintiff's arteries, he developed an aneurysm, and "blood clots in his heart put[] him at risk for a stroke." Another angioplasty with the insertion of a stent was performed in April 2004; a pacemaker and defibrillator were implanted in June 2004; a battery was replaced in April 2005; and a biventricular device replaced the pacemaker and defibrillator in May 2007. Clemente placed petitioner on the standby list for a heart transplant.

On March 3, 2003, petitioner filed a claim with the Division seeking benefits under the WCA. On September 2, 2004, he filed a petition seeking benefits from the Fund. The matter was tried on various dates between May 30, 2007 and November 5, 2008.

Petitioner testified about his deteriorating health, the demands of his work and the extensive hours devoted to the profession, as outlined above. On cross-examination, petitioner acknowledged that he had "[b]asically the same job duties" before and after the 1995 heart attack. Petitioner described his emotional attachment to his work:

I loved what I did. I loved my clients. I loved the respect that I had as a professional, and I didn't want to leave it. I absolutely didn't want to leave it, and it just took more tests and aggravation and more pain until [Clemente] ...


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