*1 GARNET CLOSE, PETITIONER-RESPONDENT AND CROSS- APPELLANT, BROS., v. KORDULAK RESPONDENT-AP PELLANT AND CROSS-RESPONDENT. CLOSE, PETITIONER-RESPONDENT, CHARLES HENRY BROS., KORDULAK RESPONDENT-APPELLANT. Arguеd 14, 1964 December Decided June 1965. *2 Mr. H. Gurtis Mea/nor argued cause petitioners-re- Lamb, Blake, spondents cross-appellant (Messrs. Hutch- Dunne, Meanor, inson & attorneys; Mr. of counsel). *3 Mr. William T. McElroy the cause for argued respondent- appellant Pindar, and cross-respondent (Messrs. McElroy, Gonnell & Foley, attorneys; McElroy, counsel; Mr. of Mr. J. Mr. George Kenny and McElroy, on the brief).
The opinion court was delivered Hall, Close, Charles Henry the employee involved in these workmen’s compensation a welder, proceedings, was Bros, who, while working Kordulak aon construction job in Bayоnne, New Jersey, on September 9, 1959, suffered a heart attack. The nature of the attack awas coronary occlu- sion which resulted in a mjmcardial infarction. has It been conceded throughout the incident constituted a compen- injury. sable He never returned to his trade and died from heart failure on 1961. August his lifetime he During filed a petition seeking temporary permanent disability com- pensation after his death his widow commenced the sec- ond of the actions before us for tire asking award of depen- dency benefits. The cases were consolidated for trial.
The issue, fundamental under the principles and guidelines laid down in Ford Dwyer v. Motor 36 N. J. 487, 491-495 , (1962) Inc., v. Kittatinny Lodge, N. J. 139 Schiffres , was (1963) whether the death was causally related to the natural from mere progres resulted rather the accident or of Judge heart disease. sion arteriosclerotic underlying sufficiently was relationship Stahl held causal Compensation died as decedent established, “that the finding petitioner’s heart and the initial to his injury damage result of the unabatedly of health which continued downgrade subsequent ** Court came of his The until time death after de nоvo consideration conclusion on appeal to the same Compensation. record in Division Workmen’s The 34:15-66; 5:3-5(d). R. R. 1:3-13(a), J. S. disability compensation for temporary award was of death of six (less period date the accident to the date Mr. Close was per March and when April weeks during work solder his physician engage light mitted for his death benefits plus ing lamp parts sitting bench) to N. J. A. 34:15-13. thereafter dependents pursuant Contending Division. Appellate employer appealed established, had not been relationship that the causal requisite course, were erroneously it benefits urged, thesis, with it that the position In line took the awarded. attributable to accidental disability permanent property such at estimated injury only partial (its proofs was 35% not disability and that temporary total) his lifetime when the condition extend date within beyond become static. therefrom had resulting A in the case the number depend- second question benefits, share in death assuming propriety ents entitled to *4 coronary for that When the incident aspect. of an award 1959, the had a and wife September employee occurred сhild, event, A sixth after that five conceived children. months his more than two before death. The born a little a children were actually part and all six of his widow of death and each child at the time was then household Both the Division and the under 18 years age. after that the child born the accident was held not Court benefits because dependency they considered that entitled interpretations pertinent sec- statutory prior judicial
593 tion, N. J. S. that as matter of law 34:15-13(g), required based on be determined as relationship date of the accident rather than at the time of death. original The widow from cross-appealed this denial of benefits to child. afterborn
We certified both on after the appeals application filing briefs in the Division and before came Appellate the matter on for R. R. This argument there. 1:10-1A. this -Court in case therefore the same as the occupies position Appellate Division have, namely, would the first tribunal be reviewing yond County Court.
I. matter the causal relation of the accident original to the death almost two later is years essentially question fact. Both the Division of Workmen’s Cоmpensation, after trial, full-blown adversary and the County Court, on de novo record, consideration of the resolved affirm question on atively proofs, in the nature conflicting mostly of medical opinions. Since Russo v. United States Trucking 26 Corp., N. J. Ricciardi 430 v. (1958), Marcalus Manufacturing Co., 26 J.N. it has been (1958), obligatory upon Division, in Appellate the review of factual determinations cases on appeal from Court, the County undertake another independent review and evaluation of the evidence make its own conclusions thereon. in McAllister Board Recеntly, Education, Town J. 56 Kearny, N. we held Busso (1964), and Bicciardi do not make a fourth mandatory factual finding by an Court where appeal judgment the Appellate Division is allowed. We further pointed out that, even with tribunal, to review that respect “those decisions have not L. criticism escaped (13 Rutgers Rev., at pp. 73, 172 (1958)) and have entailed troublesome problems” that “[p]erhaps * * *” reconsidered they J., at p. 58. See v. Johnson, also 42 N. J. 146, State n. 2 We (1964). *5 594 reviewing case, have the same
think that in which we the appeals have if as Division would Appellate obligation it, opportunity furnishes an appropriаte had remained with their doctrine. look at again procedural a full court nor Ricciardi was decided by Neither Russo sit cases. Consolidation and the same did not in both justices mem- remain who justices, of the votes discloses that three Appellate case, felt that of the court in the instant bers fact independent Division is to make new not required of the present The view compensation appeals. vital con- some is that the Russo overlooked majority court and that conclusion contrary siderations in at its arriving now makes it of those considerations in the reappraisal light in error. there was majority apparent Eirst, result on propositions. The Russo rested two former said, under Su- pre-1947 practice court "was case Court in preme reviewing required J., 26 N. evidence.” (Emphasis supplied) to re-evaluate the "no basis for Second, 433. it concluded that there was p. at practice it was the intendment the new an inference that of review on factual matters in workmen’s scope lessen at 434-435. The J.,N. pp. compensation proceedings.” with to this latter in not respect holding occurred oversight to certain provisions giving appropriate recognition subsequent implementation 1947 and thereof. Constitution of of the error therein necessitates a brief sum- Demonstration practice. of the former mary of the 1947 At the time of the Constitution adoption period previously, appeal an extended the then was, statute, Bureau N. Compensation J. S. Workmen’s Pleas 34:15-66, to the Court of Common where the was case on de novo the record made the Bureau. The determined of that court reviewable former Supreme action disсretionary writ certiorari. only by prerogative Court & Federal Dock Dry Shipbuilding Anderson Ct. and relied 1937), quoted Russo, J. L. 55 upon (Sup. J., 434, in first support p. proposition *6 of requirements the old be assumed to have held practice, may it was certiorari on to obligatory compensation cases the weigh evidence and make al independent fact findings, concordant though of the two lower findings tribunals would not be lightly disturbed where there was evidence to support them. This holding was based on section 11 of the Certiorari Act, 2:81-8; L. 1903, 11, R. c. 174, which read in § pertinent part: * * * brought pro- “When writ оf certiorari is to review the * *
ceedings any special statutory *, of tribunal the shall court disputed questions law, inquire determine of as as of and fact well by depositions into the facts taken on notice inor such other manner may according practice as of the the court. testimony tribunal, taken before the board or officer whose may being by party action is reviewed be used and shall be by by deposition court if considered the as it had been taken on * * *” testimony may by any party. notice. Additional be taken (Emphasis supplied) 34:15-66, R. S. section of the appeal workmen’s com law, which stated: pensation herein “Nothing contained shall be construed the jurisdiction as of limiting the supreme court to review of law and fact questions by certiorari.”1
The 1947 Constitution not only gave Court the direc- tion to make rules governing practice in all procedure 1 Although prior Anderson, duty on certiorari com- to find pensation independently consistently facts and anew had not been clearly imposed language opinions, thereafter, of until system spoke obligation positively the new court the courts uniformly. g., Works, E. Gilbеrt v. Gilbert Machine 122 J.N. L. (Sup. 1939) ; 533 Ct. Beerman Public Service Trans v. Co-ordinated port, ; (Sup. 1939) N. J. L. 479 v. 123 Ct. Stetser American Stores ; Co., (E. 1940) Kalman, N. A. v. 124 J. L. 228 & Mixon 133 J. L. N. 1945) ; Breheny (E. County, & A. v. 113 Essex N. J. 134 L. 129 (E. 1946) ; Pipe Foundry & Bodnar v. Florence and Machine 1947), (Sup. (E. 136 N. L. Ct. aff’d N. J. L. & A. J. 15 137 205 Aircraft, 1948) ; (Sup. J. L. McCrae Eastern 244 Ct. not, however, respect 1948). view The same taken with agencies. g., of E. other administrative Cook v. review of Trenton, ; Adjustment, (Sup. 1937) N. J. L. 372 118 Ct. Board of City Newark, 131 Board L. Green v. Commissioners Adjustment City ; 1944) (Sup. Krilov v. Board Ct. 1948). (Sup. Newark, L. Ct. 137 N. J. appel 3, VI, II, upon and conferred
courts, Art. Sec. par. as jurisdiction original to exercise such late tribunals power re on cause of any determinatiоn necessary complete out wiped VI, V, completely but also view, Art. Sec. par. and pro learning ancient writs, with their all the prerogative administration which had hampered cedural intricacies V, 4 pro VI, par. Art. Sec. for so long. in that field justice : vided review, thereof, and, “Prerogative superseded hear- in lieu writs are Court, Superior on terms
ing shall be afforded and relief right, Court, Supreme provided rules of the manner in the except *7 discretionary.” shall be review causes where such in criminal of re the scope 2:81-8, prescribing R. previously quoted, аl change, constitutional with this on certiorari fell view statute books from the formally purged it was not though 2A, January effective in Title not re-enacted until it was 1952. mandates, court promul constitutional
Pursuant to the in workmen’s the practice rules governing gated deter formerly and in matters Court County appeals former, we writs. As to through prerogative mined decision the legislative policy to recognize have continued record de novo on the should be from the Division the appeal in lieu of Procedure R. R. 5:2-5(d). Court. County :81, R. Rule 3 now R. writs was prescribed prerogative statutory proceedings that review of provided 4:88. It was inbe the Appellate Courts shall in the Superior manner in the same as to proceed with the review Division Rule 3 :81-7 as amended divisions. the trial from appeals the final deci R. 4:88-7. Review of 25, 1949, now R. March was directed agency state administrative any action of sion or Division, to the appeal pro the Appellate to be by appeal trial from the divisions. manner as appeals in same ceed is most significant R. R. 4:88-8. It 3:81-8, now Rule Rule 3 :81-13 system, of the new the very beginning from prescribed: R. R. 4:88-13) (now
597 proceedings prerogative “In [in lieu of have writs] Court shall power thereon, independent findings to review the facts and make power may which be such the interests exercised it to extent justice may require.” could be clearer than it intended that Nothing that was not make new and Appellate Division should be required independent of fact in lieu findings appeals prerogative writs statutory and state administrative proceedings held in agencies. Appellate Division so com- uniformly its pensation eases from establishment in 1948 until the deci-
sion in Russo. e. See, Chemical g., v. Calco Divi- Carpenter sion, Co., American 4 N. J. 53 Div. Cyanamid Super. (App. Co., v. Lewis J. 1949); Hagerman Lumber 120 Super. Div. J. (App. affirmed 13 N. 1952), Mewes (1953); Union & Construction 45 N. J. Building Super. (App. Div. 1957), den. 24 N. certif. No (1957). obligation new make fact has un- been judicially imposed derstood to be review Division under requisite Appellate R. R. 4:88 of any other We see neither types proceedings. since 1947 for legal requirement doctrine procedural of Russo nor any sound reason policy why there should three, four, and possibly evaluations of the evi- independent dence and new fact findings workmen’s compensation cаses alone.
The same result is reached another on possible approach adverted to the of by analysis Chief Justice Weintraub in his Russo, J., in 26 N. at 442. concurring opinion See also the p. Ricciardi, J., of Justice in dissenting opinion Francis 458. This on a p. rests different view approach the nature of matter before the on County Court the de novo the from determination the appeal of Division of Workmen’s When that is Compensation. appeal placed the by Legislature, 34:15-66, N. J. and of Court, rule this implementing 5:2-5, in court, R. that tribunal as a sitting the R. case can of аs a becoming judicial thought purely in proceeding the and the judicial department function and judgment of that a in judicial all court as one even respects, though the matter body, a comes from an not judicial to it administrative and of attri albeit which has the many one “gradually acquired Dry butes of a Shipbuilding court” Mulhearn v. Federal has County Dock 2 N. J. The Court 366 (1949). and con the a new to the case to mind heavy obligation bring In determination. independent to reach own scientiously its Court, view, County a the this it is little hard to think that R. R. 4:88-8 a within so is state administrative agency acting, or a “statutory proceed even that the there is appeal perhaps Realisti R. R. 4:88-7. of the nature ing” contemplated novo re in its de is more like that cally, the court’s function If Municipal view of a Court. on the record the judgment County followed, were judgment final approach essentially Court in a matter becomes compensation com in action any strictly legal same as its quality judgment therefrom appeal in that tribunal brought menced or to the general provi would Division under Appellate be to it, R. rather than 2:2-1(b), R. sions governing appeals be R. Thе review would then scope to R. 4:88. pursuant case, 1:5-4 R. non-jury come other R. applicable 2:5, R. R. as re Division by on (b), binding Appellate J., Johnson, supra (42 discussed State cently fully R. R. is also one 158-163). 1:5-4(b) permissive at pp. direction, make new or mandatory rather than power, fact, due to the opportu findings giving regard amended their the witnesses to one who heard nity judge credibility. however, of review conceive, scope
We the same whether Division is Appellate ad from a state it be of as an appeal matter before thought or one from statutory ministrative tribunal agency any ordinary Court legal final judgment new or review the facts make The power action. R. is 1:5-4(b) R. 4:88-13 under amended criteria to determine applicable identical substance. likewise be the he exercised ought when that power Johnson, upon did not expressly pass ques- In we same. *9 tion in relation the made review of factual determinations J., bodies, 1, administrative 42 N. but we now at n. p. the standard to say intervention with govern appellate respect case, thereto is the same as that on an any nonjury in appeal e., i. “whether the hаve been made could findings reasonably record,” reached on sufficient credible in evidence present whole,” “the as a with due considering proofs regard of the one opportunity who heard the witnesses to judge J., their 162, and, in ease of credibility. p. review, with due agency also to the regard expertise agency’s where such is a expertise factor. pertinent the record before us on this basis we do not have
Reviewing Court, doubt that slightest County findings accord Division, with those of the the death here that was accident, related causally werе reached on reasonably record, sufficient credible evidence on the whole that present was not a finding mistaken or unwarranted one and so with, not interfered and that therefore the award benefits based thereon was correct entirely for the moment the (passing question eligibility after-born child). Lest the feel it have employer may been of law prejudiced by as to the of review change scope announced in this we have opinion, also considered the record under the Russo doctrine and our and conclusions on are in аpproach with those of the complete agreement Court.
It is not essential to recount the with evidence great Overall the were particularity. proofs extensive unusually and the complete substance of those offered quality the claimant were especially strong. treating physi cian who cared for Close his hospitalization Mr. during Bayonne immediately following coronary incident testi His fied. his home family physician city Baltimore who had cared for him for who treated many years him from the time of his return from the Bayonne until hospital his death аlso testified. An autopsy performed and the was a witness. The pathologist expert non-treating witnesses, *10 man dur- side, for each had examined the one appeared, who all were records of admissions lifetime. Eull hospital his ing was testi- witnesses. And there lay available to the medical from period the 23-month as to his condition mony during as to the Indeed, dispute was little accident to death. there be- The difference medical facts and underlying chronology. in the opinion tween the rested almost parties completely said, he had expert evidence to as the whether, employer’s resulted recovered from and the death the original episode solely by pro- from about coronary insufficiency brought coronary of the disease of the sclerotic gression preexisting witnesses, arteries, whether, to the claimant’s according in a infarction contributed ma- from the occlusion resulting terial death. to that and the degree progression ensuing no condition deterio-
There is but that Mr. Close’s question never rated and accident. He steadily after the rapidly able job to return to kind of work very light except He accident. six-week about six months after the period suffered four insufficiency, attacks of repeated coronary which, hospitaliza- the terminal including episode, required The no myocardial tion. showed that there had been autopsy 1959 com- infarction from the subsequent resulting occlusion plete descending of the left anterior branch coronary and that death was caused artery congestive heart failure due an of blood for nour- supply insufficient ishment of the heart in- muscle. blood Physiologically, came sufficiency about the continued narrowing arteries caused of the sclerotic coronary progress disease. The felt that the infarction had no employer’s expert real effect on this natural The Baltimore treat- progression. and the claimant’s physician, ing pathologist non-treating all stated that the expert previous substantial unequivocally infarct contributed to the myocardial materially subsequent rapidity sclerotic severity degenerative process, the of coronary attacks and the repeated insufficiency ultimate and terminal heart failure. We are of the acute opinion that are in this regard claimant’s more proofs persuasive we them as fact accept findings. remains whether such question
factual here sufficient to complex ground legal are present right benefits under the principles guide lines laid down in v. Ford Motor Dwyer supra (36 Inc., N. J. 487), Kittatinny Lodge, supra (39 Schiffres We are. find no merit think We 139). they unquestionably medical contention that the claimant’s employer’s *11 made rather than de witnesses mere statements conclusory led to their detail the factors which scribing oрerative conclusions, as these cases. Their testimony required by can we to a Nor clearly explanatory agree high degree. dictates end result here. the em What opposite Schiffres seems to be in this is that ployer really regard urging law, almost as matter of an award of precludes, Schiffres where an who has an under dependency benefits employee, condition, heart suffers an occlusion and infarction and lying dies a considerable of later from failure. period time heart The rationale of that decision was i. e., rathеr the opposite, that there is no automatic relation of a heart death to prior attack, heart but that medical compensable causation to a material and substantial must be to establish degree proved In benefits. the facts were right dependency Schiffres different and the of vastly proofs requisite relationship causation were not there. Here just they are, and in fully an eminently satisfying degree.
II. determined that for Having compensation death is properly we must turn to the issue payable, raised widow’s from the of cross-appeal holdings both lower tribunals that a child conceived and born between the accident and death is to share in death not entitled benefits because is as of date of to be determined the accident. Here again as to which we is proposition recently expressed doubt. Education,
McAllister v. Board Town Kearny, supra of J., 59, at n. (42 p. 1). J. A. section of the law is N. S. pertinent :
34:15-13(g) ‘dependents’ apply “The term or all shall include following dependent upon time who are at deceased occupational disease, or the time accident the occurrence namely: wife, parents, stepparents, grandparents, death, Husband, child, children, stepchildren, grandchildren, esse, posthumous child in niece, sisters, illegitimate children, brothers, sisters, brothers, half half nephew. adopted shall, every particular, Legally con- children conclusively pre- Dependency shall he sidered as natural children. years under 18 as to the widow and natural children sumed decedent’s actually part age household at the decedent’s who were of time * * *” (Emphasis supplied) his death. benefits act provided our original compensation While acci death from a compensable where resulted to dependents of or provisions no definition dent, eligibility it contained 1911, 95, feature was L. c. 12. This relating dependents. § 174, L. c. amendment of the section by added through in N. J. A. the same form as now found substantially 2 in § for the therein as to provision depen 34:15-13(g), ezcept * ** disease.” “at the occurrence occupational dency *12 1945, 74, L. c. after added by occupational was phrase This made compensable. had been diseases amendment, 1913, L. also be noted a further There shоuld added another law. 1, aspect original c. which § in almost identical form in N. J. now incorporated It is where it reads: 34:15-12(e), person of the cause other “In case of the death than the occupational disease, during period payments the for accident paid remaining payments injury, permanent shall to such of provisions dependents are included in the of said section as or her his * * 34:15-13. controlled Wathne v. Midland by felt lower tribunals The Co., N. J. L. & 125 473 Ct. Contracting ( Sup. Construction & v. Federal Dock Shipbuilding Dry Fitzsimmons and 1940), latter, a J. 110 4-3 decision (1950). filed, fol simply Court in which no was opinion dissenting statutory sec Wathne lowed the statement made in “* * * the number mean that tion was to be construed to be determined identity dependents the accident date of * * death arose out of the accident where cases, L., how *.” N. J. 476. Neither of these at p. viz., a child con ever, us, involved the factual situation before who was accident and the death ceived and born between the of his time household at the actually decedent’s part upon by never been passed death. This has precise question an tribunal this State. appellate Wathne, daughter
In involved were dеpendents with and workman, who resided three grandchildren but had him the time of the accident were at upon dependent the time of his to be dependents left household ceased later. benefits his more than two years Dependency death In on the thesis above quoted. were held awarded properly Fitzsimmons, wife children were his and seven employee, About year at the of the accident. time living together family shortly he all support before his death ceased home and never returned. was from the ejected thereafter and children were held entitled to bene- The wife cases the statute con- fits. It be noted that in both may rather than family to award benefits to members strued so as deny them. certainly N. J. is no model clarity S. A. 34:15-13(g) three alternative dates the de forth setting unexplained accident, or “at the time of of dependency: termination disease, or the time of death.” occupational occurrence of accident, or the If the time of occur (Emphasis supplied) involved, is was intended where that situation rence disease absolute, to the time of death is confus to be the rеference indeed, seems Wathne to answer and, superfluous. sought ing of death time had difficulty saying this obvious *13 of entitled to dependents to the ascertainment only reference benefits permanent disability compensation share in unpaid on the death of the employee cause other than the accident or occupational disease to N. pursuant This 34:15-12(e). construction must rest on a of conclusion extremely awkward legislative One would draftsmanship. think that reference therein to benefits dependency section was intended only denominate the general thereby class persons of and, entitled be considered as dependents conversely, 34:15-13, that J. S. A. which with only deals death would not have included phrase “at the dependency time death” to accom relating only modate different subject matter covered section. by another
Be that as it we may, think that the phrase just has considered, mentioned to be insofar as the precise prob lem us concerned, before is of the light subsequent of N. sentence J. S. A. 34:15-13(g) stating “[depend shall be ency as conclusively presumed to the deсedent’s widow and natural children under years who were age part the decedent’s actually household at the of his time That sentence, death.” and particularly the refer concluding ence therein to the time of death, must have been intended to have some At the an is meaning. very least ambiguity created, when it is read in conjunction with the earlier reference to the determination of as dependency time of death. We think a is reasonably possible shall meaning be determined as of the time of death rather than the date insofar accident widow and natural children under actually years part household employee’s at the death time of are concerned. Under the axiomatic principle that the language workmen’s compensation act must liberally construed in favor of the claimant, we think we it that which will meaning, give entitle a child con ceived and born between accident and death to share in which it will death benefits so sorely need reason the death its We parent. cannot conceive of the Legisla but intending anything ture’s that humanitarian result. This issue us precise before disposes we need no go at this time. further *14 judgment Court is affirmed except
the denial of benefits to the after-born child and the matter is remanded to that tribunal for correction of the judgment to award such benefits. J. am I member of (concurring). only
Proctor, present court who joined Russo majority opinion United States Trucking Corp., 430 (1958). Upon Russo, reconsideration of I am convinced that my position that case was erroneous. I therefore subscribe to that fully part opinion case present which overrules the doctrine, Russo as well as the balance of the opinion. — For Chief Justice and Justices Weintraub, affirmance Jacobs, Prancis, Proctor, Hall, Schettxno Haneman —7.
For reversal—Hone.