Dwyer v. Ford Motor Co.

PETITIONER-APPELLANT, DWYER, MOTOR FORD v. RUTH COMPANY, RESPONDENT-RESPONDENT. Decided January Argued October Mr. Aaron Gordon the cause argued for petitioner- Gronson, appellant Louis L. Messrs. (Mr. brief; on the Nashel, Gronson, <& Hirschberg, Zorn attorneys).

Mr. G. Enteman Verling the cause for respondent- argued Eolito, respondent Andrew (Mr. counsel). opinion the court was delivered by J. This is a heart death workmen’s compensa-

Eeanois, tion case. The Division of denied Compensation Workmen’s an award; Court and the Division County Appellate affirmed. We granted certification.

Certification allowed the prin- review primarily ciple under which cases, benefits are in heart attack payable and the to make proof nature such cases required them compensable. Co.,

Ciuba v. & Irvington Varnish Insulator J.N. did (1958), away with the need for proof that heart attack was or caused an contributed unusual employ ment effort or strain. That rule was supplanted by doctrine if attack is or caused or con precipitated tributed to stress or strain ordinary of the employ ment, a Thus, accident into compensable comes when being. employee acute, from an or suffering passively pro gressive condition, heart and the quiescent, ordinary routine exertion of his work is too regular much heart, alone, whether the effort irrespective acts or in conjunction or contribution with the weakness induced by disease, or accelerate or precipitate aggravate attack, the or death is resulting disability within the statu There is tory requirement no work coverage. effort excessive the sense unusual or not being It that a usual strain ordinarily enough in. engaged the work was itself associated with too much at that time heart, condition of because of the that such routine effort in combination with the diseased condition of the arises when- produced collapse. Compensability

492

ever the exertion is too man under- required great work, whatever or taking of exertion condi- degree tion of his heart. facts process by which the reasoning are

particular case evaluated be further aided cer may tain fatal result inquiries. Did or attack disabling alone from the inexorable march of the disease? Was it end result connection degenerative process with which the stress was a coincidental simply employment it condition, unrelated in material Has been way? any otherwise, the exertion by evidence, shown or that opinion matter attendant the duties of no how upon employment, strenuous, or no with what how matter other slight as or factors, predisposition such disease pre-existing attack, combined, it be was sufficient to contribute may In where the short, toward the attack or its aggravation? has to the point potentially any ap deteriorated of exertion carries danger precipitating, preciable degree accelerate, a condition as to upon disabling or so acting attack, strain, if which in fact precipi fatal the effort or or attack, the course or to the occurs during tates contributes usual incident of and as or an ordinary employment or is compensable. death work, disability the resulting work the amount of the stress are not lost because Benefits routine duplicated such could might movements effort customary the home or in about activity & Engineering Docks v. Falmouth See Treloar while there. o., Ltd., W. C. C. A. C. 481 B. (1933); C proof because of even to be denied is compensation Nor would have workman happened accident had if the a rela have died within or would disabled totally become his disease. reason of the progress short time tively Co., 64 Idaho Fruit Frank B. Arata v. Woodbury it: puts Dean Larson As 1942). P. 2d 870 Ct. (Sup. probably that, general have would even if the decedent idea is “The compensation any ease, is deemed for died of cancer purposes if, hastening cancer, the cause of death due to a blow employee today dies instead of six months from Work- now.” 1 Compensation Law, p. 12.20, men’s § 175. Essex, See also: Welch v. 6 N. J. 422 County Super. Ct. (Cty. 1949), affirmed 6 N. J. 184 Div. Super. (App. 1950); Inc., Milne Works, v. Atlantic Machine Tool 137 Schoonmaker, N. J. L. 583 Ct. 1948); Voorhees v. (Sup. 86 N. L. J. 500 Ct. (Sup. 1914).

It does not follow from what we have written that a heart is, attack which occurs more, at work without com pensable. work connection as precipitating, aggra The vating factor accelerating appear. must basic idea intended to be conveyed which we is ex (and approve) Clover, pressed very terms in case simple English Co.,& v. Clayton 242, Ltd. A. C. B. W. Hughes (1910) duba, C.C. cited with in both approval at supra, 135, and Hentz v. Janssen L. page Dairy N. J. Corp., 494, 496 & 1939). There, A. Lord Loreburn (E. expressed the test in this fashion: words, “In other did he die the disease alone or from the together, looking broadly? disease and taken at it Look-

ing say, conjectures: broadly, I it and free from over nice Was doing help any it the disease that it or did did the work he was degree?” material the onus of Naturally, connection be establishing tween a heart attack death and the work on the effort rests compensation claimant. The burden has been described in various but be stated ways may in this fashion: concisely Such has claimant the burden of showing by preponder ance of the believable evidence that ordinary work effort or strain in reasonable contributed in some probability material degree precipitation, aggravation accelera and the tion of the disease death therefrom. existing context, In this material “some significance degree” stated with mathematical It means precision. cannot be minimis; than de greater appreciable degree; degree exertion capable means that there was some employment its medically of the attack—of furthering progress. helping We precise legal appreciate difficulty formulating has There been much discussion and agitation by rule. of minimum adoption cardiologists against use medical criteria for witness expert assessing work of causal connection between effort probability such standards uniformly accepted heart attacks. But no McNiece, Heart Disease and The have been See approved. And, ch. 1961) 2(c), p. Law (Prentice-Hall § course, cannot state in advance whether such of the courts standards which legal they criteria would transgress 4, & causality. 119; must determine ch. p. Id. § Moreover, the be in the medical difficulty may whatever as the in common test profession reaching ground of Workmen’s and the Compensation the Division applied, their administer the cannot avoid judiciary obligation has right law. The bestowed the compensation Legislature of for accidental out injury arising benefits monetary scene judicial course of And the employment. in the means coexistence of effective implies existence of the right of it. enforcing a catch just phrase;

The rule outlined above not an a formula to be mouthed simply making it is not assertion of causal connection. con legal affirmative is ordinarily dependent upon and effect of cause clusion causation advanced wit by physician of medical evidence upon of based facts and opinion form nesses But repeat the heart attack. we attending circumstances of reasonably probable contributory assertion the mere cannot justify medical witness connection by work under the situation examination The facts of award. causality by greater must demonstrate totality their this area the reasons evidence. In of credible weight more than the assertion important are assertion for the Co., v. Hercules America Powder Co. Stanley itself. of 1954); Div. reversed on (App. J. Super. 29 N. other 16 N. J. 295 grounds of the (1954). Explanation reactions physiological diseased heart to the ailing work strain in terms of sole or cause and effect contributory must generally be as regarded The facts and indispensable. circumstances the work effort and the surrounding heart attack, the medical as to connection between the opinion two, and the of the from a explanation connection medical viewpoint must coalesce in support finding by of the evidence that the effort greater weight was at least contributorily responsible some material for way attack.

Some of the language running through tribunals which opinions various have had this cause for gives consideration impression proof of specific strain incident work or effort coincidental or im the heart mediately preceding attack is as an regarded essential in the step establishment causality. And whose specialist testimony formed the basis denial of said compensation he would not plainly regard a heart attack as resulting from there employment unless “a stress or strain prior incident to the just onset of initial which is symptom usually pain.” Proof such incident is specific as a matter of required law, although it cannot be doubted evidence of closely work effort followed well as recognized symptoms, such pain, short breath, etc., ness of collapse, with points probative more force a probable relation reasonably between the two events if than were a they separated by period substantial of time. This not say, however, is that mere of time lapse between work effort and heart attack a compels conclusion of lack McNiece, of connection. See ch. supra, 14. 2(b), p. § of Solution the problem depends on the of facts the particular situation considered in the light of the medical opinion adduced for and the of against thesis causal relation. On this an aspect problem important consideration must A single be noted. instance of work effort is not an essential in element a proving causality; succession of such efforts when the work is sufficient followed day over the entire under in such circumstances heart attack such time degree to the of probability thereafter as to demonstrate to the totality of work effort contributed required exists whether right single attack. The to compensation such in proved strain of strains succession than the in material to be exertion part whole or greater Division, The Appellate heart could withstand. ailing Co., J. Florence 64 N. Foundry Super. v. Joy Pipe rule be: correctly stated the (1960), “Thus, during employment, if strain hours of occurs actual produced working hours, resulting symptoms no are until after but * * *, disability, in the form of a heart attack whether * * may *, hemorrhage, perforation an or a cerebral ulcer compensable.” nonetheless be Larson, Dean treatise on Workmen’s Compensation Law, view: applicable likewise states clearly s> “* * ¡n Compensation controlling event is Workmen’s Toy question something to, employee, and since the real done not accident, origin something is this industrial whether crucial, and of manifestation should be accident is the moment 29.22, p. (Emphasis Larson’s) Larson, supra, § immaterial.” add as a only cautionary statement we note To author’s far is immaterial so as manifestation” that the “moment of concerned; is immaterial legal principle value in the factual deciding evidential having the sense of here, also, bemay given of causal relation. Attention issue Co., Steel, & E.B.B.W. Iron Coal 2 All. to Whittle v. Vale 179, 198, E. 29 W. C. C. where Lord R. 1221 B. (1936), Slesser, matter time interval considering Justice death, effort and said: between work degree. entirely question fact “That' seems to me to be might longer if had a much interval have I there been think say: county judge weighed ‘The interval so the learned long I in circumstances I am satisfied that do not think those 497 general principle strain But can the caused the death.’ there be no immediately strain; a man must he has the is die received it question of fact to be decided the and the medical evidence evidence.” Beach, Union the extent that the Loew v. language To of 56 N. J. Div. Jacobs v. Kaplan, Super. 1959) (App. 56 N. J. be Div. considered Super. 1959) may (App. views, to these contrary disapproved. in below to appear opinions

References also the the need for an the mere beyond event or proving happening than employment itself or for effort proving greater stresses strains of ordinary living. import of such tests somewhat Does deceptive. ‘beyond obscure mere mean than routine employment” something greater effort to which the has employee accustomed? Does grown it indicate need some strain prove employment greater than mere at the passive presence place employment? Does suggestion proof must be adduced to show a work effort greater than stress and strain ordinary of living merely duty to show some signify effort than the exertion greater caused or by breathing moving arms, one’s legs body the fashion would they away move when ? routinely work Whatever precise expressions, connotation of those the rule com governing pensability may stated this fashion: If the effort or strain, little, whether great was an the em incident work ployee’s and either alone or in combination disease a material played part causing, to or contributing accel a heart erating attack, attack is compensable. it is entirely

Since clear whether a test proper dimensions was applied earlier case, studies of the feel that we demands justice revaluation record in of our observations as light to the controlling legal rule compensability. determining Decedent, Gerald E. Dwyer, tall, six age feet weighing was married pounds, about and the father of four de- children at time death pendent on April

498 Motor of Eord respondent, had in the employ

He been in factory primarily and years engaged for seven Company, and worker steady he was laboring Apparently work. prior May health enjoyed good he began experience pain May Around the end On his left arm and neck. spread in the which chest widow, the 11, chest became pain June to his according and severe, arm “dead” the hand became his left went The he was admitted to Christ day “numb and cold.” next remained until June 30. where he Hospital, City, Jersey “very at which time he was diagnosis discharge, “arthritis and “angina much was improved,” (rheumatoid)” attending These ailments were listed pectoris.” record in the “order of and physician importance,” on the final condition was “Patient had his note as to with were relieved pains promptly which typical anginal E.CGs were It be noted nitroglycerine. negative.” may examined produced were and electro-cardiograms these at the who testified specialists the Division hearing Lieb, appeared for the Dr. Saul who for parties. petitioner, they said were involvement suggestive myocardial diagnosis coronary would corroborate disease coro- Kaufman, Dr. nary Jerome G. who testified insufficiency. interpret did not them while on respondent, specifically the stand after at them he but did looking say Dwyer suffering coronary sclerosis known insufficiency, as angina pectoris.

After hospital, remained at under leaving Dwyer home the care of a for three weeks cardiologist returning before His work was respondent's plant. factory pursued regularly work, thereafter. On December he apparently after at called the office of the Dr. Herman family physician, his Kaplan, chest, across complaining pain radiating his Electro-cardiograms down left arm. were taken but they said any myocardial damage. did reveal The doctor if taken June electro-cardiograms did show Christ such Hospital damage, opinion However, of it had made a signs disappeared. diagnosis vasodilator coronary insufficiency prescribed pills. 11, 1957, continued when Dwyer to work until February Dr. Kaplan made house visit in to a After response call. this, home until Dwyer stayed 15. The record February is unclear just as to what was that him from kept employ- ment. The sum of Dr. Kaplan’s testimony seems that was chest Dwyer again complaining pains (for he which ordered a continuance but that pills), for until reason home 15 was an staying February upper respiratory infection. event,

In any 15, 1957, on February Dwyer returned to and duties, work in his engaged constantly without further doctor, attention over months until Sunday, 27, 1958. April before lunch on that Shortly day, according wife, his had severe in his and pain chest could hardly breathe; perspiration him; there poured was severe arm, left and the pain hand cold and numb. Dwyer Kaplan, Mrs. called Dr. who prescribed nitroglycerin which pills she obtained from a nearby drug store. These were taken at intervals íot the remainder pills day. During night had Dwyer difficulty sleeping assumed propped-up, partial sitting position bed. Dr. Kaplan came to the house early Monday morning, diagnosed coro- and advised insufficiency nary continuance the pills. It obvious from that testimony had Dwyer improved He did not work considerably. go to on Monday work- (his p. at 3:30 but day began m.) “just stayed home.” Mrs. did not remained in Dwyer sayffie bed that day there- testimony is no the severe chest pain, breathing dif- arm or left and hand ficulty difficulty continued that day. appear Hor does it that he slept other than in normal Monday fashion on night. Tuesday morning,

On although he looked pale and and showed the results of attack, fatigued he felt well enough to want work. The go inference is fully that he considered he had justified sufficiently responded to the medication, occasions, as he had on previous to warrant resuming the employment duties. Mrs. Dr. Dwyer called Kaplan, discussed the and, matter with him she although was not permitted to conversation, recite the it is beyond that the question doctor considered him sufficiently improved to return to work and sanctioned his return. In the doctor’s testimony on direct examination, he said he approved return to the factory but advised against “heavy lifting, heavy pushing, like things that.” On cross-examina- tion, he conceded lack of any independent recollection as to just what advice he gave but said morning he had told Dwyer “all along” to do only light work. Nevertheless, with respect to April on the apparently basis of his general ease, knowledge “Oh, he said: yes, he could go to work.”

Dwyer left for work in the afternoon, lunch and taking the nitroglycerin pills He along. drove his car to the plant, an hour’s drive, picking up some fellow workers on the way. It must be regarded as unlikely that he could or would have driven for that distance if his left arm were painful and the hand numb or if he had the severe chest pain in difficulty which he breathing had experienced on Sunday. In fact, one of the fellow workers who rode in car made the no reference in his testimony any in difficulty operating car, the he did although describe Dwyer as drawn pale, and and he saw fatigued looking; him in put pill his mouth during trip.

One of Dwyer’s usual duties was to “line up” a barrel filled with a chemical substance on a stand three or four feet above the floor. Erom that position the barrel when needed would be on to a pushed machine bonderizing the barrel then on replace machine, when its con tents had been used Because of up. and bulk weight barrel, it had to be lifted workman with a chain block and fall. The block steel and fall was attached and the barrel to the barrel hooks then raised by hand. raised, When it was kept hanging position until then needed, chain the block loosened and was pushed barrel into place. Iiintze, The fellow employee, spoken above, saw Dwyer operation that engage fairly early and asserted that when it was workday finished he looked white, strained, and started to puff, something that he had never done before. The added witness fact Dwyer had handled the movement previously with ease. The added the answer as a portion of was stricken volun tary view, comment. In our was It improper. striking responsive to the and the in question, assuming tended reason for the action was answer that the represented a conclusion which the witness had not been qualified it must be in mind all give, kept conclusions laymen are not objectionable. There are certain matters of opinion which the reason of ordinary person, by everyday knowledge, experience express. See VII judgment qualified Wigmore 113; on Evidence ed. (3d 1940), p. § Conrad, Modern Trial Evidence (1956), p. § conclusion previous A based on observation that a person handled with ease a physical movement of operation involved within type here clearly category. p. an

Around 6:30 m. Hintze saw remove Dwyer empty machine, from the the chain barrel slacken bonderizing fall barrel push filled, the block and into hanging worse At this time looked extra than when tired, he place. work; sack”; had arrived he a “sad looked like on water, asked if he he said there- Shortly needed being yes. truck down aisle, he moved a hand about 350 feet after a filled to his pushed barrel it back working put slower”; were “a His movements lot he walked station. 7:45, he was walker. At slowly, usually fast although eat came, the lunch he did not his lunch or when break he coffee; pill; he took looked nitroglycerin drink he could not on his usual work. carry as though work entailed Part decedent’s of hooks making metal one weighed wire. Each about three-quarters made, 60 had been pounds When 50 or of them pound. of a they were put boxes and carried hand to the point where were they to be used. was observed on two Dwyer occasions that 10:30 such boxes. Around night carrying p. m. he rolled another barrel chemicals 15 or 20 feet to the machine. At this time he looked worse bonderizing than he had previously. home, period work ended at drove midnight. Dwyer four fellow workers with him. were

taking They dropped off at intervals He drove more than along way. slowly usual, was seen to take a As pill trip. during he house, came into the it was obvious that he had severe His wife “in pain. said he was awful She im- pain.” called Dr. unable reach mediately Kaplan and, being him, who took him to the North telephoned police Hudson Hospital.

On admission to the of severe hospital complained which “started about” three hours precordial pains prior to admission. were taken and dis- Electro-cardiograms closed acute occlusion with wall infarc- coronary posterior Death 3:20 tion. occurred at April m. A. minutes after admission.

Two in internal medicine testified on the sub- specialists of causal connection between the work effort on ject April occlusion; acute one for coronary petitioner Their on one for reveals respondent. testimony agreement a basic medical that stress or strain can be principle factor in the cor- contributory existing aggravation also the testimony respondent’s onary insufficiency. (See Beach, in Loew v. supra, p. 103.) Union physician of medical they approached question Consequently, e., i. or strain can from common effort ground, causation of an to an or acceleration existing contribute aggravation Thus, issue the crucial insufficiency. calling coronary Did strain so became: employment expert opinion their the answer to the they And recognized contribute? is, fact, medical it depended one of question effort or strain to nature of the particular reactions and the physiological which was Dwyer subjected which followed its wake. based question in answer to Lieb, hypothetical

Dr. Saul above, said that outlined on the facts substantially April on work effort expended cumulative effect of the heart condi- accelerated Dwyer’s pre-existing aggravated his opinion, In occlusion. coronary and resulted in the tion contributing was “a major activity work the described occlusion. the acute factor” in producing that, starting said conclusion, the doctor In discussing had April Dwyer on continuing April Sunday, on coronary his pre-existing worsening a spontaneous suffered insuf- coronary acute air attack of disease, more specifically that he There was no indication which continued. ficiency, 29. April work on if he had not gone to die of it going but, hazard amount of with it certain an attack carries Such indicated, a can person history own previous as Dwyer’s Re- insufficiency. coronary acute attacks of many survive it this some Kaufman, way: put Dr. physician, spondent’s second, attack, some from the first die from persons live “many years.” and some had improved the acute attack

Dr. Lieb recognized April went to work on Dwyer the time or subsided or shortness pain that the chest was no indication There although days, had the two previous as it persisted breath Dr. That conclusion the attack. he the effects of showed Dr. Kaplan’s permission felt was supported Lieb with Dr. The doctor agreed return to work. Dwyer have should exertion physical work requiring that no Kaplan have would fact, Dwyer in; opined been engaged day. in bed that Such have remained “well advised” to been exertion repeated physical because is advisable inactivity blood, if the heart for demand on the greater puts insufficiency greater from coronary patient suffering accommodated, result would demand, if it could not in an eventuate acute insufficiency increased coronary in this work repeated And case infarction. myocardial him, exertion as described to during day, coupled as the evidence of down work puffing, physical slowing and the progressed, of his worsening appearance, provided “clear indication” that cardiovascular condition Dwyer’s kept interval, the work so that he deteriorating during became a sum, sick man” the time he In Dr. “very went home. Lieb asserted that on total the cumulative history effect of the repeated exertion was inadvisable a (which person who had had previous attacks this type in- coronary was such as the extent sufficiency) to increase of his coronary so as a insufficiency to be in major contributing factor an acute producing myocardial infarction.

Dr. Jerome G. Kaufman took the view. On the contrary basis of the he said a history given, Dwyer sustained severe attack of coronary insufficiency April on which persisted thereafter until his death April on which was due to a myocardial infarction from the attack of resulting prolonged In his insufficiency. opinion, there was no causal relationship between the work and the effort death.

In Dr. Kaufman’s opinion, Dwyer should have remained in bed after the onset of the attack on April 27. He should not have been working the throes of his attack because exertion of kind physical any would a cause greater demand heart for blood. Under such circumstances he might “lift something while it collapse and have a lifting rup- ture of his if heart he had an infarction existent already this or contribute might strain incident and I would * * have only my conscience to bother me But in this instance he ruled out causal any connection between substantial obviously work effort and the fatal attack it because is his belief that order for such connection to exist in any case “there must be stress or strain incident just prior onset of his initial symptom which is usually pain.” For purposes of statement, appraising we must assume that it represents his view aas physician, not expression of what he conceives to be the legal test. Even aas medical concept, poses for the difficulty in the absence further judge elucidation. Does “just not, If what prior” prior? mean time interval immediately marks the outermost boundary acceptable sequence the medical standpoint? Does mean that no concept matter how diseased the heart how great ordinary be, work effort may accept medicine does relation of any cause and between the attack, effect effort and if relevant pain other does not until symptom appear Moreover, after the reaches home? the refer- employee does “a ence to stress or strain incident” indicate that causal connection will not be to exist considered from medical standpoint unless the attack follows after a immediately effort; if single work comes in the train collapse strains, succession of work recognizes medicine no ? whole or causality, part

Apart from these academic medical questions which let judiciary answer, is us look at the qualified of both testimony expert witnesses the light of the con trolling legal test the facts of the specific case before us, in a search the greater weight for of the evidence toas whether the total effort on 29 April reason able a material probability played part in the aggravation acceleration of fatal heart Dwyer’s attack. There is no that he doubt had bad heart he had one of a suc cession of on 27. The April attacks experts agree bed rest was the treatment. required So known and commonly is accepted that course that notice has judicial been taken Co., it. Johnson & v. Aetna Casualty F. Surety 174 308 Tenn. Supp. (D. 1959); Prudential Ins. Co. America Gang, 188, v. 184 Tenn. 197 W. 2d S. 806 Ct. (Sup. 1946). It from plain also their statements that heavy work of any kind for patient who dangerous suffers from cardiac insufficiency, degree danger mounting mathematical to the proportion effort, extent of the as well as the state of advancement and acuteness of the insufficiency. In all of the following eases involving awards of compensation the workman’s heart disease in an was advanced state inor

506 work regular engage he undertook

acute attack when effect was in each opinion exertion. The medical strain physical required that rest was the treatment Hicks, Association v. Electric Power Central hazardous. v. Coleman 1959); Ct. 378, 236 110 2d 351 (Sup. Miss. So. Coker, Ct. 1959); 540 321 2d 310, (Sup. 204 Tenn. S. W. Co., Reynolds & Surety supra; Johnson v. Aetna Casualty Robbins, 230, W. 2d 489 (Sup. Metals v. 231 Ark. 328 S. Co. Co., & Guaranty Fidelity States Ct. Sweat v. United 1959); Co., C., 155; F. Farm D. 169 Goodnite v. Supp. Equipment 106 391, 298, 2d So. 2d 342, 103 2d 104 So. 234 Miss. So. Son, & 383, Ct. Poole v. R. F. Learned 1958); 683 (Sup. Ct. 396, So. 2d 162 362, (Sup. 234 Miss. 103 So. 2d 105 Biscuits, Inc., 719, 2 D.A. 2d Cramer v. Sunshine 1958); Motors N. Y. 2d General 152 S. 375 Div. (App. 1956); Hall, 181, E. 2d 57 App. 91 S. (Ct. v. Ga. Corp. App. Commission, v. 1956); Schilling Forestry State Mississippi 1956); Thompson- 85 So. 2d 562 Ct. 858, (Sup. 226 Miss. E. 2d 725 213, v. 90 Ga. S. Yancey, App. Weinman Co. Kit Co. v. Lumbermen’s Mut. Casualty (Ct. App. 1954); chens, 470, 1950); 59 S. 2d 270 (Ct. App. Ga. E. App. Co., 190 P. 478, Workman v. Johnson Bros. Const. 164 Kan. McNiece, Ct. see also ch. 1948); supra, 2d 863 (Sup. p. § in New

A number of heart attack cases Jersey have claimant spoken duty part the dis to overcome the compensation “presumption” resulted “natural ability physiological or death causes.” first time in seems to have for the expression appeared Co., v. Baron & 130 N. L. 612 Schlegel H. J. (Sup. with Experience Ct. workmen’s cases 1943). compensation has us that the the now convinced intervening years over rule has and arti unnecessary “presumption” imported their trial appel ficial factor into determination both and and late The basic applicable controlling principle, levels. it, is that the already simply person as we have stated seek has burden of statutory benefits the the ing establishing

507 greater the believable evidence that the heart attack weight of caused contributed in material the way by or of inter employment exertion. Addition subsidiary mediate formulas as an antagonistic such the overcome duty threshold to the presumption brings nothing inquiry of way clarification of the of the of nature ultimate burden proof. Rather, the is to obscure the standard tendency time-tested rule convey impression something more than preponderance credible evidence is necessary to prove See v. Rubin Sales causality. Drug Aromando Bros. Co., J. Dalton Super. N. Div. 1957); (App. v. Consolidated Laundries 134 N. J. L. 27 Corp., (Sup. Ct. It must be that a 1946). remembered presumption fact of the character of the under one discussion is emptied all force and probative upon from the case disappears introduction of any proof to contrary. Obviously, if no given situation evidence causal were connection offered the proof burden of would not be and there met could recovery. be no To in such say case that peti tioner has failed to overcome presumption attack was due to natural causes, does not either contribute to the ease clarity or of administration rule. of the basic absent, therefore, Practical utility being the presumption must be eliminated as a factor evaluating weight of evidence. preponderance in the record proof present

establishes that Dwyer’s attack had improved substantially or subsided because of the rest and treatment April and 28. Certainly he felt himself with capable coping the work on Also, his his April awareness of own experience previous attacks return to work there after cannot be overlooked. even if But, he overestimated to withstand the capacity strain, routine employment compensation is not to be denied if strain was too much e., for the heart, weakened i. a material played part attack. v. aggravating Cramer accelerating Sun Biscuits, Larson, 555; 38.64(c), shine p. supra; supra, § McNiece, 38.83, 566; 3, p. p. supra, ch. § § of extreme The of events while at work is sequence for timely Dr. Kaufman’s demand even significance, utilizing strain of effect on the heart after appearance symptoms within earlier, relatively incidents. As has been set forth undertook Dwyer short time after of the inception workday, use by bonderizing barrel in for put heavy position was unusual. He began machine. The effect of this effort before, and he looked which he had not done to puff, was about strained. This same operation engaged this, he 7:45. On doing hour before the lunch at period work; like a than on arrival at tired, looked extra worse Then, sack,” a need for water. “sad and acknowledged drink; nitroglycerin eat he took 7:45, he did not boxes of work, such as carrying After further heavy pill. p. 10:30 50 or 60 around pounds, hooks weighing m. At of chemicals. heavy handled one of the barrels again These than previously. was worse this time appearance of an indicative hours involved are fairly events over the on the ailing work strain adverse effect of the physical heart condi- of the also of gradual worsening heart and reasonableness exertions. The heels of the tion on the Hudson North some support inferences finds these pains severe precordial which reveals that history Hospital finished work. before p. just Dwyer 11:30 around began m., by is also provided significance Further corroborative home his pain he arrived the time testimony immediate hospitalization as to require so desperate occlusion. and acute coronary insufficiency coronary marked are shown of the attack and severity acuteness hours taken in the three pills four nitroglycerin failure of relief. any to give admission before framework in which entire factual Consideration stimu- attack has been presented fatal decedent’s this that the succession probability feeling a strong in us lates distinguished described—as strains single incident followed or immediately other pain symptoms—participated in a material in the way accelera- tion of the attack. We are convinced that the series of exertions so on acted diseased as seriously to join with it to an appreciable in extent the fatal hastening attack. Our emphasis on the total or placed cumulative effect of effort, the work and not on act or any single any single exertion beyond that associated usually work, with the because of the mentioned as uncertainty previously to the underlying concept on which benefits were denied tribunals below.

The circumstance that Dwyer may have gone work from suffering or weakened by a wholly or partially relieved attack of coronary cannot, itself, insufficiency be treated as a bar to compensation. For example, in Co., Johnson v. & Aetna Casualty Surety the work supra, man’s attack in the began before he morning left home to to work. He in go pains had his chest and difficulty breathing departed for the place of his wife’s spite protestations. The attack seemed to ease to some extent on the way anew, but began con worse, tinued to as he get which, in his usual engaged tasks were not as incidentally, laborious as those of Dwyer this He went case. to the because of the dispensary pain, hours, remained there about two felt relieved and returned four About hours later his duty. condition became much worse and he died. The court said: “Any kind exer * * * tion at his work was too much for his heart to its then withstand in grievously impaired condition.” v. United & Co., In Sweat States Fidelity Guaranty suffer began Sweat difficult supra, breathing spells” home from work “smothering returning on Thurs- day’s half work was Priday, only On He day. required. week-end but could not report rested over the on Monday in his of the distress chest. On Tuesday, because spite breathing difficulty, he returned continuing to work He made job. fear of his no complaints losing during after lunch work, but morning laboring shortly and died fell from a bench on which he was suddenly sitting medical testi- almost There was substantial immediately. the work effort was the mony primary contributing cause of was allowed. the death. Compensation Co., v. Bros. on the

In Workman Johnson Const. supra, complain- his came home employee before death evening face was pale of severe in the chest. His ing pain hear- medical witnesses said at the later lips blue. he had suffered an occlusion. said They also ing have to bed because put very slight that he should been a man in that condition He dangerous. activity by as a the next carpenter returned to his regular dead at his of work dropped place day apparently four o’clock in the afternoon. Com- between three and on the basis of medical testimony was allowed pensation had wood decedent been (which that nails into driving fact his contributory be considered to “could doing) “entirely that it was that probable” collapse”; sudden his disease so as to intensified or accelerated such effort the “event death; the work made probably that cause the that it was that possible any quicker”; on perhaps come precipi- at that time “would the exertion of kind any in his death.” factor, or the straw resulting final tating Son,& the showed proof v. R. F. Learned supra, In Poole while Poole Saturday, thrombosis on coronary onset of attack, On the Monday following hunting. was out of work, as a scaler” “log (measurer to log Poole returned day all that The next Poole day. and worked footage) truck- where scaled two to a woodsite jeep in his drove drove 30 miles the sawmill and and then logs loads of later, half hour while A talking three truckloads. scaled suffered throm- foreman, coronary Poole mill with the shortly complained He had before and died. attack bosis which and of discomfort had in his chest “of pain The medical Saturday.” testi- the prior since been present have been put that he should to the effect was mony on bed all conditions Saturday because affecting and heart are system exertion circulatory aggravated by would physical activity produce dangerous complica- tion. Denial benefits statutory attorney-referee, court, Workmen’s Commission Compensation and circuit reversed. Hall, in General Motors v.

Again, the evi Corp. supra, dence showed that Hall’s heart attack around three began in the morning o’clock when he was in bed. He reported at 6:45 A. for work m. and after up two walking flights steps took his usual place assembly line. Very soon thereafter he complained severe smothering his pain chest which was into both arms. He told radiating fellow that had employees pain at 3 a. begun but said to m., one them that it had “eased off” and to another had become He home, intermittent. was taken then hospital where he five succumbed later of days coronary thrombosis. The Court Georgia Appeals said: finding employee, “A is authorized if he had a heart sufficiently go attack at recovered from this attack about daily duties, climbing steps while he suffered another fatal attack.” Robbins,

Reynolds Metals Co. v. another heart supra, death case, reveals that the attack began prior to beginning of work which required in a physical exertion room where the was 20 to 30 temperature degrees hotter than outside. Medical testimony adduced that when the acute attack began, Robbins should have been put to bed that immediately, any exertion would the aggravate condition because “heart tends to work faster when one is or walking taking physical exercise” because there “a is demand greater on the coronary artery.” The testimony showed also that if such patient is put to bed immediately, “would have a far better chance of if surviving” than he engages in physical exertion. the idea again once

All that have said projects we Act Compensation in the Workmen’s administering e., heart, i. of a workman’s the state law does not consider at time it is sub- disease, sound or far gone whether in the criterion determina- effort, as crucial work jected standard heart attack. No tion of his to benefits for right takes an and the employer employee of health required of may of his heart be him he Whatever the condition as is. strain, if con- that strain at the time to work exposure accelerat- materially aggravating to producing tributes We the dif- attack, recognize exists. an ing compensability rule as to given so achieve justice ficulty applying Ordinarily the courts employee. case employer between profession help guidance. must turn to medical same set of facts one discord; But here find on the we in whole or in part; causation finds expert etiological all of the assume, it. must cases another denies We that even work effort though appearing reports, or. factor, medically possible as accepted aggravating strain exist within the may differences of opinion profession honest circumstances, whether, under given particular as to as been related be having causally exertion should considered ultimate in a judicial specific to a heart attack. The decision then, must case, be reached evaluation of through in the the facts conflicting opinions light surrounding are relied the witnesses the basis work effort which as views. The nature of that task is the for their delicate the law must underline so the demand why heavily reason the medical describe the factors which experts operative As Dean have led to their conclusions. McNieee “To says: * * * that the the extent of medical quality testimony the task of courts can be and commissions in improved, of that will legal consequences deciding testimony Law, Heart Disease and the supra, page made easier.” 4.§ For our review of expressed, the reasons the record the rule of law to be satisfies us light applied legal causation to required degree has been a shown by preponderance evidence. Accordingly, the judgment is reversed and the matter is remanded to the Workmen’s Compensation Division of an for entry award. appropriate J.C. We (concurring). granted certification

Weintbaub, in the that we hope could give helpful this guidance I troublesome fear we area. have succeeded.

The law is The clear “accident” is enough. the unex- rather than some external pected injury event, and hence compensation must be awarded if the work in fact caused materially death, or ot accelerated or aggravated disability whether the work effort was or ordinary extraordinary, usual or unusual. is one of At problem proof. one our cases time evidence of unusual stress or

required strain. That require ment perhaps stemmed from the concept the “accident” had to be some event other than It unexpected injury. could, however, have been born that even thought is the though accident, yet when one deals injury nature, diseases of an unusual underlying progressive stress strain should as a be required simply badge verity, want of medical adequate criteria establish or deny between usual effort and the connection or death. disability rate, At we stress any rejected the unusual or strain doctrine Co., in Ciuba Varnish & Irvington v. Insulator 27 N. J. profession medical (1958), trusting could shed the needed. light

I that in heart gather matters there are conflicting theses profession within medical as (1) whether stress or can strain certain precipitate disabling injuries worsen them, criteria what must be met (2) med- establish causal connection when it ically agreed that stress can be a factor. do strain Hence we not have the conven- in which tional situation the basic medical thesis undis- doctors as to merely disagreeing whether puted, facts case causal connection is probable. When there are there as to whether opinion medical schools of

contending the onset or strain and can between stress be connection reach a court cardiac cannot injury, some aggravation the view it first accepts the ease unless particular the facts of course, to and, of possible, medically a connection is incompatible do involves choice between necessarily so medical doctrines. arises, should make that then what court question that the state should approach

choice? One court highest make its the theories and contending decide between medical agree all whether or not. binding upon judges, they choice be trial approach The other would to leave with each This to make selection a medical thesis. judge own plausible seems since the issue is factual analytically Yet this nature. oversimplifies problem.

Eor one fate thing, depend would then litigants upon the hear the identity of the who judge happens case. It would be idle to each has a say that litigant fresh chance to prevail before for the judge, judge given antithetical cases accept could theories successive hardly on the basis of the relative or credi- merely persuasiveness of the Thus bility particular experts who happen appear. cases decided very would be act virtually assign- trial. ment for duty

Still what would upon approach, court novof who must decide the case de county judge And what would be the issue before the Division? Appellate Should each make his own choice of medical appellate judge because it one the doctrine reverse differs so, the each trial made? If views of part judge Division would then be decisive as to cases which Appellate we chance to reach unless should the existence it, accept medical as a basis for certifica- of disagreements upon theory view on factual would tion, in which event our question “law.” become effectively quite such if we are resolve conflicts of depth And among have would to know much than medical we more experts, usual appears record. states Ordinarily expert his thesis there, on from goes without expounding scientific bases for the doctrine to which he More- adheres. over, we obtain only the views of the witnesses who happen in the testify cause. This is a sound hardly way to establish scientific doctrine. binding I am not sure the I have problem discussed exists in case. present The record either revealing way. Mr. was in the Dwyer throes of disabling episode when he went to work and is issue whether his work ma- terially aggravated the illness and thus contributed to his death. Both experts that agreed (1) Mr. Dwyer suffered a severe attack of coronary insufficiency on 37 and April the illness continued into April when he returned to work, and Mr. should (3) Dwyer have bed, been in better to combat the storm. Both further that a agreed attack prolonged coronary could insufficiency produce very fatal course which decedent experienced, and, I both gather, agreed can, that work effort but need not necessarily, worsen that illness. Respondent’s said expert as I understand effect, it, that a before medical expert could find work effort did a play role, baneful it must appear some that effort was specific followed by some sign for otherwise symptom injury, the witness, however would expert, merely guessing. Petitioner’s expert, hand, the other believed “the cumulative effect of repeated a exertion” was major contributing factor the death. referred to In the evidence support, that dur- indicating the work there was a day ing general deterioration of the are condition. We not man’s informed, however, as to which anything whether he found specifically evidenced a to work rather due than to worsening the natural progress alone. disease be that the ultimate opinions well may It these experts doctrinal differences with upon respect hinged to mini- criteria show necessary medically mum that a causal Neither witness was existed. connection interrogated along if those lines. were Perhaps developed profes- were an sion is divided there exten- upon subject theories with the scien- contending sive discourse upon them, I make an choice. tific could informed support record, I think I must start with the On the present agreed a the work effort could have played part, proposition illness, day’s upon work the grievous superimposing I that decedent became the worse probably get feeling Thus I in the result reached majority. for it. concur reaction this my But I appreciate regretfully It is complex help factual can be no another case. product but reaction rather than demonstrable gross When the of causal step-by-step analysis. possibility is relief in all cases connection we cannot accepted, deny decisively because science unable simply dissipate In such blur between circum- possibility probability. can, stances do the best with the they hope must judges truth, and with willingness their decisions square contribution scien- cases whatever succeeding consider offer. tific advances may A one. happy

This for decision basis rough in murky which to an result so leads process all-or-nothing to individual just litigants an area is not either truly scene. It may or interests in the industrial larger to the can us dis- give the medical profession well be until more would help, compromise some positive arbitrary left other This must be to the branches tolerable course. of that remedy which alone can fashion of government quality.

Hanemah, I find myself disagreement J. (dissenting). my colleagues. with

At the outset it be well to some well estab- might repeat principles. lished an

Eor to workmen’s compensation recover employee must that he sustained an caused prove “by accident injury

517 E. 8. and in the course of his employment.” arising out 34:15-1. an when it is the result of

An is caused accident injury an “unlooked for or untoward event which is mishap It is not essential that physical or expected designed.” event. v. Spindler result from an external force or injury J. v. Bollinger Universal Chair 11 N. 34 (1952); Corp., Co., & 512 A. 122 J. L. Wagaraw Bldg. (E. N. Supply Co., 64 N. J. Foundry Super. v. Florence Joy Pipe 1939); 13 Div. 1960). (App. takes employer

Neither is it to dispute subject Plating him, Bober v. Independent an as he finds employee Foods, v. Lambrecht 28 J. 160 Wexler N. Corp., (1958); Snuffy’s Martin v. Div. 64 N. J. 489 Super. (App. 1960); House, 425 Div. nor 1957), 46 N. Super. (App. Steak J. an employment that a condition pre-existing aggravated Varnish Irvington Ciuba v. is compensable, caused accident Co., Lambrecht Wexler v. & 27 N. J. 127 (1958); Insulator Co., Foods, Foundry supra; v. Florence Joy Pipe supra; J. Foundry, Super. A. Brass N. v. Edward Zusi Bucuk 1958). Div. (App. compensation recover on workmen’s an employee For connected prove is not claim he required if the evidence It is sufficient certainty. accident the employment reasonable probability establishes e., i. here injury, contributed proximately caused death. employee’s which caused episode the cardiac Co., & Insulator supra, Tarnish Irvington In Ciuba v. said, at 139: p. the court «* »* evidence, presumptive as a basis for Circumstantial reasoning issues, is defined as in the determination of civil deductive and, therefore, probabilities, preponderance a sufficient ‘a mere Co., Delaware, & W. R. Jackson v. L. R. for decision.’ basis (E. 1933). attribute & A. It need not have the L. 487

J.W. presumption certainty, well founded reason but must be conjecture legal proof. logic; guess for is not a substitute mere or inquiry evidence demonstrates is whether The determinative inference, say, presumption hypothesis is to as a rational offered

518

grounded preponderance probabilities according in a of the experience accepted persuasion common of mankind. The standard probably is that the determination be A based truth. bare quantitative preponderance enough. is not The evidence must be quality reasonably given in such as to lead a cautious mind to the weight feeling conclusion. The measure of the of the evidence is ‘the probability engenders.’ Joseph Hospital of ciation, which it Passaic Asso v. (1958).” 26 N. J. 557 Works, Inc.,

In Gilbert v. Gilbert Machine N. J. L. said, Ct. the court 538: (Sup. 1939) p. “To find from these circumstances that the deceased’s demise arising the result of an accident out of and in em- the course ployment indulge pure conjecture. is to surmise The law places proof petitioner compensation; the burden of on the and it preponderates is not sustained unless the evidence in favor of the hypothesis. e., inference, tendered upon i. That must be a rational based preponderance probabilities according of the to the common experience required probable mankind. It is to be more probable hypothesis possibility with reference to the of the other hypotheses.”

It death presumed disease “injury is the result natural causes, and the onus physiological upon claimant prove by preponderance probabilities that was a cause contributing & or death.” Ciuba v. Varnish injury Irvington Co., Insulator supra.

Heart eases as bases for workmen’s have compensation a troublesome long presented problem only this in all State but of the other as well. The jurisdictions difficulty of such cases has been establishing guide McNiece, See experienced practically every jurisdiction. Law, Heart Disease and the Chs. 3 (1961).

In New with the landmark case of Jersey, commencing N. Bernstein Furniture Co. v. J. L. 500 Kelly, (Sup. N. & Ct. affirmed 115 J. L. 500 A. we 1935), 1935), (E. theories, have run the from “usual strain” gamut of strain,” “unusual and back “usual strain.” See again to McNiece, 381-387. The result has been a con supra, pp. which has confounded the mem- picture fused confusing the alike. since advent of the and bar Even bers of bench Co., & which supra, v. Varnish Insulator Irvington Ciuba rest, doubt appears seemed to put dispute great as the essential exist among practitioners judiciary A consideration compensation. for casual proof required for this obfuscated reasons subject demonstrates a in establishing and the difficulties encountered situation work- firm instance of every alleged doctrine applicable are, many These in part, (1) failure. connected cardiac an between disease,” the distinction (2) varieties of “heart an where a episode perfectly healthy onset of original of an existing and the aggravation had theretofore existed ain disabling eventuates or condition which systemic cardiac medical of the uncertainty terminal episode, (3) or the case of as to the cardiac episode cause profession e., of the whether the effort employment an i. aggravation, whether resulted the seizure or finally employee triggered disease, the doubt (4) from the inexorable progress for are proper subjects event any whether cardiac cases workmen’s compensation. is one of which we are here confronted

The question law—the quantum proof rather than substantive adjective accident, an as above establish occurrence required or death. What defined, which resulted disablement is judice establishing is in the case sub majority doing all which cardiac cases against evidence—a yardstick rule of must be measured. which an external solely

The of an accident involves proof Where, particular difficulty. or event no presents force here, however, alleged as for accident sought, recovery event, than an external a claimant caused other force the performance between must establish causal connection stress or duties injury. is, instance, in such substituted strain of duties far in a event. Thus the more difficult proof force or arm. This heart case than in one fractured involving when it more is realized importance assumes even difficulty that the of claims in heart cases preponderance arises great person not in instances where a previously healthy develops in a cardiac condition work-connected originating inci- dent but rather where a with an person cases already dies, cardiac is disabled existing impairment allegedly from the or effect which his aggravating triggering employ- McNiece, ment work duties the diseased See upon organ. supra, experienced Not too much is p. difficulty the determination of the in a presented claim in- question an volving employment-initiated injury heart but much does arise in connection with difficulty proof of the causal in an relationship aggravation or case triggering latter, nature, because the its involves a by question of con- junctive It that a beyond causes. seems dispute large seg- ment of affected population our is cardiac disorders of one form or another. In a many good there is possibility that the provided, duties occasion and only Stroud, & cause See 2 Stroud episode. Disease, & Treatment Diagnosis Cardiovascular p. 1021 of Circulation, the Heart & (1957), Levy, Disorders pp. 450- Hence the (1957). presumption disability death or from a incident resulting cardiac is the result of natural causes. physiological

Because the inexorable progress of arteriosclerotic disease, a therefrom, heart sufferer will die eventually unless A dies of else the meantime. something prognosis, where heart imminent, a attack is of whether the final seconds, climax will occur within minutes or days, regard- less of what the victim is doing, make. impossible With- out able to thus being myocardium see determine its condition and the of the arteries, condition coronary no physician predict can with any degree of certainty whether a strain, small, given or whether no strain big all, will the final attack in precipitate already diseased heart event, or whether the terminal if occurs, and when it will be due to the primarily nature of the progressive disease. See Platz, Disease, White, Heart ch. 14 Coronary (1957); Heart Disease, p. (1951). Thus cause is cloaked in uncertainty.

It must be remembered that the compensation claimant bears burden of proving happening accident aby preponderance of the believable evidence. This has been so as repeated require often not to citation of authority. a In a case as basic and petitioner, fundamental essential for recovery, ordinarily first to required prove by competent medical testimony there can be connec- tion between and the given stress strain of a onset episode. cardiac It is only this against backdrop layman--used in the sense one without medical training—(cid:127) specific can view the facts and circumstances of the effort expended petitioner conclude whether an accident however, The trier, occurred. does not reach the position evaluating testimony petitioner relating until duties he has first specific employment determined that it is there medically probable for to exist causal connection between effort and the particular type cardiac Where involved. there are two episode diametrically opposed respectable and medical recognized doctrines on this subject, a it follows that must petitioner succeed prove the correct- ness the thesis upon of which he bottoms his ease aby of preponderance the believable evidence. The trial tribunal as well as the appellate tribunal must accept one theory and the other for a claimant reject court, to succeed. The how- ever, is not required embrace the petitioner’s proffered unless it is hypothesis satisfied a fair preponderance of believable testimony experts his state the properly A doctrine. claimant fail applicable may because only the court his rejects proffered theory and embraces that of a defendant but also because when the of testimony expert placed is juxtaposition defendant’s, that of court cannot conclude that the evidence preponderates in favor of either doctrine. then,

Initially, we are confronted with problem of whether a adjudging infarction, myocardial which is the medically be case, can in the instant of death conceded cause a divergence There exertion. caused by physical Boas, point. on this profession in the medical opinion Trauma, p. Resulting Injury Cardiac Effort theories two the merits of Without discussing (1955). the evidence say this will, argument, for the sake of we recognizes which that school in favor of preponderates infarction and myocardial work effort nexus between causal medical experts the two basis that exist. This on the may view. adhered, to that apparently, in this case who testified is next there step first evidential ventured this Having facts, whether, particular under the question presented duties the specific employment between that causal nexus sufficiently has been and the fatal seizure the claimant here cases, we have many in so cardiac demonstrated. As contrary professing honest each experts, intellectually two relationship. medical causal as to the probable opinion cause caution that the conclusion legal brothers My causation, yet of medical evidence upon effect is dependent they respondent’s expert testimony evaluating to his assertion that attribute little credence apparently symptoms followed in short order by work effort specific As causality. test of represents proper attack coronary states, 4: in his above cited at study p. Boas Doctor myocardial “Physical strain, regarded it is to as the cause of if occurring par- specific infarction, at must sudden effort some immediately by symptoms moment, and it must be followed ticular of cardiac disturbance.” asserted: p. Again, produce competent “An of a cause cardiac essential criterion damage symptoms.” must be that it induced immediate at 2 that insuf- p. coronary His also out acute study points an longer, when it for half hour or results persists ficiency, created, The in necrosis of the heart infarct thus muscle. It is for produce if extensive will death. this reason enough, caution, death that all cases infarct indicated of because—(cid:127) “Occasionally history symptoms a careful will that reveal of

myocardial actually infarction commenced before the man went work, only brought light and were accentuated and when he started ** * to work. Under such circumstances the infarction cannot be occurring Id., p. attributed to strain at work.” 7. in the

Evidence instant case that suf- Dwyer indicates fered an acute attack coronary insufficiency Sunday, of on which, if attack in active was still not progress, affecting him when went probability to work Tuesday. real, then, very that the infarct commenced to form as result the acute of nature spontaneous of attack experienced on Sunday.

It was on this basis one that physician professed his belief that the work effort was not competent medical causational factor in Dwyer’s conclusion, death. Such a viewed in the context attack, has pre-existing cardiac responsible Boas, medical See support. ch. cases supra, I do say in the light of the testi contradictory mony of other physician the hypothesis above described is the more I likely. frankly quite my confess evaluate inability to the contradictory of the two testimony recognized cardiological authorities the end that I can say which medical doctrine has been by a proven preponder ance of the believable evidence. This is inso particularly light inability of skilled and nationally recognized to agree authorities either on the medical criteria for estab causation whether lishing causation can even exist in here type episodes I presented. cannot say application of deductive to the two reasoning theses here involved, evidence, evaluated according to the common mankind, experience in favor preponderates of petitioner’s An examination hypothesis. of the reasons and cogency experts, Stanley the respective Co. America v. Hercules Co., 29 Powder N. J. Super. 545, 562 Div. (App. 1954), 524 J. 295 to me serves (1954), other N. grounds

reversed on in equipoise. My background, their doctrines merely to place me with insufficient knowl provide education experience In all respective their theses. assay to intelligently edge if not all many this condition frankness, persists same The causal connection proof the of members of judiciary. a cardiac is de episode duties and between is to if, here, as the court to resort obliged conjecture, ficient hunch in to embrace medical or order guess speculation, In v. probable. Ligenza, which makes such connection thesis Co., Inc., J. 136 N. L. 436 Ct. Foundry (Sup. 1948) White said, L. & A. the court 1948), 137 N. J. 610 (E. affirmed 438-440: at pp. experts agreed previously stated, of all “As the medical are that foregoing existed at the came to trial. conditions the time case question violently They the Parkinson’s on the of whether differ degree incidently greater disease, forms basis of the which causally prosecutor’s disability, is of December related the accident below, by ‘Petitioner’s 1944. As characterized leaivned court ’ say experts say “yes,” respondent’s “no.”

medical question sought are to be estab thus confronted with factual We that, say least, highly speculative testimony is lished disability conjectural. in the It is axiomatic that suffered course employment, arising to an from natural causes unrelated industrial classification, mishap, compensable. is To that must be merit statutory proximate within the of an accident sense result Valley Farms, Inc., 283; (2d) (Macho J. L. 35 A. v. Raritan 131 N. stated, upon petitioner 872), or has the burden is as been prove arising injury of and was a result of an accident out principle employment. of his This is so well established the course require authority. Co., no Freedman v. Essex Chair as to citation 512; compensation (2d) N. An award of J. L. 52 A. 690. upon imagination, conjecture, upon cannot surmise rest equally compatible testimony choice with the evidence. reveals prosecutor unquestionably hypertension, was afflicted arthri with cavity infection, spine, oral chest tis of the an infected as well may arteriosclerosis of an advanced nature. These afflictions as as competent producing been be said to have cause well Syndrome injury prosecutor’s as as the traumatic Parkinson’s well speculate spine The court cannot suffered December 1944. may produced injury have com to which of several causes as plained Works, Inc., employee. Machine Gilbert v. Gilbert 533; said, however, (2d) L. 122 N. J. 6 A. It Syndrome prosecutor afflicted, Parkinson’s which now precipitated by aggravated injury 21st, and the of December may, upon injured employee as Be that the onus still remains the by preponderance probabilities according to his establish a the case of experience to the of Jones v. and mankind. Newark Terminal Trans portation Company, 190; (2d) A. 128 N. J. L. 24 564. We have testimony opinion prose scanned the in vain and are of the that the present cutor herein has failed to sufficient evidence sustain the to proof disease, suffers, of burden the Parkinson’s from which he causally 21, connected with the accident of December 1944.” Co., See Ames v. 1 N. J. 11 Farms (1948). Sheffield I find, therefore, 'would the has plaintiff failed to the prove basic essential element of the probability of the of an happening evidence, accident by preponderance the of and would affirm the Appellate Division.

But aside apart law, and from the question adjective the conclusion majority, works my opinion, change in the basic substantive law and the expands Workmen’s Compensation beyond Act the limits intended the by Legis- lature.

I am mindful fact that Workmen’s Compensation Act is remedial and nature should be liberally and construed, Ciuba & broadly Irvington v. Varnish Insulator Co., v. Universal Chair supra; Spindler Bol Corp., supra; Co., v. linger Wagaraw Bldg. Supply supra, purpose the law is shoulder “to industry expense hazards; incident to the lift to from the public burden those support incapacitated by industry to ultimately * * * pass on consumers of industry such expense.” Co., v. Morris Hermann Forwarding 18 N. J. 197, 198 Co., See Renshaw v. U. & (1955). also S. Pipe Foundry 30 N. J. 465 However, (1959). are in employers surers the lives and health of their employees. The has Legislature not decreed that every injury sustained death every occurring employment must be compensated M erg el v. N. J. employer. Conveyors 14 N. Corp., J. 609 Kream v. Public Service Coord. (1954); Transport, 24 N. J. 432 Nor (1957). of liberal policy construction establish claim. proof required a substitute for the J, Recovery N. can Olesky, (1956).

Bowen v. arising had in those within confines cases only family is no the workman and statute. Sympathy the statute into employees’ which to convert upon basis insurance, opinion which I fear the majority health result for the required is it substitute Neither accomplishes. Law Compensation We are the Workmen’s extending proof. a result limits and intention. Such its beyond original mandate. and not by judicial must originate by legislative fiat nature, is remedial its Act Compensation While the con not, decree, compensation direct should judicial court v. Bowen enactment intention. trary legislative Olesky, supra. a result in denial of my reasoning

1 realize that could be, It well on the other may in heart cases. many recovery of and the hand, development the of time passage demonstrate that much undeserved will knowledge medical under by have been the law as viewed paid will compensation Platz, See, supra, (case 5). for example, the majority. of for compensation the of payment Additionally, question a so far in is of such nature and disability reaching cardiac as whether it as raise serious doubt to1 is fit its effect to The problem has been compensation. for workmen’s subject in Dean Heart Disease McNiece excellently expressed so Law that a of his exact quotation language, (1961) rather than a seems paraphrase, justified. though lengthy, even 110-111: He says, pp. controversy surrounding much “A which underlies of basic issue problem possible is cardiac disorders to the cardiac whether solutions among working truly present question of class their effects they public reality, represent injury, a broad or whether industrial only peripheral relationship problem to workmen’s health compensation. differently, pose Or, the issue somewhat does the unique typical some elements of involve blend of area cardiac phenomenon? compensation social elements of broad case some question, seeking this one must match heart disease an answer to In compensation inquire principles against of law and the traditional logically compensated disability or should death cardiac

whether clear, viewed, an industrial basis. so it becomes first of When readily all, that of the traditional heart disease does fit into one molds, occupational satisfactory proof is no disease. There study occupations more than which the is that some others aware reasons, tend cause heart disease. For this and other cardiac claimants, demonstrates, argued, report as have almost elsewhere they injury exception, sustained an without accidental rather occupational occupational than involving The few successful claims disease. usually cardiacs have been cases heart disease as sub- sidiary recognized occupational to a disease. possible compensation viewpoint, examined from other When distinguish injury, accidental several features cardiac inci- many species from dents other work-connected casualties. While pre-existing rarity compensation law, is disease not a other areas of particularly significant permanent its role is disability in cardiac cases. When employer death results a cardiac incident is generally fully responsible though held even the work-connected event any damage, very damage, would not have caused presence at least little except pre-existing for disease—this on the theory employer familiar Taking that the takes the workman as he finds him. probably approach the workman as finds him one the correct existing precedent. problem, under law and This does not answer the existing question adequate however. more basic is whether law is cope problems presented by with the cardiac disorders. highlighted by The role of cardiac disease the United States the fact that advances in other medical all fields have but eliminated formerly consequence, a number of serious diseases. As a the number average person may reduced, of maladies which the has contract been thereby making possible persons who, afflict disease to years ago, would have victim fallen to other diseases. The increased longevity population naturally of the American to an leads increase degenerative kinds, including in the number affected diseases of all Moreover, improved diagnosis possible cardiac disorders. makes it years might detect cardiac cases which earlier have remained factors, among others, present unknown. These have combined to machinery compensation single complex of workmen’s with a disease which, viewpoint population large, from the of the at accounts for every approximately goodly percentage one out of two deaths and for disability cases. scope problem standpoint from the the national health may gleaned following year 1957, during from the statistics for the approximately out of which one two deaths was caused arterio- hypertension: sclerosis op Cause Death persons:] Arteriosclerosis alone: [Number of Arteriosclerotic heart disease coronary disease) (including 453,840 .............. 33,950 487,790 General arteriosclerosis...................... involving diseases Cardiovascular hypertension: & arteriosclerosis affecting central nervous lesions the Vascular system (primarily (brain) thrombosis cerebral embolism, arteriosclerosis, cerebral due to 188,040 homorrhage) .................. cerebral chronic endocarditis Nonrheumatic 249,280 61,240 degeneration myocardial ............. & other Hypertension: Hypertension with heart disease 72,540 (arteriosclerosis) ........................ 11,170 83,710 Hypertension heart..... without mention of involving arteriosclerosis Total deaths 820,780” hypertension .......................... 112: And again, ¶. may importance course, quantitative for heart disease the “Of special legal On the other

in itself be a sufficient basis for treatment. every may hand, staggering tvorJcmen one out two the fact working days of his life or the end because come to the end problem differing suggests that cardiac is one of this disease degree, compensation kind, from others faced rather than in permanent disability system. Again, high incidence of total may is a factor which serve to dis- death cases the cardiac area tinguish quantitatively important or diseases conditions.” it other (Emphasis supplied) viewpoint, hardly it is conceivable practical From the petitioner case will arise where any testimony will that the work in some not sustain the claim contributed seizure, material to his when is remem- degree especially enunciated, that, under the law as here whenever “the bered point heart has deteriorated to potentially any of exertion carries appreciable degree danger precipi- the condition as upon or so to accelerate tating, acting strain, if attack, fatal the effort or which in fact precipitates attack, during or contributes occurs course of and as an usual ordinary or incident of work, compensable.” death is resulting (Emphasis strain, And whether great supplied) "if effort little, was an incident of the and either employee’s work in alone or combination with disease a material played part attack, in a heart causing, contributing accelerating the attack is As I compensable.” (Emphasis supplied) read the we have now our sanction majority opinion placed effect, on a medical doctrine favorable to the In petitioner. the test of the accidental nature or causal con- changes nection- of the work-connected effort with the injury one of one of This involves more probability possibility. than a a of semantics. There is distinct difference question in the connotation of these words. The difference in concepts is more than a shade a An degree. now employee may recover for the fortuitous occurrence of cardiac episode while at work rather home, than at or even upon returning home, condition, if his from his though arising not employ- ment, was so bad that he should have remained bed patient rather than to have work in the first gone to instance. Thus he recover where the can the occasion rather than the cause. Every employment some requires effort “whether or little.” Even the bare great maintenance effort heart. I am of life Thus requires disposed adduced, who, evidence the claimant say, by work, was the throes of already before going death, seizure which culminated his died as result of work effort rather than because of the progress inexorable To me it seems indisputable attack. that with the advent of this decision we have health engrafted insurance upon Compensation feature Act not cardiac but only disease case. every I am also with the impressed the workman dangers to rule attendant upon adopted by majority, broadening the base for Under this recovery. decision both clerk has an sedentary duties who advanced performing condition disease well as a of cardiac as navvy performing most labors who has had physically exhausting prior no diseased cardiac can recover. history, Conceivably, recovery may be “an effort than greater had for the stresses and strains [no] at the presence and for “mere living,” passive

of ordinary is a Whether an self-insurer employer of place employment.” dis- the increase in or is insurance by compensation covered will him from cardiac affect payments episodes or death ability additional compensation payments financially by requiring to Industry’s reaction premiums. increased insurance be minimize cases well expense may added cardiac an individual with employ expense by refusing the employment to terminate deficiency known cardiac at at suffered, an has whether home employee of who industrial, The work, a cardiac economic episode. such action impact fraught danger, of is sociological when it is noted that “one out of two especially every end of life workmen come his or to the end of may McNiece, of cardiac disease. working days” his because White, ch. 23. also Levy, See supra; supra, supra, Stroud, & 1-31, 2 Stroud pp. supra, p. The workman has suffered a cardiac even episode who mild and still a useful though even could live though life, become Eor totally could productive unemployable. is a result or remote. It is a such speculative presently of under our doctrine pressing problem existing compensation LXXXIV, N. J. disability. for cardiac See Yol. payments L. Workmen’s Com- p. J. No. Larson’s (1961); The Law 567 be intensified problem may pensation (1952). earning under the The of opinion majority. capacity heart diseased would then be reduced employees point where it could enforced idleness evaporate. imposed income, worker destroy ambitious will his upon willing and his while not self-respect delaying his dignity slightest. terminal in the episode in- questions public I am belief that policy are for the whose Legislature, opportunity by way volved examine scientific hearing to bases of of public as medical schools to causation and thought doctrinal extension of impact compensation to evaluate than that of the It for the judiciary. far Legis- greater lature to decide whether to extend Act, the Compensation health adopt insurance legislation or to leave matters in siatu quo ante. J.,C. in result.

Weintbatjb, concurring For reversal—Chief Justice and Justices Weintkaub, and Schettino—6. Jacobs, Ebancis, Peoctoe, Hall For Haneman—1. affirmance—Justice THE VIVERS, IN MATTER OF PAUL A. AN ATTORNEY AT LAW OF THE STATE OF NEW JERSEY.

Argued February 6, Decided February

Case Details

Case Name: Dwyer v. Ford Motor Co.

Court Name: Supreme Court of New Jersey

Date Published: Jan 22, 1962

Citation: 178 A.2d 161

Court Abbreviation: N.J.