Breheny v. Essex County

• Decision Date: 14 July 1943
• Citation: 33 A.2d 294
• Parties: BREHENY v. ESSEX COUNTY et al.
• Court: New Jersey Department of Labor-Workmen's Compensation Bureau

33 A.2d 294

BREHENY

v.ESSEX COUNTY et al.

New Jersey Department of Labor-Workmen's Compensation Bureau.

July 14, 1943.

Proceedings under the Workmen's Compensation Act by Patrick Breheny, claimant, opposed by the County of Essex, employer, and Bankers Indemnity Insurance Company, insurer, for increased compensation because of alleged increased incapacity.

Judgment for claimant.

David Roskein, of Newark, for petitioner.

Edwin Joseph O'Brien, of Newark, for respondent.

MEDINETS, Deputy Commissioner.

An employee's claim petition for compensation was filed by Patrick Breheny, petitioner in the above entitled matter, alleging inter alia that his incapacity has increased since the prior adjudication of his claim for compensation on March 15, 1940.

The testimony of petitioner, Patrick Breheny, was taken de bene esse and the stenographic transcript was received in evidence at the time of the hearing, inasmuch as it appears that he was confined to his home and unable to appear in court. The uncontroverted testimony of the petitioner discloses that following the adjudication of this case on March 15, 1940, he remained in the employ of the respondent in the performance of only light duties until the early part of June of that year, when, as a result of his physical condition, he was compelled to cease work completely. Since that time, petitioner has been confined to his home and for the last five months confined to his room under the care of Dr. Mulligan. Although Mrs. Breheny, wife of the petitioner, appeared prepared to testify in support and in corroboration of her husband's testimony, the attorney for the respondent waived formal proof and conceded the factual effect of her proffered testimony.

On behalf of the petitioner, there was adduced the testimony of Dr. Jerome Kaufman, a recognized cardiologist. He had occasion not only to make a complete physical and cardiological examination but also to take electrocardiograms and make other diagnostic tests in order to determine the petitioner's present condition. It was the opinion of this doctor that the petitioner is totally and permanently disabled. From the facts submitted in a hypothetical question based on the evidence adduced at the time of the prior hearing, a study by Dr. Kaufman of the electrocardiograms offered in evidence in that proceeding, and a consideration of his own medical findings on examination and test, this expert was of the opinion that the petitioner's incapacity, to the extent previously determined by this court as resulting from the accident of May 18, 1938, had substantially increased.

It will be noted that the respondent does not presently contend that the petitioner is not totally incapacitated, nor has there been offered any proof, medically or lay, to controvert that fact. The contention of the employer from a medical standpoint appears to be that this complete incapacity is not causally related to the compensable accident. There appeared and testified on behalf of the respondent Dr. Harry A. Jaffe, an outstanding physician and surgeon of New York City, Dr. Joseph Doane, a specialist in internal medicine in New York City and Dr. Leon Lewis, a registered pathologist of Newark, New Jersey. It was the opinion of Dr. Jaffe, based upon the facts set forth in the hypothetical question propounded by the respondent's counsel, that the increase in the petitioner's incapacity was not attributable to the accident of May 18, 1938 or to its sequeli. This physician felt that the petitioner had recovered from the effects of the said accident, the coronary occlusion, and that the symptoms which now disable him are due to the natural progress of his underlying arteriosclerosis. Dr. Jaffe was joined in this view by Dr. Doane, who rendered the opinion that the physical retrogression of the petitioner's condition was the inevitable result of the sclerosis of his cardiac vessels and was not due to the coronary occlusion which has heretofore been judicially determined to be the result of said accident. Dr. Leon Lewis, who had occasion to examine the petitioner at the time of the prior trial hearing, as well as shortly before the present trial, did not in any manner dispute the contention...