Burkley v. Atlantic City

• Decision Date: 13 June 1961
• Docket Number: No. A--288,A--288
• Parties: Virginia BURKLEY, Petitioner-Appellant, v. ATLANTIC CITY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 160

68 N.J.Super. 160

172 A.2d 1

Virginia BURKLEY, Petitioner-Appellant, v. ATLANTIC CITY, Defendant-Respondent.

No. A--288.

Superior Court of New Jersey, Appellate Division.

Argued May 15, 1961.

Decided June 13, 1961.

Alexander K. Blatt, Atlantic City, for appellant.

Harry Miller, Atlantic City, for respondent.

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

KILKENNY, J.A.D.

This is a workmen's compensation 'heart' case, brought pursuant to R.S. 34:15--7 et seq., N.J.S.A. The Division of Workmen's Compensation made an award of the statutory dependency benefits in favor of the widow and two minor children of the deceased employee. The County Court reversed, set aside the award, and dismissed the claim petition. On this appeal, we must resolve the conflict between the Division and the County Court. There had been an earlier hearing in the Division in this matter, but on appeal to the County Court the case was remanded to the Division for a rehearing because of certain actions by the Director who conducted the first hearing, which do not affect the substance of questions involved in the present appeal.

Frank Burkley, 36 years old, husband of the petitioner and father of their two children, had been employed by the City of Atlantic City as a paid fireman from 1949 to September 2, 1956. On that day, while washing down the walls of a toilet room in the firehouse, pursuant to directions of his captain, Burkley collapsed on the job at about 5:40 P.M. and was rushed therefrom to Atlantic City Hospital, where he was pronounced dead on arrival at 5:55 P.M.

Burkley's tour of duty that day was from 8:00 A.M. to 6:00 P.M. He left home for work that morning at 7:45 A.M. He had been suffering from a cold for about two weeks prior thereto, for which he took aspirin and cold tablets. He was perspiring and 'appeared rather weak' that morning when he left, according to his wife's testimony. The record is barren of any prior medical history, or of any awareness by Burkley of any present or previous heart ailment. He had received no medical attention for the cold or for any cardiac condition. He worked that morning and through the early afternoon at the firehouse in the performance of his duties without incident or complaint of any kind. Classified as a pumper operator, Burkley was required to operate, clean and polish the pumper apparatus, in addition to his general duties as a fireman, such as attending fires, climbing ladders, and the cleaning chores in and about the firehouse.

About 4:45 P.M. Captain McMenamin, decedent's superior, noticed that toilet paper was strewn on the floor of the toilet room in the firehouse. Also, there was some liquid, with the appearance of coca-cola, 'splattered' on the wall of the toilet room 'in several spots,' about eight or nine feet up, running down in streaks toward the floor, and covering an area of three or four feet in width. This portion of the toilet room is partitioned off from the urinals and the rest of the room. There was a window in the room, but it was closed. The wall was constructed of plaster painted yellow and 'rough in spots.' The ceiling was 12 feet high. There was a commode in the toilet room about 20 inches high.

About 4:55 P.M., Captain McMenamin assigned Burkley to clean this toilet room. About 5:40 P.M., as the captain passed the room, he observed Burkley standing on the toilet-seat cover with a cloth in his right hand and with his right arm extended to its fullest length over his head, wiping down the wall. This observation took 'a matter of seconds.' Shortly thereafter a thud was heard and the captain and other firemen ran to the room and found Burkley lying unconscious, face down, on the floor, with his head near the entrance door and his feet towards the toilet. Some perspiration was observed on his forehead, but there was no objective evidence of physical injury.

The walls of the toilet room were infrequently washed and were generally broomed down. In fact, this was a special assignment and not a matter of routine. The captain testified that ordinarily men were not required to stand on the toilet seat and to reach overhead to clean the walls of the toilet room; and, in fact, this was the first time it was done in that way, so far as he knew.

There is no evidence as to precisely when the decedent began the assignment given to him at 4:55 P.M., or precisely how long he was engaged in the work operation, except that we know that he was washing the wall in the manner described by the captain immediately prior to hearing the thud and discovery of Burkley's body lying prone on the floor. However, most of the wall had been cleaned by that time, so that a considerable part, if not all, of the time interval between the assignment at 4:55 P.M. and the collapse at 5:40 P.M. may be inferred to have probably been devoted to this work effort.

At 7:30 P.M., Dr. Petinga, a general practitioner and County Physician, who had performed close to 500 autopsies since 1948, viewed the body and found it to be cyanotic from the neck up. Eighteen hours later he performed an autopsy and reported the cause of death as 'acute coronary occlusion coronary artery disease.' He found 'the coronary arteries were sclerosed throughout with some decrease in lumen size, * * * Just beyond the osteum of the left coronary as it arises from the aorta is a roughened, jagged area of coronary wall and in this plaque is some accumulation of blood (probably early thrombosis).' Testifying for petitioner, in answer to a hypothetical question which incorporated the facts and his own autopsy findings, Dr. Petinga expressed the opinion that the work Burkley was doing at the time was causally connected with his collapse and death. When asked for his reasons, he stated:

'Well, the fact that he climbed on the toilet seat and he was stretching to clean an area above his head, plus the fact that the wall is a roughened surface which required more effort on the part of anyone with this condition to clean, and the fact that the streaks were due to a sirupy liquid which is very hard to remove normally; taking those facts into consideration with the findings on the autopsy, I felt that this act was sufficient enough to cause him to have a fatal coronary.'

Dr. Petinga expressed the view that the work that Burkley was doing was a contributing factor in aggravating or accelerating his pre-existing coronary condition as shown in the autopsy report; that Burkley's exertions and strain while standing on the toilet seat under the circumstances then and there existing were a precipitating factor that made his heart succumb; and that by reason of his coronary condition indicating a narrowing of the arteries, the heart action was speeded up causing a more forceful flow of blood and a greater demand for a blood supply through the coronary arteries. Dr. Petinga excluded the possibility of a coronary earlier in the day because if such had occurred 'it would have shown more evidence on the autopsy than I found. * * * In this way: The coronary occlusion would have been firm, would have been more attached to the coronary vessel and in addition to that he would have had to start complaining of some chest pain because of exertion or the eschemia that is associated with the cutting off of the blood supply, plus the fact that the muscle would have shown to have been depleted of some circulation or nourishment which go along with an occlusion that had been of some period or time element.' Thus Dr. Petinga concluded that the precipitating cause of Burkley's collapse was the exertion expended in cleaning this wall.

Dr. Levi Walker, a specialist in cardiovascular diseases, also testified for petitioner and supported Dr. Petinga's opinion that there was a causal relationship between the work which the decedent was doing immediately prior to his collapse and his sudden heart failure and death. At the first hearing of this matter, Dr. Walker had based his opinion on the assumption that the autopsy report revealed a loosening of the plaque. After the testimony of Dr. Petinga at the second hearing in which it became evident that this assumption was not correct, Dr. Walker persisted in his conclusion that a causal relationship existed between the work effort and the fatal collapse. He found from the ante-mortem accumulation of blood noted in the autopsy report an inference that perhaps 'a blood clot had formed.' He then opined:

'It doesn't make any difference whether the destruction was caused by a blood clot or by a loosening plaque. Anything which obstructs or causes the obstruction of the flow of blood through an already damaged arterio supply to the heart, it would be sufficient to produce this man's condition.'

Dr. Walker conceded that ventricular fibrillation can cause death and from an autopsy standpoint that condition cannot be ascertained pathologically. While testifying that it is entirely 'probable' that this man died of ventricular fibrillation due to impaired condition of his heart muscle, it seems obvious to this court from his overall testimony that the use of the word 'probable' was unintentionally substituted for the word 'possible,' the latter being a more normal idiomatic usage in this context. Dr. Walker's final opinion was that the cause of death was acute myocardial insufficiency caused either by a loosening plaque or a thrombotic episode occurring at the site of the plaque. When the Deputy Director finally put to Dr. Walker what he described as 'the $64 question' as to what was his well considered opinion as to the reasonable probability of Burkley's collapsing when he did, the doctor's answer was:

'My opinion about that, your Honor, is that he was exerting himself at that time to a sufficient degree that he was not getting enough blood supply to his heart muscles to give the adequate nourishment. * * * He had been standing on a toilet seat and he had been...