Greenfarb v. Arre

• Decision Date: 05 July 1960
• Docket Number: No. A--271,A--271
• Citation: Greenfarb v. Arre, 62 N.J.Super. 420, 163 A.2d 173 (N.J. Super. App. Div. 1960)
• Parties: Harry GREENFARB, by his widow, Sarah Greenfarb, Petitioner-Appellant, v. Assunta ARRE t/a Italian Tasty Crust Bakery, Respondent-Respondent. Sarah GREENFARB, Petitioner-Appellant, v. Assunta ARRE t/a Italian Tasty Crust Bakery and Fidelity Casualty Company of New York, Respondents-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 420

62 N.J.Super. 420

163 A.2d 173

Harry GREENFARB, by his widow, Sarah Greenfarb, Petitioner-Appellant, v. Assunta ARRE t/a Italian Tasty Crust Bakery, Respondent-Respondent.

Sarah GREENFARB, Petitioner-Appellant, v. Assunta ARRE t/a Italian Tasty Crust Bakery and Fidelity

Casualty Company of New York, Respondents-Respondents.

No. A--271.

Superior Court of New Jersey Appellate Division.

Argued March 14, 1960.

Decided July 5, 1960.

Seymour B. Jacobs, Newark, for appellant (Balk & Jacobs, Newark, attorneys; Seymour B. Jacobs, Newark, on the brief).

Isidor Kalisch, Newark, for respondent.

Before Judges GOLDMANN, CONFORD and HENEMAN.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Petitioner appeals from a County Court judgment dismissing her dependency claim petition as well as the claim petitions filed by her husband in his lifetime.

Harry Greenfarb, a baker in respondent's employ, filed two compensation claim petitions on July 20, 1951. The first alleged that he was injured on April 15, 1951 when he tripped over a handtruck while carrying a carton of jelly tins and fell; the second, that he was injured on April 14, 1951 while lifting a 300-pound piece of dough. Both petitions specified 'Injuries to body, internal injury, heart, left inguinal hernia, abdomen and nervous system.' The two accidents allegedly occurred on the same night workshift.

Greenfarb died January 4, 1952. On April 4, 1953 his widow filed a dependency claim petition in conjunction with the two just mentioned. For unexplained reasons the petitions were not heard until January 1959, when all three were consolidated and heard by the deputy director.

Petitioner testified that when her husband left for work the evening of April 14, 1951 he 'was fine' and 'looked wonderful.' She was alarmed when he returned home in a taxicab at about 5:45 A.M. the next morning, a Sunday looking ill. He did not eat breakfast, as was his usual habit, but went straight to bed. Petitioner called Dr. Henry L. Kuperman, who arrived about 10 A.M. After examining defendant he ordered him taken to a hospital by ambulance. Greenfarb was hospitalized until May 10, 1951, when he returned home. He never went back to work.

Decedent's married daughter, Ann Isaacs, who lived with her parents, testified that when her father came home from work the morning of April 15, 'he was very ill; he was in pain; he had difficulty in breathing' and 'he would bend over to help himself in breathing, to catch his breath.' Thereafter 'he wasn't the same * * *. He couldn't do a thing. He just didn't live the life he lived before.' She also testified, without objection, that she had phoned respondent Mrs. Arre on Sunday afternoon and told her that decedent was quite ill, was being taken to the hospital, and would not be to work that night; 'that he had come home ill; he was hurt on the job.'

Irving Isaacs, Ann's husband, said that he, too, had spoken to Mrs. Arre when he went to the bakery the next morning, Monday, to pick up decedent's clothes. He told her and a man who was with her that decedent had suffered a heart attack while lifting a heavy object.

Dr. Kuperman, a general practitioner, testified that Greenfarb had been his patient since September 1948, when he treated him for a bronchial asthma condition. On July 21, 1949 he admitted decedent to a hospital for chest pains. Electrocardiograms and the subsequent clinical history revealed an acute coronary thrombosis, anteriolateral in nature, and more accurately described on cross-examination as an acute myocardial infarction due to arteriosclerotic coronary thrombosis. Decedent remained in the hospital until August 8 and returned to work October 22, 1949. On November 26, 1949 he saw Dr. Kuperman for bursitis of the left shoulder, which was treated for more than a month. On April 3, 1950 decedent visited him complaining of obstipation, and on October 10, 1950 for an upper respiratory infection. There were also two general checkups on March 11 and June 26, 1950. On none of the visits following decedent's return to work did the doctor observe any complaints referable to the heart, or any condition indicating that work was interdicted.

The doctor then testified as follows, reading from the hospital record and history he had obtained from decedent:

'On the night before admission at about 10:30 p.m. he lifted a large piece of dough weighing about 300 pounds with the help of another baker at the Patsy Arre Bakery, 128 8th Avenue. Immediately after this, he felt pain from the left inguinal region up to the left anterior chest and down the left arm. This pain was severe and persistent, but the patient continued to work. Several hours after the onset, he developed pain in his upper back across the shoulders and felt very weak. He finished his work at about 6:00 A.M. and returned home. Shortly after arriving home, he went to bed, but could not sleep because of pain in left anterior chest. He went to the bathroom and on attempting to have a bowel movement, became very weak and dizzy and almost fainted. He had to be assisted back to bed and pain became worse. Call for a physician was then made. Electrocardiogram was taken and hospitalization was advised. He was given a hypodermic injection of demerol for the relief of pain.'

The electrocardiogram indicated an acute coronary thrombosis, later diagnosed as an acute myocardial infarction due to arteriosclerotic coronary thrombosis, the infarction being posterolateral. On December 29, 1951 Dr. Kuperman advised his patient to seek only a sedentary type of occupation. Greenfarb expired suddenly while at home in bed on January 4, 1952, due to an acute myocardial infarction.

In response to a hypothetical question embodying the facts contained in the history he had obtained from decedent, Dr. Kuperman testified that in his opinion a causal relation existed between the lifting of the 300 pounds of dough, on the one hand, and the coronary thrombosis and, ultimately, the death, on the other.

In the course of Dr. Kuperman's testimony respondent vigorously objected to any testimony or reference in the hospital history as to how the alleged accident happened. Counsel for petitioner argued that such proof was admissible under Bober v. Independent Plating Corp., 28 N.J. 160, 145 A.2d 463 (1958). The deputy director reserved decision until the close of the case.

Dr. Saul Lieb, an internist, testifying in response to a hypothetical question like the one addressed to Dr. Kuperman, said that in his opinion there was a causal relationship between decedent's lifting of the large piece of dough and his consequent heart disability and ultimate death. Although the 1949 and 1951 infarctions involved different areas, one on the front and the other on the back of the heart, the matter was academic because the heart had been weakened by the first attack and made more susceptible to the effects of any effort.

At the close of petitioner's case respondent moved to dismiss the petitions because an accident had not been proved, the testimony of the doctor and the history in the hospital record being inadmissible to show an accident, citing Andricsak v. National Fireproofing Corp., 3 N.J. 466, 70 A.2d 750 (1950). Petitioner relied upon the Bober decision. The deputy director, recognizing that the history was the crux of the matter, again reserved decision and denied the motion.

Respondent then called her expert witness, Dr. Leff, but after a short recess withdrew the offer to put him on the stand and rested upon the theory that the history given Dr. Kuperman and the hospital record, insofar as they referred to the accident, were inadmissible. Her motion for dismissal of the petitions was once more denied.

The deputy director, relying on the Bober case, held that the history given the attending physician and also the history contained in the hospital record were admissible. Accordingly, he entered judgments awarding temporary disability as well as dependency benefits. (Compensation was erroneously computed on the basis of a $30 rate rather than $25, the maximum fixed by the statute in existence in 1951, R.S. 34:15--13, N.J.S.A. Petitioner agrees that the compensation should have been calculated on the basis of the latter figure.)

On appeal, the County Court judge correctly noted that apart from Dr. Kuperman's testimony 'regarding the statement relating to cause made by the decedent which was incorporated in the hospital history sheet,' there was no other evidence in the record which, 'by a preponderance of the probabilities, established that a compensable injury occurred on the evening of April 14, 1951, or morning of April 15, 1951.' He concluded that the histories were not admissible, and reversed.

The county judge noted that the general rule in New Jersey prior to the Bober case was that histories were admissible insofar as they were 'necessary for the proper diagnosis and treatment of the injury complained of, such as symptoms, feelings and conditions,' but 'those portions of the history dealing with the alleged cause of injury or the place of its occurrence' were not admissible, citing State v. Gruich, 96 N.J.L. 202, 114 A. 547 (E. & A. 1921); Helminsky v. Ford Motor Co., 111 N.J.L. 369, 168 A. 420 (E. & A. 1933); Andricsak v. National Fireproofing Corp., above, 3 N.J. 466, 70 A.2d 750 (1950); and Gilligan v. International Paper Co., 24 N.J. 230, 131 A.2d 503 (1957). He held that the Bober case was clearly distinguishable because it was concerned with a doctor's history of an allergy patient: 'Probing into the environmental and other factors in one's life may be extremely essential toward a proper diagnosis and treatment for an allergy patient and yet not be as to a heart patient.' Following this guarded observation he said:

'* * * Furthermore, a patient suffering from a condition such as allergy, who may be subjected to a deep probing into his history for diagnosis and treatment, is...