Hagerman v. Lewis Lumber Co.

• Decision Date: 05 October 1953
• Docket Number: No. A--1,A--1
• Citation: 99 A.2d 513,13 N.J. 315
• Parties: HAGERMAN v. LEWIS LUMBER CO.
• Court: New Jersey Supreme Court

Page 315

13 N.J. 315

99 A.2d 513

HAGERMAN v. LEWIS LUMBER CO.

No. A--1.

Supreme Court of New Jersey.

Argued Sept. 9, 1953.

Decided Oct. 5, 1953.

Isidor Kalisch, Newark, for appellant (Kalisch and Kalisch, Newark, attorneys).

Alexander Avidan, Newark, for defendant (Thomas F. Shebell, Asbury Park, attorney).

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal is a workman's compensation case which is before the court on certification granted under Rule 1:5--2, now R.R. 1:10--2, on respondent's petition therefor. 12 N.J. 246, 96 A.2d 454 (1953).

The respondent's decedent sustained what was found to be a compensable injury on May 3, 1945, while in the employ of the appellant. The injury was of a cardiac nature and the Bureau made an award for 35% Permanent total disability. The award was paid in full on November 18, 1948, and decedent died on May 14, 1949. It is admitted that the cause of the death was a coronary thrombosis with a myocardial infarction.

On June 23, 1949 the respondent, as executrix of the estate and in her individual capacity, filed two petitions, one seeking an award for increased disability between the time of the original award and the date of death, and the second petition as his widow in which she alleged that the death was due to the compensable accident and sought death benefits and compensation as his sole dependent. After hearing the Bureau found that as of the date of death and prior thereto the defendant was totally and permanently disabled and made an additional award of permanent total disability of 25 3/7 weeks. The Bureau also made an award of compensation to the widow on her second petition based upon the conclusion that the death was causally related to the accident of May 3, 1945. There were appeals from these determinations of the Bureau to the County Court where they were affirmed.

On appeal the Appellate Division reversed the award of 25 3/7 weeks for increased disability on the ground that the Bureau was without jurisdiction to entertain such a petition for the reason that the widow, as executrix of the estate, was not a party to the proceeding when the original award was made. The widow has taken no appeal with respect to this determination of the Appellate Division and the question is therefore not before this court. The Appellate Division affirmed the award to the widow for death benefits as the dependent of the decedent.

The appellant now argues that the respondent-widow failed to provide the necessary competent and legal proof to overcome the presumption rule against her claim as established in the heart cases. Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458 (Sup.Ct.1913); Lohndorf v. Peper Bros. Paint Co., 134 N.J.L. 156, 46 A.2d 439 (Sup.Ct.1946), affirmed 135 N.J.L. 352, 52 A.2d 61 (E. & A. 1947).

The prior determination of the Bureau that the original injury was the result of an accident that arose out of and in the course of the employment, was not appealed from and is dispositive of whether or not that injury was compensable.

The question now before this court is one of fact: Whether that accident and that injury were a contributory cause of death and the medical testimony can necessarily be controlling on such a question. The respondent had the burden of showing that the accident met in the employment was a contributory cause of death. Bryant v. Fissell, supra; Cf. Ten Eleven Corp. v. Brunner, 135 N.J.L. 558, 564, 53 A.2d 350 (Sup.Ct.1947).

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