Jacobs v. Kaplan

• Decision Date: 16 June 1959
• Docket Number: No. A--298,A--298
• Citation: 152 A.2d 145,56 N.J.Super. 157
• Parties: Margaret D. JACOBS, Petitioner-Respondent, v. Jacob S. KAPLAN a/k/a Joseph Kaplan and David Kaplan, Respondents-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 157

56 N.J.Super. 157

152 A.2d 145

Margaret D. JACOBS, Petitioner-Respondent, v. Jacob S. KAPLAN a/k/a Joseph Kaplan and David Kaplan,

Respondents-Appellants.

No. A--298.

Superior Court of New Jersey

Appellate Division.

Argued May 11, 1959.

Decided June 16, 1959.

John W. O'Brien, Newark, for respondents-appellants (O'Brien, Brett & O'Brien Newark, attorneys).

Robert Carluccio, Hoboken, for petitioner-respondent (William P. Taylor, Jersey City, attorney).

Before Judges GAULKIN, SULLIVAN and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

This is a 'heart case' brought under the Workmen's Compensation Act, N.J.S.A. 34:15--1 et seq. The petition was dismissed in the Division, the deputy director holding that petitioner's pre-existing heart disease was not 'in any way accelerated or aggravated or worsened by any of the duties performed by the petitioner in her employment by the respondents.' The County Court reached the opposite conclusion and, in granting compensation, determined that an inference of causal relationship between the work and the cardiac episode emerged from the proofs as the more probable hypothesis. It is from this judgment that appeal is taken.

There is no material dispute concerning the facts. Petitioner, 58 years of age, entered the employment of the respondents on November 2, 1956 and continued in their service until January 28, 1957, when the event occurred which gave rise to this action. Previously she had been employed elsewhere as a cook.

The respondent dentists maintained offices consisting of a seven room suite on the second floor of a building designated as 87 Lafayette Street, Jersey City, N.J. Four of the rooms were occupied by respondents and three were used by petitioner as living quarters. Petitioner was hired to perform custodial duties such as cleaning the offices, mopping the stairway which ascended to the offices from the ground floor and, during the heating season, firing the boiler which was located in respondent's kitchen and provided heat for the entire floor. She was also assigned some additional duties of an entirely sedentary nature including answering telephone calls, taking appointment slips and escorting patients to the waiting room. Plainly, her most laborious task was firing the boiler. From the commencement of her employment until the early part of January she was required to obtain a supply of coal from the basement once daily; and thereafter twice a day. Each trip involved filling two pails and a box. To do this she used a small short handled shovel. Petitioner estimated that when filled the pails each weighed five to seven pounds and contained 'two shovels' of coal, while the box which held 'over two pails of coal' weighed 'in the neighborhood of twenty-five pounds.' She said that she 'had to shovel out high' because of the height of the boarding by which the bin was enclosed. The pails and box when filed were lifted to a dumbwaiter which was about forty inches above floor level and was operated manually. Petitioner testified, too, that she and 'the man upstairs' had to carry coal up two or three days' as a result of the breaking of the rope by which the dumbwaiter was manipulated. However, it does not appear when with relation to January 28th this took place and no mention of this detail is to be found in the hypothetical question which was put to petitioner's medical expert, Dr. Saul Lieb.

The occurrence of January 28, 1957 is described by petitioner thus:

'I had just got done bringing the coal up from the basement and at about 1:15 in the afternoon, after Dr. Kaplan had come in, I then started to mop the stairs and also went in and mopped the hall, and when I was about finished with the hall, I notice then that I had a heart condition: My heart was going real fast and water was running off of me. It was gathering there awkwardly and falling.

'I said to myself, 'I will sit down and rest a few minutes to see what happens.' And I didn't get any better. I did sit down for about fifteen minutes, but I still continued in the same condition. So then I went out in the hall and asked Dr. Kaplan if he would let me use the phone, as they disconnected the phone during the day in our apartment to have it in the office. And he said why did I want to use the phone. I said I would like to call my son, that I was sick. He said, 'Where are you sick at?' I said, 'I have some trouble with my heart.' 'Why,' he said, 'I will connect the phone for you to call your son.'

'He connected the phone for me to call Phil, and I called Phil and he came down. And likewise, he called the doctor for me.'

Later that afternoon she was visited by Dr. Boylan, who incidentally did not appear as witness at the trial. What happened subsequently is of no consequence since no reference was made thereto in the hypothetical question.

Dr. Lieb examined petitioner on January 27, 1958, and respondents' Dr. Jack S. York examined her on January 24 of the same year. They were in substantial agreement with respect to the nature of petitioner's heart malady and were in accord that the heart failure suffered by the petitioner was not preceded by the dramatic occlusion of blood supply which features the great majority of the reported 'heart cases,' but was the end result of a long and losing battle by the organ to compensate for the damaged valves resulting from chronic rheumatic heart disease of long duration.

The hypothesis laid before Dr. Lieb included all of the facts we have recited preceding the happening of January 28, 1957, and there was sought his opinion of the causal relationship between the work duties and such event. Since the answer elicited has great bearing upon our ultimate conclusion, we deem it advisable to set it forth verbatim:

'Based on the findings of my examination, and the facts in the hypothetical question, my opinion would be that, first, This cardiac condition that she has is obviously of long standing and was not primarily caused by her occupation. However, from the facts you have given me, it is my opinion that there was an aggravation of this preexisting cardiac condition by the circumstances of her employment.

'The work that I would anticipate that she did as a cook might very well be within the limits of her cardiovascular reserve. But certainly the job of lifting and going up and down stairs and feeding the furnace, as described in this hypothetical question, would be inadvisable with anyone with her type of heart condition and, obviously, this work did finally break her cardiac compensation and brought on an attack on January 28, 1957. It is my opinion that the type of work That she did during this period of time was the competent, producing cause of aggravating this preexisting heart condition and having it culminate in the heart failure that she finally had on the date of January 28, 1957.'

We have emphasized portions of the answer to bring into focus the theory of work connection advanced by Dr. Lieb, this being that the work performed over the Entire period of employment had the Cumulative effect of bringing on decompensation--the inevitable terminal of this type of heart disease. Our understanding of the doctor's views is confirmed by a reading of the cross-examination:

'Q. I gather your answer was that the work in general that she did over this period of time was too much for her system, is that correct? A. Yes.

'Q. You do not take any one specific--A. There is no one specific incident in this hypothesis. Actually, in my own questioning of the patient, there was no one particular incident. I got the impression that she was doing the type of work that was just too much for her, that's all.'

Succinctly stated, it was Dr. York's opinion that there was no relationship whatever between the disease and the work performed by petitioner.

The County Court laid emphasis on Ciuba v. Irvington Varnish & Insulator Co., 27 N.J. 127, 141 A.2d 761 (1958), in concluding that the petitioner had overcome the presumption that the cardiac episode was the result of the natural progress of heart disease by a 'preponderance of probabilities.' That such a presumption existed long prior to Ciuba, supra, cannot be doubted. See Schlegel v. H. Baron & Co., 130 N.J.L. 611, 34 A.2d 132 (Sup.Ct.1943); Lohndorf v. Peper Bros. Paint Co., 134 N.J.L. 156, 46 A.2d 439 (Sup.Ct.1946). The necessity for petitioner's overcoming this presumption by a preponderance of probabilities was firmly established in our law at the time Ciuba was written See Lohndorf and Schlegel, supra. These principles were expressly re-affirmed in Ciuba.

As we read Ciuba, it has made but one change in the law. It merely relieves a petitioner of proving that the work induced strain which precipitated his cardiac disfunction is Unusual in character and permits recovery although the culpable exertion is a part of the work usually performed. In all other respects the earlier law is left unchanged. As already noted, the presumption that disfunction of the heart is attributable to the natural progress of disease of the organ was reiterated. So, too, did the court recite the principle that while the proof offered need not have the 'attribute of certainty' it must be 'well founded in reason and logic,' mere 'guess or conjecture' not being a sufficient substitute. And again the court pointed out that a 'bare quantitative preponderance is not enough. The evidence must be of such quality as to lead a Reasonably cautious mind to the given conclusion.' (Emphasis ours.) The measure of the weight of the evidence is 'the feeling of probability which it engenders.' Joseph v. Passaic Hospital Ass'n, 26 N.J. 557, 141 A.2d 18, 28 (1958).

However the rejection of the 'unusual strain' doctrine by Ciuba adds considerably to the difficulty of determining whether or not an accident is proved where, as here, it is admitted that Any exertion, whether the result of the work or of the ordinary strains and stresses...