Rivers v. American Radiator & Standard Sanitary Corp... Same

• Citation: 48 A.2d 311
• Parties: RIVERS v. AMERICAN RADIATOR & STANDARD SANITARY CORPORATION. SAME v. EAST COAST SHIPYARDS, Inc.
• Decision Date: 26 July 1946
• Court: New Jersey Court of Common Pleas

48 A.2d 311

RIVERS

v.AMERICAN RADIATOR & STANDARD SANITARY CORPORATION.

SAME

v.EAST COAST SHIPYARDS, Inc.

Court of Common Pleas of New Jersey, Hudson County.

July 26, 1946.

Appeal from Workmen's Compensation Bureau.

Two workmen's compensation proceedings, one by Alex Rivers, employee, opposed by American Radiator & Standard Sanitary Corporation, employer, for injuries, and the other by Janie Rivers, administratrix, etc., of Alex Rivers, deceased, opposed by East Coast Shipyards, Inc., employer, for the death of Alex Rivers, deceased. From adverse judgment in the proceeding for injuries, Alex Rivers appeals and from judgment awarding compensation to Janie Rivers, administratrix, etc., of Alex Rivers, deceased, in the proceeding for death, East Coast Shipyards, Inc., employer, appeals.

Decision in accordance with opinion.

Joseph A. Lipman, of Bayonne (Aaron Gordon, of Jersey City, of counsel), with petitioners.

Cox & Walburg, of Newark, for defendant American Radiator & Standard Sanitary Corporation.

James J. Skeffington, of Newark, for defendant East Coast Shipyards, Inc.

DREWEN, Judge.

In the Bureau the two cases entitled as above were, for convenience and by consent of counsel, tried together. Each, however, presents a separate and independent issue and so they were dealt with upon the hearing.

The petitioner Alex Rivers, now deceased, filed his claim petition against American Radiator & Standard Sanitary Corporation under date of April 20, 1944. The petition states the nature of the claimed accident and injury as follows: ‘Injured heart and heart muscles as a result of nature of work being performed on that day,’ that is, on October 16, 1943.

While the latter petition was pending and on May 8, 1944, Rivers, who had been out of his former employment for several months, went to work for East Coast Shipyards, Inc., as a painter, and three days later met his death while so engaged. Claim petition was filed against the latter company by his widow and administratrix Janie Rivers. The accident and injury are alleged as follows: ‘While scraping rust from the side or hull of a ship on the way, decedent collapsed.’ He ‘died immediately.’ The date of death was May 11, 1944.

The facts relevant to the claim of Rivers against the Radiator Corporation are these: He entered the employ of that company on November 27, 1922; it was terminated on October 26, 1943. Throughout that entire period he was continued at the same work. He drove a gas-powered truck between a metal pile in the plant yard and the cupola building where the metal was melted down. The distance between these two points of operation was short. The workman's function was exclusively that of truck driver. He had no part either in the loading or unloading of his truck. It was loaded by crane operation and unloaded at the furnace by a crew of men stationed there for the purpose. As one witness described it, the workman went ‘from inside to outside.’ There is a statement in the testimony that during a working day the workman trucked forty charges to the furnace, making eighty separate trips in all. The record does not indicate that during his entire twenty years of employment petitioner lost any time by reason of illness or injury, save only that in 1941 he was out from May 24th to June 9th with grippe. The last day he worked was October 26, 1943, when he was on a night shift. At 6:16 a. m. he ‘punched out’ saying that he was ‘not feeling well’ and that ‘he did not feel like working.’ As his widow describes it: ‘He got sick with a cold and we had the doctors to come in.’ Under a company rule, after three days' absence from work because of illness, an employee was required to submit to a re-employment examination by the company physician. Pursuant thereto Rivers was examined by Dr. McCarron on November 29, 1943. This examination showed ‘myocarditis after pneumonia,’ and the doctor advised that Rivers should not return to work. Dr. McCarron made two subsequent examinations, one on January 6, 1944 and the other February 25, 1944. The result of the January examination as shown by the doctor's records was ‘marked cardiac disease-should not return to work’; and the record of the third and last examination is ‘auricular fibrillation following pneumonia-should be discharged from further employment; not able to return to work.’

It will be noted that the claim petition against the Radiator Company was not filed until two months after the last of the three re-employment examinations.

By way of preparing for trial of this claim an examination of Rivers was also made by Dr. Visconti on January 5, 1944, with a finding of ‘serious cardiac condition; disturbance in the rate, rhythm and quality of heart sounds.’ Dr. Visconti estimated that disability was total.

An award was sought to cover the disability from the termination of employment on October 26, 1943 until May 11, 1944, the date of death.

The proofs show no causal relation whatever between anything in the work or working conditions of the claimant and the disability proved. We are left entirely to speculation. Effort was made to prove an important disparity in temperature between the place where the workman loaded his truck outdoors and where he discharged it indoors. The month was October. But nothing that is said in this connection is either definite or persuasive. As one witness gave it: ‘inside was warm. Inside was hot. Outside is different again in the winter.’ And again: ‘It was warmer inside where the truck stops to let the cupola be filled with iron than outside where the metal is picked up by the truck.’ Another witness described how the workers within the smelter building were ‘thinly’ clad, adding ‘all day long they dress very thinly because they are not going in and out of the building. The men that go to and from there, they have to be prepared, * * *. That was so even in winter time.’ But all this is so unsatisfactorily vague and unrelated to relevant days and times; it does not withstand the positive and unequivocal testimony adduced by the employer on the subject. By this it was shown that the temperature in the cupola building was approximately the same always as the outdoor temperature; and that there was no radiation of heat from the cupola into the room is demonstrated by the testimony of the witness Cathcart that he could put his ‘hand on the side of the shell of the cupola at any time, at any place’ while the cupola was in capacity use. This was not contradicted.

But there are considerations yet more potent that weigh against the claim. Implicit in the proofs are the developing phases of the workman's illness: cold, pneumonia, with resultant heart disease. The injury and ground of award as alleged in the claim petition is ‘injured heart and heart muscles as a result of nature of work being performed on that day’, i.e. October 16, 1943. From the cold contracted on the date named, to the disability alleged, the court is left to find its way by nothing better than unaided conjecture. The primary difficulty is the want of proved relation between the cold and any incident or condition of the work. For if there was a causal sequence that would relate the work to the ultimate disabling injury, no one has said so. There is simply no proof, medical or otherwise, upon which such a conclusion can be based. No accident or happening outside of the routine and the usual is so much as suggested. After working at the same task for some twenty years petitioner on the date alleged ‘didn't feel well; he didn't feel like working.’ And he ‘punched out’ of the plant to go home. And that is all there is. There is indicated no more reason why petitioner's illness should have been induced by an event occurring or condition prevailing on or about the day in question than at any other time during the whole twenty year period of his employment. After examination and study of the record we are left as free to say that the disabling illness had an origin entirely apart from the employment as we are to conjecture otherwise. The burden is upon the petitioner to establish his case by a preponderance of the proof. That he has failed to do.

Petitioner cites to us the case of Richter v. E. I. DuPont DeNemours & Co., 118 N.J.L. 404; 193 A. 194; Id., 119 N.J.L. 427, 197 A. 276. That case has no application to the facts here. Its one effect is to accent the deficiencies of the present record. There exposure to cold and dampness was specifically shown to have occurred at a definite time, and in a fully described place and conditioning; this being supplemented by unequivocal medical testimony that the given exposure was the inducing cause of the illness. Not one of these elements is established sub judice.

The Deputy Commissioner dismissed the claim petition in the Bureau and that decision is affirmed.

This brings us to the claim of Janie Rivers as administratrix of Alex Rivers against the East Coast Shipyards, Inc. There can be no question that when Alex Rivers entered the employ of the East Coast Shipyards on May 8, 1944, he was suffering from a grievously advanced disease of the heart. This had been shown by the findings of three physicians, Drs. McCarron, Shapiro and Visconti. Upon the hearing it became a postulate in the case. The Shipyard Company required no pre-employment examination and Rivers was put to work on a scaffold, scraping rust from the outer hull of a vessel, with a wire brush. After three and one-half days of this work he collapsed on the scaffold and died very soon thereafter. The nature of the work was described by a fellow employee, the witness Casanova, who testified: ‘We scraping the ship up and down, (witness indicates with an upward and downward motion of his hand and arm),’ using a wire brush weighing about three-quarters of a pound. ‘It's hard work-the wrist tire all the time. * * * He (Rivers) stop to take a rest * * * he breathe tired. (The witness opens his mouth and takes a deep...