Tritschler v. Merck & Co.

• Decision Date: 14 March 1961
• Docket Number: No. A--801,A--801
• Citation: 66 N.J.Super. 116,168 A.2d 666
• Parties: Hanna TRITSCHLER, Petitioner-Appellant, v. MERCK & COMPANY, Inc., Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 116

66 N.J.Super. 116

168 A.2d 666

Hanna TRITSCHLER, Petitioner-Appellant, v. MERCK & COMPANY, Inc., Respondent-Respondent.

No. A--801.

Superior Court of New Jersey Appellate Division.

Argued Feb. 27, 1961.

Decided March 14, 1961.

Aaron Gordon, Jersey City, for petitioner-appellant.

Sidney M. Schreiber, Newark, for respondent-respondent (Schreiber, Lancaster & Demos, Newark, attorneys; Sidney M. Schreiber, Newark, of counsel).

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

PRICE, S.J.A.D.

Petitioner, widow of Frank Tritschler, an employee of respondent, seeks the reversal of a judgment of the County Court dismissing her workmen's compensation dependency claim petition. The judgment affirmed similar action by the Division of Workmen's Compensation.

The instant appeal projects the issue whether Tritschler's fatal heart attack on June 15, 1955, allegedly precipitated by the exertion incident to his physical act of walking to respondent's plant infirmary for treatment a few minutes after he suffered an attack concededly unconnected with his work, justified an award of compensation under R.S. 34:15--7 et seq., N.J.S.A. Respondent contends that Tritschler's death did not result from an 'accident arising out of and in the course of' his employment.

The facts are not in substantial dispute. Tritschler, 56 years of age, had been employed by respondent for many years. He occupied an executive position entailing the performance of office work. He had suffered a myocardial infarction in 1952 at his home, necessitating absence from his work for a period of four months. Concededly that heart attack was unrelated to his employment.

Although not feeling well when he arose on the morning of June 15 aforesaid, decedent had gone to work. At about 10:00 A.M., while at his desk in respondent's plant, he suffered a heart attack of sufficient severity to cause his temporary partial collapse. Responding to a telephone call to the plant infirmary a doctor arrived in an ambulance. By this time Tritschler had rallied somewhat. The doctor advised Tritschler to return with him in the ambulance to the infirmary but Tritschler refused. The doctor then suggested that decedent 'have someone drive him over in his or someone else's vehicle.' He told the doctor that he would go to the infirmary 'in a few minutes.' He did so but walked the intervening distance of 775 feet. The proofs showed that the temperature was then between 73 and 77 Fahrenheit. On arrival at the infirmary he collapsed. Examination disclosed that he was 'acutely ill.' He was 'cyanotic, breathing stertorously, unconscious, sweating profusely.' He rallied temporarily under medication but as the day progressed his condition worsened. He died at 4:00 P.M.

Although the early morning attack occurred while Tritschler was at his office, not only was no claim made by petitioner that the attack then suffered was work-connected, but Dr. Saul Lieb, testifying for petitioner, specifically conceded that the fact that the aforesaid attack occurred while decedent was at work was purely 'coincidental' and stated that the 'myocardial infarction onset' occurred 'in the natural course of the underlying disease while he (Tritschler) was working at his desk on June 15, 1955.'

Petitioner's claim that her husband's death was due to 'an accident arising out of and in the course of his employment' is, as above noted, based solely on her contention that the fatal attack was the result of the exertion and strain allegedly flowing from decedent's aforesaid walk to respondent's infirmary following the coronary occlusion suffered at the office.

Dr. Lieb, an internist specializing in cardiovascular disease, responding to a hypothetical question propounded by petitioner's counsel, expressed the view that decedent had suffered 'a myocardial infarction in 1952 and * * * on June 15, 1955 had a pre-existing heart condition of major degree.' Then, after referring as above noted to the actual onset of the infarction suffered by decedent at his desk on the latter date, he testified as follows '* * * He thereupon was observed by his secretary to look better and said that he felt better. In my opinion, this merely signified that he had gotten over the first initial shock of the myocardial infarction and had a false sense of improvement, which, of course, proved later to be fallacious. * * *

'By the time he was seen by Dr. King again about ten minutes later in the Dispensary, the picture was that of a myocardial infarction; he was in extremis. In other words, it is my opinion that when a man is in the condition described by Dr. King when he came into the Dispensary and observed this man being cyanotic and breathing noisily and with an imperceptible pulse and unobtainable blood pressure, a man like that, the die is cast. I mean, he is through. I have never seen anyone survive that. All of the rest of the treatment, of course, that they gave is indicated. We all do it, but I have never seen anyone saved by such treatment. Their blood pressure comes up and they look better for a few hours. You keep them surviving for a few hours mere than what you would otherwise, but the condition when they appear that way is invariably fatal. Now, it is my opinion that this radical change within ten minutes from the appearance of what apparently was a mild type of myocardial infarction to one in which the man was unconscious and in extremis was brought about by his walking from his desk to the Plant Dispensary in conditions in the open, exposed to the heat described, which was referred to the burden upon his coronary circulation. The walking in itself was a burden upon his coronary circulation. He would have been well-advised, of course, to have gone over in the ambulance and been put to bed and gotten prompt treatment. It is my opinion that the sudden change in this picture from that of a mild myocardial infarction to one in extremis, was brought about within ten minutes by his walking outside under conditions of heat.'

Emphasizing the view above expressed, the witness on cross-examination reaffirmed his previously expressed opinion that the circumstance of decedent's 'employment' which he believed had a causal relationship to decedent's death, was not the fact that Tritschler had a heart attack while working at his desk, but the fact that he 'walked' from an air-conditioned office to the infirmary 'outdoors and in the heat.' Still later in cross-examination he added: 'Any walking at all, since he (decedent) had the onset of the attack, is contra-indicated and this distance certainly is more contraindicated and this type of distance is a substantial distance for someone to walk who has an acute coronary.'

Dr. Jerome G. Kaufman, also a specialist in internal medicine and cardiovascular disease, in response to a hypothetical question presented by respondent found no such...