Wilsey v. Reisinger

• Decision Date: 03 August 1962
• Docket Number: No. A--288,A--288
• Citation: 183 A.2d 717,76 N.J.Super. 20
• Parties: Rose WILSEY, Petitioner-Appellant, v. John REISINGER, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 20

76 N.J.Super. 20

183 A.2d 717

Rose WILSEY, Petitioner-Appellant, v. John REISINGER, Respondent-Respondent.

No. A--288.

Superior Court of New Jersey Appellate Division.

Argued April 9, 1962.

Decided Aug. 3, 1962.

Eugene B. Beck, Newark, for appellant.

Isidor Kalisch, Newark, for respondent.

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

Petitioner appeals from a judgment of the County Court reversing an award in her favor entered in the Workmen's Compensation Division. The claim alleged is that petitioner's husband suffered a fatal heart attack which arose out of and in the course of his employment. The sole question for determination is whether the proofs established a causal relationship between the employment and the heart attack.

Our independent review of the evidence commanded by Russo v. United States Trucking Corp., 26 N.J. 430, 140 A.2d 206 (1958), leads us to concur in the factual findings stated at length by Judge Barrett. Such findings are not in disaccord with those of the judge of workmen's compensation. They follow:

'The late William M. Wilsey, husband of petitioner, Rose Wilsey, was 59 years of age at the time of his death on December 1, 1959. For at least twenty years, and probably for as much as thirty years of his life, he was employed as a roofer. For three years prior to his death Wilsey worked for the respondent, a roofing contractor, with Wilsey's principal work during these three years being on the tar kettle.

Aside from two minor tumor operations and for rheumatism for a few days in 1958, Wilsey was never sick and never complained of his work.

The day before his death he had rested because it was raining and as a result there was no work. When he left home to go to work on his last day he appeared alert, as he also did when observed on this day during work by a fellow employee named Watson, and by the respondent.

Typical of Wilsey's daily work was what he did on December 1, 1959, which was weatherwise a moderate, sunny day. The respondent, petitioner and the witness Watson on this day undertook to put a new roof on a building at Alexander St. in Newark, which consisted of 3 floors and then the roof, making in all 4 flights upstairs to reach the roof. Bringing 3 or 4 cartons of asphalt to the job, the men arrived at about 8 A.M. Watson pulled a small derrick up to the roof. For a time the three worked at scraping off slag from the roof, with petitioner using a broom.

At about 11 A.M. petitioner went to the street level to light up the kettle. Respondent and petitioner while on the ground together caused to be hoisted on the derrick about 9 rolls of felt, each roll weighing more than 60 pounds. At about 12 noon work stopped for the lunch hour. It was not the custom of petitioner to eat any lunch, nor did he do so on this day. Instead, he chatted with Watson who sat in the cab of respondent's truck.

Watson, who was to work on the roof with the hot tar to be heated in the kettle, told petitioner the 'hot', as the material is called, would be needed about 1 P.M. After 1 P.M. and in a period of approximately 45 minutes, 7 buckets of hot tar were hoisted up to the roof on the derrick by the petitioner.

The derrick was a pulley device, consisting of a single rope with the weight of the hoisted object being pulled over one wheel. A carton of asphalt at a time would have been picked up from the ground by the petitioner and put in the kettle for heating to a liquid. When heated and placed in a bucket, the liquid tar, called as stated the 'hot', weighed with the bucket some 55 pounds or less. The bucket is not filled full because of the danger of motion spilling some hot tar. Working with the kettle and pulling up of the hot tar was petitioner's normal, regular activity.

After the 7 buckets had been sent up and after a lapse of several minutes, perhaps as much as 15, Watson, who was at a point on the roof where he could not see petitioner, called down the word 'hot', the traditional cry for another bucket, and no answer was received. Respondent, who was working on the roof, looked over a projecting parapet and saw Wilsey lying by his kettle. Respondent and Watson then descended to the street level and called an ambulance. Wilsey, who was dead, looked peaceful. Nothing in the area or about his person existed to suggest a cause of death. Although there was no autopsy, the death certificate recites as the cause of death 'sudden death on sidewalk. Occlusive coronary arteriosclerosis.'

There was nothing unusual or abnormal about the activity of the petitioner before his death. Such are the facts.

Saul Lieb, M.D., an internist, was the petitioner's expert witness, and Jerome Kaufman, an expert in internal medicine and cardio vascular diseases, testified for the respondent. Neither saw the petitioner alive. Both answered a hypothetical question. Dr. Lieb's answer was as follows:

'A. Based on the facts you have given me, with my opinion that Mr. Wilsey died as a result of an attack of acute coronary insufficiency, probably superimposed on some pre-existing occlusive coronary sclerosis, and from the facts that you have given me, it is my opinion that the work that he did in the period from 1:00 P.M. to about 1:30 P.M. or 1:45 P.M. when he was found dead, was a competent producing cause of initiating the onset of this attack of acute coronary insufficiency which caused his death.

The work to which I refer is carrying buckets of tar or asphalt weighing fifty-five pounds or less, a distance of fifteen feet from the kettle to the pulley device and then pulling it up four stories to the roof of the building by means of pulley device; assuming that this involved an effort in which he actually was involved in pulling this weight up four stories. If I remember, I am assuming that he did this about seven consecutive times in the same maner in the period between 1:00 P.M. and 1:30 or 1:45 P.M., at which time he was found dead. I would assume that the work involved in this period was competent to produce this attack of coronary insufficiency which caused his death.

Q. Doctor, is it your opinion that there is a causal relationship between the work he was doing at the time and his death?

A. Yes.'

On cross examination he said:

'Q. From the facts that were given to you, how do you know that he died of an acute coronary insufficiency?

A. Well, from all the medical facts, the most recent and probable diagnosis is coronary insufficiency. A man of fifty-nine who dies suddenly, doing a heavy type of exertion. This is our medical experience. The most likely cause of death, if there is nothing else obvious to account for it, is that of acute coronary insufficiency.

Q. How do you know it wasn't acute coronary thrombosis?

A. It is possible. I wouldn't rule out an acute coronary thrombosis.'

He didn't believe death was caused by a cerebral vascular accident. The doctor said he didn't know whether the petitioner was actually doing something when he collapsed and stated it wouldn't make any difference. It wouldn't make any difference, said the doctor, if there had been a 15 minute gap between the time petitioner had exerted an effort in pulling the buckets up and the time he collapsed. The doctor didn't know how long petitioner had been a roofer, but conceded that petitioner probably had more facility for the work than would be possessed by a sedentary worker.

According to the record Dr. Kaufman was given the time when the petitioner was found dead as 10:40 A.M., but I assume this hour is in the record as a typographical error because from other portions of the doctor's testimony it becomes clear he was taking into consideration the actual time of the day when the death was discovered, which was around 1:45 or 2 P.M. In his opinion there was no causal relationship between Wilsey's employment and his death. He states he believes the man died as a result of a very common medical condition, namely coronary arterio sclerosis. In arriving at this conclusion, he took into consideration the normality of the decedent's day's work and the cause of death given in the death certificate. The doctor failed to find any strain or stress in the hypothetical question which could be considered as a contributing factor to his death. In concluding his direct testimony, the doctor said:

'To repeat, I believe he died from a medical condition. He dropped dead suddenly because one of his arteries closed off.'

On cross-examination Dr. Kaufman discussed this point of view at length. He doesn't even think it is possible that the work could have caused the coronary occlusion. He says that there was no strain or stress related to it. He doesn't feel that hard work, assuming that petitioner's work was hard, was a factor in causal relationship.'

The real problem which confronts us is the determination of whether there is proof in the case of any work effort by decedent which could reasonably be said to have contributed to his demise. Such proof, of course, need not be in the form of direct evidence; circumstantial evidence would suffice to support the claim. But in the absence of a factual hypothesis, which at the very least indicates a possibility that the work contributed to the death, the occasion for raising this 'possibility' to the status of 'probability' by an evaluation of the conflicting medical opinions does not arise, since it is well settled that expert opinion is valueless unless it is rested upon facts which are admitted or proved. Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 305, 108 A.2d 616, 45 A.L.R.2d 1106 (1954). A hypothetical question cannot be invoked to supply the substantial facts necessary to support the...