State of New Jersey
DEPARTMENT OF LABOR

CHRISTINE TODD WHITMAN, Governor
MEL GELADE, Commissioner

September 29, 1999

Murray Weingartner, Esq.
Wysoker, Glassner et al.
340 George Street
New Brunswick, N. J. 08901

Lora U. Campbell, Esq.
c/o H. W. Crusey, Esq.
301 Sullivan Way
W. Trenton, N. J. 08628

re: Babish v. Donald C. Rodner, Inc. - C.P. 96-035431

Counsel:

In the early afternoon of July 24, 1996 the petitioner, then employed as a pipefitter by the respondent, had a heart attack. Petitioner testified that he kept working for a period of time after experiencing the initial symptoms of pain in his left arm and tightness in the left side of his neck.  Within an hour of the time that he first felt the above symptoms he told his partner on the job that he couldn't work any longer and petitioner then went to his car which was parked near the job site. He then sat in his car with the air-conditioning running in hopes that the feeling of illness and nausua would pass. He apparently went to sleep for a few minutes and then awoke after retching and with vomit "all over my body". An ambulance was called at that point and he was taken to JFK Medical Center in Edison. He was placed in the coronary care unit where he stayed for 6 days; he was then transferred to a regular room and discharged a few days later. He continued to receive medical care after he left the hospital and was cleared to return to work roughly 9 weeks later.

The records for the petitioner's admission and stay at JFK for the period July 24 - 30, 1996 present a principal diagnosis of anterior wall myocardial infarction starting at 2:00 PM on July 24th. Cardiac catheterization was performed during petitioner's stay at JFK; findings were indicative of a right coronary artery with "total occlusion in its proximal position". In addition the procedure found   "Left ventriculography reveals moderate to severe left ventricular dysfunction" and continued medical therapy was recommended. See Exhibit P-6.

Petitioner testified that he had experienced no heart problems prior to the afternoon of July 24, 1999. He had been a member of the Steamfitter's Unon for 31 years and after his release from medical treatment he attempted to return to work as a pipefitter. However, to his dismay he found the work too strenuous and stated that he felt "inadequate" in the performance of his duties. He complained of continued shortness of breath and "twinges" in the "heart area" in the lefthand side of his chest whenever he physically "exerts" himself. His inability to contiunue to work as a pipefitter, with a consequent reduction of income, has caused financial hardship and he lost his home in a foreclosure proceeding. In addition, his wife has divorced him after 25 years of marriage. He eventually found employment as a stationary engineer, a position which he is able to perform notwithstanding the physical restraints he feels from his heart attack.

Petitioner testified that he found his job as a pipefitter "strenuous" and noted that on the day of his heart attack he and his partner were handling 20 and 40 foot pipe lengths and were forced to literally stand on their pipe wrenches in order to break the seal of the pipe lengths they were removing and replacing with new pipe sections. He estimated the weight of the wrenches to be 12 pounds and the weight of a 20 ft. section of pipe they were handling to be 60 pounds. He remembered that he found the day "very hot" and "very, very humid"; he noted that using a hard hat intensified the sun's heat.

Petitioner acknowledged that he had been a "two pack a day" smoker prior to his heart attack; he then quit smoking for several months but has now resumed and smokes one to two packs of "Kools" daily. His mother died of enlargement of the heart at age 79; his father died of asbestosis at age 84.

Petitioner also testified as to his normal daily activities in the time frame prior to his heart attack.He stated that when he did not have an on-going pipefitter job he would go up to the union hall in Warren, N. J. to see if there was any work available. If there was no work he would leave the hall after 10:00 AM. Petitioner was not shown to have engaged in any physically strenuous work other than as a pipefitter. He testified that he had been a keyboard musician and pianist for 40 years and that he performed in that capacity once or twice a month. He also took private lessons and practiced for perhaps an hour a day. He did not participate in any exercise program or sports activities. He did attend Lions Club meetings and performed "some paperwork at night" for that charity.

Kevin Clarke, who had been working with the petitioner as a pipefitter on July 24, 1996, also testified. His testimony as to the nature of the job requirements confirmed the statements of the petitioner in that regard, including the fact that it was a "hard" job due to the fact that it entailed the disengagement of old connections. He also confirmed the petitioner's testimony as to having arm pains, thinking that he might be having a heart attack, going to rest in his car and later vomiting, as well as the arrival of the ambulance. When asked as to his visual observations of the petitioner after their lunch break and before the petitioner went to his car, Mr. Clarke stated that the petitioner was "a little flush(ed)" and that he was perspiring "profusely".

Drs. Friedman and Swietnicki testified as cardiac experts for the petitioner and respondent, respectively. I found the medical credentials and professional experience of these witnesses to be very similar, as was their principal diagnosis of the petitioner's medical condition. They disagreed, however, on the issue of causality which is the critical issue in this case. Dr. Friedman advanced the theory that the petitioner's work effort on July 24, 1996 was a materially contributing cause of the latter's heart attack; he further argues that if the petitioner had not gone to work on that day, and had instead stayed home and relaxed in his house, he would not have suffered a heart attack on that date. Dr. Swietnicki holds the opposite position, i.e., that the petitioner's cardiac condition was such as of the morning of July 24, 1996 that he was going to have a heart attack that day regardless of  whether or not he went to work. In his opinion the petitioner had an idiopathic myocardial infarction brought on by a variety of causes and risk factors such as his obesity, a history of heavy cigarette smoking, a family history of heart disease and substantial occlusion of his right coronary artery and that petitioner's work effort of July 24th did not substantially contribute to the heart attack he suffered that afternoon. Rather, in Dr. Swietnicki's view the petitioner's acute myocardial infarction "was a progressive event" that was not related to his employment on July 24, 1996.

I make the following findings of fact as regards petitioner's pre-existing heart condition and his cardiac event which occurred on July 24, 1996:

a) As of the morning of the above date:

i) Petitioner had not experienced any symptoms of cardiac failure or functional disability relating to his heart, nor had he ever been treated for the same. Notwithstanding such lack of knowledge, petitioner is found to have had coronary artery disease as of the morning in question.

ii) Though he had been a steamfitter/pipefitter for 31 years, the petitioner had not worked or been actively engaged in that employment for 4-5 weeks prior to July 24, 1996.

iii) Petitioner led a sedentary life style aside from his workplace activities; he is not shown to have engaged in any physical exercise or activities other than that related to his employment.

iv) Petitioner had major risk factors toward coronary heart disease in the nature of

obesity (6' 230 lbs.), that he had been a two pack per day cigarette smoker for many years, and that his mother had died of heart disease at age 79.

b) Petitioner suffered an acute myocardial infarction at approximately 2 p.m. on July 24, 1996. He had been working in a laboring capacity that day commencing at roughly 9:15 a.m. His job entailed disconnecting 20 ft. lengths of old pipe which lay in a trench. The connections were sufficiently bonded that petitioner and his partner on the job were required to stand on their wrenches (2' in length) to "break" the joints. The used pipe was then removed from the trench in lengths of 20' and 40'. Each 20' length was estimated to weigh 60 lbs. After lunch, and before petitioner became ill, he and his partner were busy handling, carrying and threading 20' lengths of replacement pipe which was to be installed in the existing trench.

c) The climatological report for July 24, 1996 (Exh. P-2) presents a temperature of 84 degrees for Plainfield, New Jersey, the temperature recording station nearest to petitioner's job site (Inman Rd., Edison, N.J.). The report also indicares that temperatures recorded for other Central Jersey communities, such as New Brunswick, were considerably less. I lived in Union and Somerset Counties for over 30 years and am familar with the relative locations of Inman St., Edison, as well as proximate communities including Plainfield. Given the location of the petitioner's work-site, including elevation and distance from water, I am satisfied that the temperature experienced at such work-site was within a few degrees of that reported for Plainfield. For the purposes of this case I am accepting the fact that the temperature at petitioner's work-site reached 80 degrees at mid-day on July 24, 1996. I note in this regard that the temperatures reported at Plainfield for the 5 day period commencing July 24, 1996 each exceeded 80 degrees.

On the basis of the above findings of fact I find substantial similarity between the case at hand and the facts presented in Hellwig v. J.F. Rast, & Co.,Inc., 110 N.J. 37 (1988). In the course of affirming a Compensation Court ruling that the clamant's heart attack was compensable the Supreme Court noted in Hellwig that the claimant, also a pipefitter, (i) had not worked for several weeks prior to the date that he suffered a heart attack in the course of his employment, (ii) was working in an environment that was 80 degrees and humid, and (iii) was required to perform physical labor of a  nature that exceeded his "off work-site" activities though not necessarily of a nature that exceeded his regular workplace duties. In reaching its determination that the petitioner's work on the day in question precipitated a compensable injury the Hellwig court considered and rejected the Appellate

Division's interpretation of N.J.S.A. 34: 15-7.2, as presented in Prusecki v. Branch Motor Express, 206 N.J. Super. 39, 49 (App. Div. 1985), which would require that to be compensable the work effort causing death or injury must be greater than the stress or strain which the claimant regularly experienced both in his workplace and during off hours. In support of its position the Appellate Division in Hellwig court stated:

The historical evidence does not support a legislative intent that a worker should recover for a cardiovascular accident caused by the rigors of his work only if able to demonstrate that those stresses and strains were beyond the ones ordinarily encountered in the workplace. We are satisfied that the Legislature intended no more that to require that the cardiovascular accident be caused by the work effort or strain involving a substantial condition in excess of the "wear and tear of the claimant's daily living" exclusive of work. id. at p. 251.

Hellwig v. J.F. Rast, & Co.,Inc., 215 N.J. Super 247, 251 (App. Div. 1987) aff=d 110 N.J. 37 quoting Dwyer v. Ford Motor Co., 36 N.J. 487 (1962)

The Appellate Division subsequently recognised this legislative interpretation in Fiore v. Consolidated Freightways, Inc., 270 N.J. Super. 520, 537 (App. Div. 1994) when it stated that Section 7.2 was intended to relieve an employer only of those cardiovascular claims where the claimant's heart attack was as likely to have occured off the job as during his employment because the work effort of the latter was no greater than that to be encountered in his off-job activities.

In light of the above judicial interpretion given to Section 7.2 I find that the petitioner has met his burden of proof on the issue as to whether his heart attack of July 24, 1996 was "in reasonable medical probability caused in a material degree" by his work effort and strain on the job that day. Furthermore, I find that the work effort and strain petitioner experienced to be substantially in excess of the "wear and tear" of his daily off-job activities. In coming to this conclusion I (i) adopt Dr. Friedman's opinion that if the petitioner had stayed home on July 24, 1996 and pursued his usual out-of-work activities he would not have suffered a heart attack on that date, and (ii) reject Dr. Swietnicki's opinion that petitioner was going to have a heart attack on July 24, 1996 whether or not he stated home or reported for work as a pipefitter and performed the duties to which both he and Mr. Clarke testified.

Both Dr. Friedman and Dr. Swietnicki have testified to the fact that though petitioner may not have presented any pre-attack symptoms he did present certain risk factors which have been found to be prevelant in individuals who are considered candidates for coronary events of the type experienced by the petitioner, i.e. he was a heavy smoker, he was visably overweight, he had elevated cholestrol, he was (unknown prior to his hospitalization) a diabetic and he had a family history of heart disease.

On the basis of the above findings it is my opinion that the petitioner incurred a permanent cardiac/ internal disability of 35 % partial/total as a result of his heart attack of July 1996; I further find that the respondent is entitled to a credit of 10 % against such award based upon his physical habits and conditions, with particular attention to cigarette smoking.

Drs. Crain (pet'r.) and Bender (resp.) testified on the issue of whether petitioner's heart attack, which I have found to be causally related to his employment, precipited any mental or emotional condition which has resulted in a permanent psychiatric disability. Dr. Crain testified that petitioner  presented evidence of depression in the course of his examination of petitioner, which the examiner related to his July 1996 heart attack. Dr. Crain estimated a resulting permanent psychiatric disability of 25% partial/total. He based this recommendation of a variety of factors including petitioner's inability to continue employment as a pipefitter, the resulting loss of income which petitioner experienced as well as the fact that he had lost his home in a foreclosure proceeding due to such loss of income, his marital problems which resulted in divorce and which petitioner attributed to his loss of income, as well as petitioner's "everyday anxiety" about having another heart attack. Dr. Crain acknowledged that some part of petitioner's depression could be traced to matters involving his son which were unrelated to his heart attack. He was unable, however, to allocate causal relationship for petitioner's depression and resulting psychiatric disability between such matter and that portion of such condition /disability which was related to petitioner's heart attack.

Dr. Bender testifed as respondent's expert in neurology and psychiatry. He found the findings of his examination of the petitioner to be normal and without permanent disability in both the neurologic and psychiatric areas. He based his conclusion in the psychiatric area on his observation of the petitioner and the absence of emotional symptoms which would have reflected a psychiatric dysfunction. He stated that while he recognized the many problems that the petitioner presented, i.e. heart attack victim, loss of ability to be employed as a pipefitter with resulting loss of income as well as the loss of his former home in a foreclosure proceeding, divorced from spouse of many years and with a child in trouble with the law, Dr. Bender viewed the petitioner's response to such problems as lying with the "normal" range and that he would not diagnose a claimant as being disabled mentally unless they had reached a point where their mental condition affected such claimant's ability to function. Dr. Bender also found the petitioner's return to heavy smoking to be an irresponsible act (in light of his recent heart attack), rather than an example of his anxiety over his current state of health.

I am satisfied that the petitioner has experienced a measure of permanent psychiatric depression due entirely to the residual effects of his heart attack of July 1996, including his expressed fear of having another attack and the fact that he is afraid to exert himself physically. Putting his family matters aside, I find that the inability to return to pipefitting duties after his heart attack and the resultant loss of income, which contributed to the loss of his home under foreclosure proceedings, as well as his continuing fear of having another heart attack, which Dr. Bender found to be a "normal" result of petitioner's experience, all combine to produce a loss of function due to depression and/or abnormal anxiety which I find to be equal to 5 % permanent psychological disabilty. I reject Dr. Bender's opinion that the petitioner's emotional response to his various post-cardiac episode problems is entirely "normal" and has not produced a loss of function due to petitioner's expressed anxiety and depression regarding his employment and his current financial condition. How else can one view or explain petitioner's voluntary termination of pipefitting employment and resulting loss of income? On the other hand, I find Dr. Crain's recommendation of 25 % partial/total psychiatric disability to be well beyond the actual level of depression and/or anxiety from which petitioner suffers. .

On the basis of the above findings I find that the petitioner has incurred a permanent cardiac and psychiatric disability of 40 % partial/total, subject to a credit of 10 % as noted above. The award is stated as follows: 240 wks. @ $ 256 = $ 61,440 less $ 7,680 * = $ 53,760.

( * credit due respondent; see p. 5, supra.)

There are two (2) remaining issues which must be addressed at this time. To begin with the petitioner seeks payment and/or reimbursement for the medical bills which are presented as Exhibit P-1. I have reviewed the bills and find them reasonable and related, including the laboratory bills of April 1997 and June 1998. Respondent denied this claim and made no challenge to the bills presented by the petitioner during the trial. I find respondent is now responsible for the medical bills that petitioner incurred. The legal fee provided to petitioner's counsel (see below) includes a fee on these bills. I am providing a complete copy of Exhibit P-1 to both parties for their use.

Having found that the petitioner incurred a work-related injury, I also find that the petitioner was entitled to receive temporary disability benefits for that period of time which commenced with the day following his injury (July 25, 1996) and continuing until his physician either released him from treatment or returned him to work. In reviewing the record (see T-10/6/98, p.19) there is some question whether the above period is 8 weeks (ending September 18, 1996) or 9 weeks in length. Inasmuch as the state disability payments ended on the former date I will award temporary disability benefits for an 8 week period, i.e. 8 x $ 480 = $ 3,840. In addition, the petitioner will be required to reimburse the Department of Labor in the amount of $ 2,651.74 representing benefits paid to him by the Division of Temporary Disability Insurance.

In addition, I approve the following fees and expenses:

I will enter an Order incorporating the above award, fees and expenses.

Neale F. Hooley
Judge of Compensation