ALEX T. HERZFELD, Petitioner

vs.

HILLSIDE WAREHOUSE & TRUCKING COMPANY, INC., Respondent

CLAIM PETITION
NO. C.P. 95-037591

OPINION AFTER TRIAL

APPEARANCES:

Michael A. Toto, Esq.
Attorney for the Petitioner

Howard W. Crusey, Jr., Esq.
Attn: Ann DeBellis, Esq.
Attorney for the Respondent

William L. Boyan
Judge of Compensation

Petitioner claims he suffers disability resulting from a myocardial infarction. While it is a near certainty that he suffered a myocardial infarction in the early hours of September 3, 1995, a Sunday, I am not persuaded that it is more probable than not that petitioner suffered this infarction as a result of anything that happened on the job.

It is undisputed that petitioner was engaged in very strenuous activity during hot weather the previous week. However, it is improbable that cardiac damage occurred then, or that the myocardial infarction suffered September 3, resulted from what occurred the preceding week.

Petitioner presented to an emergency room in the early hours of Sunday, September 3, with classic symptoms of a shortage of blood to cardiac muscle tissue ("ischemia"): profuse sweating, chest and jaw pain, and a sense of having an upset stomach. In response to questioning by an emergency room physician, petitioner stated he had similar symptoms at one particular time a week earlier. On page 66 of the transcript, respondent’s attorney read from a nurse's note in the hospital record that petitioner "had a similar episode five days ago while working." Petitioner agreed that was an accurate statement. That corroborates that there was one episode in August, and not a continuum of symptoms leading up to the infarction. See also the discussion of his statements to the ambulance squad and the emergency room personnel on pages 9 and 10, corroborating there was but a single incident earlier in the week.

The specific date of the one specific earlier episode is not entirely clear. A stipulation was offered that the first incident happened August 28, a Tuesday, but the twenty-eighth was actually a Monday. Petitioner testified more firmly that it was a Tuesday than that it was the twenty-eighth.

He testified that when he first had the symptoms, he telephoned to the trucking company’s main office complaining of an upset stomach, and they told him to take an Alka-Seltzer, but there was nothing available to take. The hospital record noted that he told the staff at the emergency room on September 3, referring to the earlier episode, that the pain was relieved with antacids. (This reflects on petitioner’s ability to recall accurately the details of these events.)

Petitioner testified on page 71 that it took a half hour for the pain to subside the first time, and that he was "on the floor bouncing all over the truck" before the pain subsided. Fifteen minutes after the pain subsided he was able to get to a phone to contact the dispatcher. I am skeptical whether the pain could have been this severe yet the petitioner would seek no medical attention and would go to work the next day.

Since petitioner sought no medical attention, we have no laboratory findings on the condition of his heart or circulatory system at the time of the first episode. The symptoms completely resolved. Within a short time petitioner resumed at least moderately heavy exercise. The more probable explanation is that, while his coronary arteries temporarily failed to deliver to his cardiac muscle tissue enough oxygen to allow his heart to carry the workload imposed on it during the August episode, petitioner did not suffer permanent injury from those events.

A person leans dangerously over a cliff. If he leans a little farther, he will fall and be killed. But instead, he backs away, and is uninjured. So it was with petitioner in August 1995.

At this point, I interrupt the narrative of the facts of the case to discuss some of the medical principles. The heart of any human being is a combination of two pumps. The right side of the heart receives venous blood from which tissues of the body have withdrawn oxygen they need for chemical processes generating energy. The right side of the heart pumps the blood low in oxygen through the lungs to be resupplied. The left side of the heart receives the oxygenated blood from the lungs and pumps it to the arterial supply of the general circulation.

The mechanical force by which the heart moves blood is furnished by the action of muscle tissue. The muscle tissue of the heart is known as the myocardium. Just as the muscles of your legs need oxygen for the biochemical processes which allow them to exert strength to enable you to walk, the myocardium needs oxygen to do its work.

The arteries that supply the leg muscles are somewhat distensible. If a person is running very hard, and his leg muscles require a lot of oxygen, the leg arteries may somewhat distend, increasing the available blood, and thus the available oxygen. However, coronary arteries, being surrounded by very strong muscles, are not distensible.

Some heart attacks or heart failures are due to electrical faults. Every muscle requires an electrical signal each time it is to contract. That is why a spinal cord injury may result in a person being unable to move his legs. Heart muscle tissue also requires electrical stimulation for each beat. In some persons, something goes wrong with the generation of the electrical signal, its transmission, or its timing. Any one of these defects may result in the pumping action of the heart being inadequate to sustain a normal level of activity, or, in a severe case, unable to sustain life. The present case, however, does not present one of electrical failure.

Petitioner's problem was that as of September 3, 1995, his heart was not able to get enough oxygen to keep all its tissue alive while carrying the load then imposed on it, so some of it died. The most common cause of inadequate supply of oxygen via the coronary arteries to the myocardium is the development of atherosclerosis, the building up of deposits inside the arteries that restricts blood flow.

When I was a teenager, the use of copper tubing for water lines was just coming into use in this country. Appropriate plastics suitable for water lines had not yet been developed or had not been approved. Many of the water lines in homes were made of iron. I remember one time the water pressure in our home dropped way down, and you would wait forever to fill a kettle. The problem was solved when a length of iron pipe in the basement was replaced. The old pipe, which originally had an inside diameter of ¾², had such a build-up of metal salts in it, just from what resulted from trace chemicals in the water reacting with the iron in the pipe, that the opening through the pipe through which the water was supposed to flow was down to the size of a steel knitting needle, about 1/16². Magnified pictures of sections of coronary arteries removed at autopsy after a cardiac death are strikingly similar to the clogged old iron pipe of my youth.

In the present case, we have hard data on the condition of the insides of petitioner's coronary arteries, since petitioner underwent angiography. Angiography is a process by which a fiber-optic device is gotten inside the heart, allowing direct observation of the insides of the coronary arteries. (The instrument is inserted into a large artery in the thigh, the femoral artery, and threaded upstream via this artery to the aorta, and into the coronary arteries. The coronary arteries originate at the very beginning of the aorta, at the point of maximum blood pressure, guaranteeing the coronary arteries access to blood if there is any output from the heart .) The angiography showed multiple stenoses. Stenosis means "narrowing." Multi-stenosis means that more than one coronary artery had been affected.

The angiography showed that the lumen (i.e., the interior of the artery that is supposed to be open to allow blood to flow through) of the left circumflex artery was 55% to 60% occluded. That is how much blockage there was. Only 40% to 45% of the cross section of the interior of this coronary artery was available through which blood could flow. The left anterior descending artery (sometimes referred to as the LAD) was 60% occluded. These findings were reported at the St. Vincent's Hospital, to whose emergency room petitioner was first taken. Petitioner was ultimately transferred to a teaching facility, New York University Hospital, to assure the highest level of care.

Whether N.Y.U. redid the angiography, or simply reinterpreted the angiographic data obtained at St. Vincent's Hospital, is not clear. In any event, the doctors at N.Y.U. regarded their data as showing even more occlusion than first reported. They felt petitioner's circumflex coronary artery was occluded approximately 75%. They opened up this occlusion by angioplasty (putting a miniature balloon into the coronary artery threaded up through a femoral artery, connected to a source of gas pressure, and then enlarged enough to force a wider opening in the coronary artery, a greater lumen). Then they put in a device like a sleeve, called a stent, to keep the artery open.

What is important for us in this case is not the procedure that they did to relieve petitioner's symptoms and reduce his risk of pain or death, but the degree of atherosclerosis, or plaquing, that was present in his coronary arteries. The atherosclerotic process is one that gets worse over time. It takes years to develop the kind of pathology that petitioner had. Petitioner acknowledged on page 62 of the transcript that he had been taking antacids for years. This is consistent with him having gradually increasing unrecognized angina as his coronary arteries’ lumina narrowed.

Through a coronary artery that is significantly blocked, there may nevertheless pass enough blood to supply oxygen to the heart muscle, the myocardium, to enable the heart to pump adequately while the person is at rest, moderately active, or even very active, without a dangerous limit being reached. When the load on the heart is increased, whether by a person attempting to do more work, or being put through an exercise stress test under the supervision of a cardiologist, there may not be a great enough supply of oxygen to meet the needs of the myocardium. Then the severe pain that is known as angina pectoris may result.

If the oxygen deficit of the myocardium is such that a slight reduction in the load placed on the heart brings the supply and demand of oxygen to the myocardium into equilibrium, the pain will disappear. This condition is frequently referred to as "stable angina." The person diagnosed with stable angina may, from time to time, get more active than the capability of his heart can handle, bringing on the pain of angina again, causing a sensible person to take it easy, with the pain once again going away, perhaps aided by some medication. As Dr. Neugut put it, a person with stable angina learns very quickly that he has a "speed limit" which he must observe to avoid pain. As Dr. Neugut, one of petitioner's two medical experts, also stated, he does not recommend the award of permanent disability benefits to a person with stable angina because he regards the ischemia (shortage of blood to the coronary arteries) which brings on the angina to be reversible.

I find no persuasive evidence in this case, and certainly no demonstrable objective medical evidence, that an incident of angina either increases the occlusion of the lumen of a coronary artery or weakens the myocardium. I am not persuaded that an incident of ischemia or angina makes pathophysiological changes in the person making a myocardial infarction more likely to happen.

I consider the contention to the contrary results from an ignoring of the progressive character of the atherosclerotic process. It goes on as a result of genetics, smoking and other factors. It gradually gets worse. No one has shown that strenuous exertion plays a role. In fact, moderate exercise is prescribed as a preventive.

In a person approaching a crisis from atherosclerosis, the occlusion of the coronary arteries may be only enough to bring on ischemia and angina at first. However, in some persons the process is accelerated enough, that one crisis severe enough (the typical case being a 60-year-old overweight office worker trying to shovel his driveway after a one-foot snowfall), can cause even a fatal myocardial infarction.

The ischemic events and angina may serve as warnings to a person that he has an underlying atherosclerotic process at work, and that he better do something about before he has "a big one." But it does not cause the big one.

With respect to petitioner’s symptoms of August 1995, I accept that he experienced ischemia and angina. Although the administration of an antacid seemed to relieve the symptoms, it is more probable that simply relaxing a bit from the strenuous exertion, observing the "speed limit," resolved the angina attack.

However, I do not accept the testimony that there were renewed cardiac symptoms between the August episode and September 3. Petitioner acknowledged that he answered the questions of the members of the ambulance squad (which took him from his residence to the hospital September 3), whether he had ever experienced the same symptoms before, consistently with there having been just one episode, that he complained of an upset stomach to his dispatcher earlier that week. Petitioner acknowledged that he did not have pain of the same severity between Tuesday and Sunday. He stated: "There was no pain, no reason to go to a doctor." There is no contemporaneous documentation of any such symptoms.

It is such a standard part of emergency room procedure in a suspected cardiac emergency, that I am sure when petitioner went to the emergency room September 3 they asked him if he had had the symptoms previously. This is a question that is contemporaneously very important to the doctors for the purpose of diagnosis and treatment. They would listen to the answer attentively and record it carefully. If petitioner had said, "I've had these symptoms for days during the past week," I cannot believe that the emergency room personnel would have put down only that he had similar symptoms previously on one day in August. Petitioner's counsel implicitly recognized the weakness of the testimony that there were symptoms in between August 28 and September 3 by not even including them in the written hypothetical question he prepared and put to both of his experts. The written hypothetical question assumed only the facts documented, rather than the testimony subsequently influenced by hindsight, with all the inducements for gain that the filing of the claim and the conduct of trial reflect. (Eventually, the hypothetical question was also stated more inclusively.)

On page 66 of the transcript, respondent’s attorney read from a nurse's note in the hospital record that petitioner "had a similar episode five days ago while working." Petitioner agreed that was an accurate statement. That corroborates that there was one episode in August, and not a continuum of symptoms leading up to the infarction. The nurse had made a specific reference to a prior incident as having occurred "last Monday that went away with Mylanta." Petitioner stated that the day was not Monday, but Tuesday. But he did not challenge the substantive fact of a single day’s events.

Treating the events of August  as an episode of ischemia and angina, I do not find that it contributed in any way to the happening of the myocardial infarction on September 3. Petitioner's treater, Dr. Galvin, did not really support such a proposition, while Dr. Neugut attempted to. Dr. Lewis expressly rejected it. I agree with Dr. Lewis on this point, and reject Dr. Neugut's opinion to the contrary. I consider Dr. Lewis to be better qualified in cardiology than Dr. Neugut, and Dr. Lewis's opinion on this point is more consistent with the information I have gleaned in the course of my duties as a Judge of Compensation during more than 18 years. I was negatively impressed by the way Dr. Neugut responded to the inquiry whether there are baroreceptors that signal to the heart when the back pressure from the general circulation is such that the heart must increase its output to meet the system’s oxygen needs. He also seemed to play for time when I asked whether an electrocardiogram taken September 3 would have shown a completed infarct August 28 if there had been an infarct then. I expect a cardiologist to be able to answer that question crisply.

I know that an electrocardiogram can show the existence of an infarct that happened years before, for example, excessive Q waves in certain leads. Concerning whether an electrocardiogram could show a completed infarct that was six days old, I expect a cardiologist to be able to say, "Yes, it can" or, "Sometimes it can," or "No, it cannot." But I thought that Dr. Neugut hedged, more from a lack of his own knowledge than the lack of knowledge of the medical community.

One thing that we can be scientifically certain of in this case is that petitioner did suffer an infarct, in the early morning hours of September 3, 1995. The observation of the enzymes discussed at great length during the testimony of Dr. Galvin, and to a lesser degree during the testimony of the other two experts, is all based on very well accepted medical principles. In fact, I think all three experts substantially agreed that the infarct began in the early hours of September 3. Dr. Neugut tried to stretch its incipience some hours earlier than the other two experts, but no one contended that the infarct demonstrated by the elevated enzymes on September 3 began during a work exertion, or even shortly after it.

On page 30 of the transcript, petitioner testified that he worked until Friday of that week. He testified that on Wednesday, Thursday and Friday he had pain, but no burning. He said he "kept shaking it off as indigestion." He testified he kept taking Tums, but they never really helped anything because they only help when you have a burning sensation. This was not a burning sensation, but more of a pain. (I am very doubtful of the veracity of this testimony, as is noted above.)

On page 32 petitioner specifically testified not only that he did not work on Saturday, but that he did not exert himself in any way that day. His first pain was experienced very early on Sunday morning, with no pain on Saturday.

Petitioner was giving such intense gastrointestinal complaints to the emergency room staff, that they had actually decided to send him to another floor of the hospital to do an upper G.I. series, when Dr. Galvin, the cardiologist, happened to come by, and the attending physician asked her to look at petitioner. She looked at an electrocardiogram that had already been performed, reviewed the subjective complaints, and correctly diagnosed petitioner being in the midst of a coronary infarction. She ordered him placed on nitroglycerin right away, probably saving his life. I admire Dr. Galvin’s competence, and that she had the courage of her convictions. The enzyme studies subsequently confirmed that she was right on the money after a few minutes with the patient, after hours of dithering in the emergency room.

Petitioner contended he did not smoke more than half a pack a day. However, on transcript page 67, the hospital records twice refer to a smoking history, once of "a pack a day times many years," the second time, "a pack and a half a day." Reminded of this, petitioner then conceded another quarter pack a day, testifying that he never smoked more than 10 or 15 cigarettes a day all his life. He then backed away from that statement a bit, claiming he limited his smoking for only ten years. He had a special life insurance policy that gave him a "nonsmoker preference on the policy," that I doubt he was entitled to. He said that he had to take a blood test to be warranted as being a non-smoker. He said to pass the test, all you had to do was refrain from smoking 30 days. He had been in the insurance business. I am sure the insurance company relies as well on the applicant representing he is a non-smoker. The blood test is an attempt to supplement the representation, not to excuse an untruthful representation.

Cigarette smoke contains carbon monoxide, among thousands of other harmful chemicals. When carbon monoxide enters the lungs, it diffuses through the alveolar membrane into the capillaries, where it immediately combines with hemoglobin to form carboxyhemoglobin. This disables (on a long term basis) that much hemoglobin as a carrier of oxygen to the tissues of the body. If enough carbon monoxide forms enough carboxyhemoglobin, the person will die. This is what happens when a person commits suicide by idling his auto engine in a closed garage. Smokers do not raise the level of carboxyhemoglobin in their blood enough to kill themselves directly, but they do get it up to five to ten times the levels in the blood of non-smokers. Thus, an insurance company may test for the level of blood carboxyhemoglobin to tell if an applicant is trying to cheat the company by falsely claiming the preferential rates they offer to non-smokers, but not to moderate smokers. But that does not mean if a smoker temporarily refrains from smoking long enough to get the carboxyhemoglobin in his blood down to the level of a non-smoker while he takes a blood test, that he is entitled to non-smoker premium rates. I consider petitioner was a heavy enough smoker that this habit was a significant contributor to the development of his atherosclerosis and the occurrence of the myocardial infarction.

During his testimony, petitioner was trying to minimize his smoking history. He was savvy enough to appreciate smoking is a risk factor for atherosclerosis and coronary infarction. But when he was talking to the medical professionals in the hospital, looking to them to save his life, he was more motivated to be complete and accurate.

I do not find that petitioner suffered any injury or disability that is related to his employment. He is entitled to no benefits for treatment, temporary disability or permanent disability.

Respondent, as the prevailing party, should submit a form of Judgment consistent with this opinion. When the Judgment is signed, that will constitute the final action of the Division of Workers' Compensation.

The form of Judgment should provide for the payment of a stenographic reporting fee to the Trainor Reporting Service of $900, payable by the respondent.

. . . . . . . . . . . . . . . . . . . . . . . . . . . William L. Boyan

Judge of Compensation

August 24, 2000