Original WP 5.1
Version
This case can also be found at 355 N.J. Super. 36, 809 A.2d 167.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5395-00T3
PAULINE FELTMAN,
Petitioner-Appellant,
v.
TRANSISTOR DEVICES, INC.,
Respondent-Respondent.
Argued October 8, 2002 - Decided November 12,
2002
Before Judges SternSee footnote 11, Collester and Alley.
On appeal from the Division of Workers'
Compensation, Department of Labor, Docket No.
96-040948.
James J. Mahoney argued the cause for
appellant.
Daniel A. Lynn argued the cause for respondent
(Braff, Harris and Sukoneck, attorneys;
Christopher A. Diaz, on the brief).
The opinion of the court was delivered by
ALLEY, J.A.D.
Pauline Feltman filed a dependency claim in October 1996 based
on her husband Stanley Feltman's death in December 1994. Feltman's
employer, Transistor Devices, Inc., filed an answer to Mrs.
Feltman's claim in January 1997. Following a hearing held between
March 2000, and January 2001, a judge of compensation dismissed her
claim on May 29, 2001. The judge of compensation set forth his
reasons in a written decision dated May 9, 2001. Petitioner
appeals from the dismissal, and we affirm.
I
The evidence at the hearing included the following. Stanley
Feltman worked as a vice president for respondent Transistor
Devices, Inc., of Cedar Knolls, New Jersey (Transistor). According
to his death certificate, he died of a myocardial infarction at his
home on December 16, 1994. His heart attack occurred within hours
of his return from a business trip he took for respondent to
Lockheed Aircraft Services in Ontario, California.
Pauline Feltman of West Milford, New Jersey, Feltman's widow,
petitioned the Division of Workers' Compensation of the State of
New Jersey Department of Labor in October 1996. Her claim petition
alleged that her husband's fatal myocardial infarction arose out of
and in the course of his employment with Transistor.
Feltman, a designer of power tools, became a vice president of
Transistor when it acquired his company, ACDeCo, in 1983. He
continued as vice president of power supplies -- managing people,
designing tools, executing designs, and meeting with investors and
customers. Transistor's CEO called Feltman's job a "desk job" and
described him as a talented electrical engineer. Feltman traveled
overnight about once a year on business.
Beginning in December 1993, Feltman worked primarily to
establish Transistor as a subcontractor to Lockheed. Transistor
would design hardware to be used in planes Lockheed hoped to
produce for the Air Force. Lockheed had been awarded the
engineering phase of the Air Force contract and hoped to win the
production portion, which would amount to eighty-five million
dollars or more for Lockheed. During the summer of 1994,
Transistor won the first of six potential one-year option contracts
with Lockheed. This first contract represented a net profit of two
million dollars for Transistor, which stood to gain up to thirty
million dollars if retained as a contractor throughout the project.
Feltman was responsible for Transistor's bid and for
negotiations with Lockheed. According to petitioner, the project
could be described as Feltman's "baby." During his last year, he
worked weekends and overtime on this matter, or about fifty to
sixty hours a week according to his co-worker Kathleen Thornton.
The parties dispute the extent to which a potential award of
subsequent contracts hinged on the December 1994 meetings at
Lockheed. Feltman traveled to Ontario, California as Transistor's
principal representative, accompanied by Thornton. Lockheed needed
to be assured that Transistor's components would meet Air Force
specifications. Some changes needed to be made in Transistor's
designs, and this conference included a technical review of such
issues. Thornton maintained the trip was "routine," explaining
that representatives from the Air Force, from Lockheed, and from
the major subcontractors had to review the aircraft plans.
The agenda for Feltman's business trip covered scheduled
meetings for December 13 and 14, 1994. Twelve of the twenty-two
meetings were scheduled on the first day, the remaining ten for the
second day. Each day's schedule provided for a fifteen minute
hospitality session beginning at 8:00 a.m., an hour lunch, and two
fifteen minute breaks. The days were set to end at 3:15 p.m. and
4:00 p.m. respectively. The agenda listed Feltman, along with two
engineers from other companies, as responsible for presenting an
hour and five minute segment on December 14.
According to Thornton, on December 12, she and Feltman took a
three-hour flight to St. Louis, flew four hours from there to
California, rented a car, placed a call to their home office, and
shared dinner and discussion about the meetings planned for the
thirteenth.
The thirteenth marked the first day of meetings, which
constituted a "preliminary design review." Feltman worked all day,
through lunch, and became involved in each meeting. He also gave
a presentation for between thirty and forty minutes about an
electrical upgrade he planned to implement. Following wrap-up
meetings with Lockheed staff, Feltman drove Thornton on a tour of
Los Angeles, to the raceway, and to dinner.
Instead of leaving as planned on the fourteenth, Feltman
learned he had to stay an additional day. Because Thornton left on
the morning of the fourteenth, she reconstructed Feltman's day from
a conversation she had with him during his flight-layover on the
fifteenth. He gave, or helped to give, a total of four technical
presentations. In their phone conversation, Feltman reported
disagreements with a Lockheed engineer about how design changes
should be made and expressed pleasure that each had been resolved
in his favor. Thornton called these disagreements "typical," noted
nothing unusual about Feltman's conduct during the trip, and
indicated that while meetings had been argumentative at times, they
had not been inordinately so.
Mrs. Feltman alone told of Feltman's last hours. He drove
himself from the airport, arriving home before 9:00 p.m. He told
his wife he was glad to be home but was not feeling well. He
relaxed a little, ate some fruit, and reviewed material from the
conference. He went to bed at approximately 11:00 p.m., but it is
unknown whether he fell asleep. Mrs. Feltman awoke as her husband
stood up beside their bed and silently fell backward. She called
"911" for emergency assistance but the police and rescue squad were
unable to revive him.
When Feltman died he was sixty-three years old. His wife
testified that he had had no blood pressure problems although
respondent disputed this. No one alleged he had smoked since
quitting in 1983. All agreed he carried considerable weight on his
six-foot four-and-one-half inch frame. Estimates of his weight
ranged from three to four hundred pounds. Both doctors termed him
"morbidly obese," a state carrying health risks of its own.
There was no doubt that Feltman lived a sedentary life. His
wife noted he had no hobbies and engaged in no exercise. Thornton
remembered him looking like a "couch potato." Leisure activities
for Feltman included enjoying his stereo and his dogs, reading,
watching television, and using the computer.
Thornton recalled Feltman saying he had not felt well
following a vacation he had taken several weeks earlier. Mrs.
Feltman, however, recalled that he had felt relaxed during that
vacation and immediately thereafter. Directly before his trip to
California, Feltman told his wife he did not feel like going. He
explained he did not feel well, was tired, and his legs bothered
him. Mrs. Feltman felt that he was under emotional stress from
missing out on a bonus in November, negotiating with Lockheed, and
anticipating design changes which could flow from the conference.
She reported that he told her he was not feeling well while in
California, regretted having to stay an extra day, and was anxious
to return home.
Two experts testified as to the probable causes for Feltman's
death. There had been no autopsy, and as a result, each expert
concentrated on the paper record. Dr. Bernard Eisenstein testified
for petitioner as an expert in cardiology, and Dr. Joel Duberstein
testified for respondent as an expert.
Eisenstein gave two possible causes of death, a myocardial
infarction or, alternately, a pulmonary embolus caused by a deep
venous thrombosis. Eisenstein opined that the "great stress"
Feltman was under contributed "[i]n a material way[]" to a fatal
myocardial infarction. According to Eisenstein, this stress
included the amount of money involved in the Lockheed contract, the
responsibility of being the one in charge, long work hours, three
days in California involving "very heavy stress and arguments[,]"
and an unexpected additional day in California. He also
acknowledged the "material" contribution of stress Feltman had
experienced in the "weeks and days and hours before" his death.
Eisenstein also considered that a heated argument during the
conference and Feltman's sedentary lifestyle could have contributed
to his death.
Eisenstein's second theory, that a deep venous thrombosis
caused a fatal pulmonary embolus, presupposed Feltman's confinement
in plane seats for a total of fourteen hours during the trip. For
Eisenstein, this amounted to sufficient "prolonged immobilization"
to have caused Feltman's death. Eisenstein held to his theory even
when it was pointed out Feltman traveled in first class and had a
stopover. Because this immobilization resulted from "necessary
flights" Eisenstein opined that this also constituted a "work-
related" cause of death. Eisenstein testified that both of his
theories were likely by a reasonable medical probability, which he
defined to be "certainly more than 50%."
Duberstein brought out certain facts not otherwise in the
record to suggest Feltman had a history of variably high blood
pressure and elevated cholesterol levels. This data apparently
appeared in records from Feltman's regular medical examinations.
(No record of these exams appears elsewhere in the trial record.)
He concluded Feltman died from a myocardial infarction which
resulted from the natural progression of his existing health
conditions. Duberstein was of the opinion that Feltman tolerated
stress well. On cross-examination, Duberstein admitted not knowing
the potential value of Lockheed's contract, that the project had
been like a "baby" to Feltman, that Feltman had been turned down
for a bonus before traveling, or that Feltman addressed members of
the Air Force when he presented to Lockheed.
In his opinion, the judge of compensation began by first
finding that two sections of the Worker's Compensation Act,
N.J.S.A. 34:15-1 to -69.3, applied to Feltman's case because "no
specific day or event" was shown to be the cause of Feltman's
death. Specifically, he found that petitioner had to satisfy both
N.J.S.A. 34:15-7.2, relating to deaths resulting from
cardiovascular causes, and
N.J.S.A. 34:15-31, relating to
occupational disease claims.
The judge of compensation then focused on section 7.2,
explaining how the law in that area had changed. Under the former
standard, represented by Dwyer v. Ford Motor Co.,
36 N.J. 487
(1962), a petitioner need only prove that work effort or strain
"contributed in some material degree to the precipitation,
aggravation or acceleration of the existing heart disease and the
death therefrom." Id. at 493. This standard was, the judge of
compensation noted, superseded by the 1979 amendments to the
Workers Compensation Act, so that in a heart attack death case
"[s]ection 7.2 of the act now requires the work effort or strain to
involve 'a substantial condition, event or happening . . . [which]
in reasonable medical probability caused in a material degree the
cardiovascular . . . death resulting therefrom." We address this
development in the law in detail below.
The judge of compensation dismissed petitioner's claim,
concluding she had not proved by a preponderance of evidence that
Feltman's death met the new standard. He concluded that
petitioner's allegation that work stress had caused Feltman's heart
attack was unsupported because testimony at trial showed that
Feltman handled stress well. Feltman did not "permit the stress of
his job to have any lasting effect on him." More importantly,
Feltman's symptoms "first manifested themselves several weeks
before his California meetings," when he complained to his wife,
and significantly, did not worsen during the trip. In addition,
any stress that Feltman experienced during his California meetings
was short-lived because it ended "when the meetings ended."
The judge of compensation also detailed his reasons for
accepting Duberstein's opinion and rejecting Eisenstein's opinion.
He found that while Duberstein had made certain mistakes as to
facts, they "d[id] not affect his rationale[.]" He categorized
Eisenstein's testimony as a net opinion and at odds with the
credible evidence. In part, the judge of compensation reached this
conclusion because he concluded that Eisenstein had relied upon
many facts not in evidence. For example, he decided Eisenstein
incorrectly assessed the "intensity and duration of the stress"
Feltman experienced. In this regard, he found Feltman had "not
experienced[d] the quantum of stress . . . necessary to cause his
fatal myocardial infarction[.]" With regard to Eisenstein's deep
venous thrombosis hypothesis, for example, the judge of
compensation decided Eisenstein had been wrong about the extent to
which Feltman had experienced prolonged immobilization.
Lastly, the judge of compensation considered Feltman's risk
factors for heart disease: age, high blood pressure, and morbid
obesity. He used these factors to support his finding that the
natural progression of his coronary heart disease, rather than work
stresses, caused Feltman's death.
II
We preface our discussion of the legal principles that govern
this case by reviewing the development of New Jersey law, see the
Workers Compensation Act,
N.J.S.A. 34:15-31 and the Act's 1979
amendment,
N.J.S.A. 34:15-7.2, as these developments are summarized
by the Court in Hellwig v. J.F. Rast & Co., Inc.,
110 N.J. 37
(1988) and Fiore v. Consolidated Freightways,
140 N.J. 452 (1995).
In Hellwig, Justice Stein described the background behind
N.J.S.A. 34:15-7.2. He noted that section 7.2 was enacted against
the backdrop of a trilogy of worker's compensation cases involving
coronary disease: Seiken v. Todd Dry Dock, Inc.,
2 N.J. 469
(1949); Ciuba v. Irvington Varnish & Insulator Co.,
27 N.J. 127
(1958); and Dwyer v. Ford Motor Co.,
36 N.J. 487 (1962). Hellwig,
supra, 110 N.J. at 42.
Seiken held that the presumption was that "injury or death
from heart disease is the result of natural physiological causes."
Seiken, supra, 2 N.J. at 475. In order for a claimant to prove
that the employment was a contributing factor, the Court held that
something of an unusual strain or exertion
beyond the mere employment itself is required
to establish liability; the mere showing that
the claimant was performing his routine,
everyday tasks, when he suffered a heart
attack does not establish a right to workmen's
compensation.
[Id. at 476.]
In 1958, Seiken was reversed by Ciuba, which concluded that a
compensable accident occurred
where a heart ravaged by disease succumbs to
strain or exertion arising from the doing of
the master's work, even though it be but a
normal incident of the service, in no sense
extraordinary, and such as a sound heart could
withstand. It is basic to the statutory
policy that, if strain or exertion attending
the rendition of the service aggravates or
accelerates the progress of a pre-existing
physical infirmity or condition due to either
trauma or disease, and disability or death
ensues, there is a compensable accident and
injury. Such is an untoward event, unintended
and unexpected within the concept of the
statute. The essential inquiry is whether the
disabling injury or death is causally related
to strain or exertion attendant on the doing
of the master's work.
[Ciuba, supra, 27 N.J. at 134-35.]
Although Ciuba overruled Seiken, Ciuba reaffirmed the validity of
the presumption that "injury or death from heart disease is the
result of natural physiological causes." Id. at 138. But Ciuba
also held that
[t]he essential question is whether strain or
exertion incident to the work accelerated the
worker's death. Would his death have occurred
when it did if it had not been for the work in
which he was engaged? Presumably, he had
suffered from heart and arterial
insufficiency. There was evidence of lowered
stamina for a year before the mortal seizure;
but the inference is well-nigh irresistible
that physical exertion attending the doing of
the work aggravated his disease and weakness
of heart and brought on the fatal collapse.
The evidence fairly excludes the hypothesis of
death as the consequence of disease alone.
True, the occlusion and the exertion may have
been a co-incidence. But the exertion could
have precipitated the occlusion to which the
decedent was predisposed by disease; and that
such was the case is the probable or more
probable hypothesis with reference to the
possibility of other hypotheses. Indeed, the
existence of a causal relation in these
circumstances would seem to be well grounded
in common knowledge and experience.
[Ciuba, supra, 27 N.J. at 140.]
In Dwyer v. Ford Motor Co.,
36 N.J. 487 (1962), "the precise
issue raised was the quality of proof that was necessary to
establish that the employee's death from coronary disease was work-
related to a material degree." Hellwig, supra, 110 N.J. at 44.
The Court held that the analysis should focus on the "total or
cumulative effect of the work effort, and not on any single act or
any single exertion beyond that usually associated with the
work. . . ." Dwyer, supra, 36 N.J. at 509.
Hellwig noted that Dwyer was the "most recent of the critical
trilogy of heart disease cases, and was of special significance
because it was targeted by the Joint Statement to the Senate and
Assembly Committee Substitute Bills that resulted in the enactment
of N.J.S.A. 34:15-7.2." Hellwig, supra, 110 N.J. at 44. Thus,
Hellwig pointed out:
Reference to two other observations by the
Dwyer Court is essential to a full under-
standing of the 1979 amendment. First, in
describing the work effort required to
establish causation, the Court observed that
[b]enefits are not lost because the
amount of the work stress was such
that it might or could be duplicated
in routine activity about the home
or in customary movements or effort
while there.
[Dwyer, supra, 36 N.J. at 492.]
Secondly, the standard for determining
the quantum of proof required to establish
causation was described as follows:
Such claimant has the burden of
showing by the preponderance of the
believable evidence that the
ordinary work effort or strain in
reasonable probability contributed
in some material degree to the
precipitation, aggravation or
acceleration of the existing heart
disease and the death therefrom. In
this context, the significance of
"some material degree" cannot be
stated with mathematical precision.
It means an appreciable degree; a
degree greater than de minimis
* * *.
[Id. at 493.]
[Hellwig, supra, 110 N.J. at 47-48.]
Section 7.2 was adopted by the Legislature to counter Dwyer.
The legislative history expressly stated that the legislation was
intended to
[counter] the far-reaching effects of Dwyer v.
Ford in cardiac claims by requiring that a
petitioner prove that the injury or death
involved substantial effort or strain which
was in excess of the rigors of the claimant's
daily living and that the cause of the injury
or death was job-related in a material degree.
[Joint Statement to Senate Committee
Substitute for Senate, No. 802 and Assembly
Committee Substitute for Assembly, No. 840.]
Section 7.2 provides in part:
[T]he claimant shall prove by a preponderance
of the credible evidence that the injury or
death was produced by the work effort or
strain involving a substantial condition,
event or happening in excess of the wear and
tear of the claimant's daily living and in
reasonable medical probability caused in a
material degree the cardiovascular or cerebral
vascular injury or death resulting therefrom.
Material degree means an appreciable
degree or a degree substantially greater than
de minimis.
Hellwig explained that section 7.2 modified Dwyer by mandating
that the work effort must be in excess of the "wear and tear of the
claimant's daily living," in contrast to Dwyer's holding that a
compensable injury occurred even if the work stress "could be
duplicated in routine activity about the home." Hellwig, supra,
110 N.J. at 48.
Section 7.2 also redefined the proof required to establish a
claim. Id. at 49. Dwyer required that the work effort contribute
in a material degree to the heart disease but defined material
degree to mean only "an appreciable degree; a degree greater than
de minimis. . . ." Dwyer, supra, 36 N.J. at 493. Section 7.2
redefined material degree to mean "an appreciable degree or a
degree substantially greater than de minimis."
N.J.S.A. 34:15-7.2.
Hellwig, supra, 110 N.J. at 49.
Lastly, Hellwig noted that section 7.2 required that the work
effort "in reasonable medical probability" caused the
cardiovascular injury or death. Id. at 49. In contrast, Dwyer did
not require a claimant to make such a showing. Thus, Hellwig
observed that in enacting section 7.2, the Legislature "plainly
intended to change the quality of proof necessary to establish that
a coronary incident is work-related." Ibid.
In deciding Hellwig, the Court rejected the position that a
claimant in a heart attack case must show that "the precipitating
work effort in cardiovascular claim cases must be compared with
both the worker's daily home activity and ordinary work effort to
support a conclusion that the injury or death was caused in a
material degree by the work effort." Id. at 39. Instead, the
Court affirmed our conclusion in Hellwig,
215 N.J. Super. 247 (App.
Div. 1987), that "the statutory phrase 'in excess of the wear and
tear of claimant's daily living' was intended to insure that the
critical work effort was more strenuous than claimant's daily
activities 'exclusive of work.'" Ibid.
Fiore v. Consolidated Freightways, supra, involved a truck
driver who claimed that he had sustained an angina attack as a
result of occupational exposure to carbon monoxide fumes. Both the
judge of compensation and the Appellate Division applied section
7.2 to Fiore's claim. The Supreme Court, however, concluded that
N.J.S.A. 34:15-31 was the proper statutory section. Fiore, supra
140 N.J. at 472-73. Section 31, which deals with occupational
diseases, defines a "compensable occupational disease" to "include
all diseases arising out of and in the course of employment, which
are due in a material degree to causes and conditions which are or
were characteristic of or peculiar to a particular trade,
occupation, process or place of employment."
Writing for the Court, Justice Pollock acknowledged that the
language in section 7.2 seemingly applied to Fiore, but ultimately
determined that section 31 was more appropriate because Fiore's
claim involved an occupational disease (exposure to carbon
monoxide) which had caused coronary artery disease. In contrast,
because the Legislature enacted section 7.2 to address Dwyer's
elimination of the presumption that a heart attack is the result of
natural causes, section 7.2 addressed cardiac incidents that
happened to occur in the work place. Id. at 467. Section 7.2 was
less applicable to Fiore because the substance of his claim did not
involve such a cardiac incident. As the Court noted: "The subject
claim, which relates to occupational exposure to carbon monoxide
arising out, and in the course, of Fiore's employment, focuses on
Fiore's working conditions. From our perspective, section 31 more
readily fits that claim." Id. at 470.
Recognizing that section 7.2 imposed a more stringent standard
upon claimants seeking to recover for coronary disease injuries,
however, the Court concluded that an equally enhanced standard
should apply to a cardiovascular claim arising under section 31.
The Court held:
We conclude generally that an employee
claiming an occupational heart disease must
show that the disease is due in a material
degree to causes or conditions that
characterize the employee's occupation and
that substantially contribute to the
development of the disease.
[Id. at 459.]
Hellwig and Fiore thus both indicate that the Legislature and
the courts have been concerned with the compensability of injuries
occurring from cardiovascular disease, and accordingly have held
such claims to a heightened standard of proof.
Turning to petitioner's claim, we note first that the judge of
compensation concluded that petitioner had to satisfy both section
7.2 and section 31, because "no specific day or event" caused
Feltman's death. We are unsure as to the source of this "one day
or event" standard. In any event, we disagree because the record
quite plainly indicates that Feltman's death was the result of the
heart attack he sustained on December 16, 1994. In our view, it is
clear that petitioner's claim falls under section 7.2 because she
seeks compensation for Feltman's "death from cardiovascular . . .
cause[]. . ." N.J.S.A. 34:15-7.2.
Section 31 thus bears little relevance here because, unlike
the claimant in Fiore, petitioner does not allege that Feltman's
heart attack was the result of occupational exposure or disease.
Indeed, petitioner expressly contends that it was error to apply
here the standards for occupational disease claims under section
31.
We are satisfied, however, that the judge of compensation's
erroneous conclusion was harmless. This is because, although he
began by stating that both sections 7.2 and 31 applied, he then
only discussed petitioner's claim within the context of section
7.2. We thus construe the judge of compensation's decision to
ultimately require that petitioner satisfy only the requirements of
section 7.2, not both sections 7.2 and 31, and this application of
the law was correct.
Under section 7.2 of the Act, petitioner had to establish that
(1) Feltman's fatal episode was "produced by the work effort or
strain involving a substantial condition, event or happening," (2)
the work effort or strain was greater than "the wear and tear of
[Feltman's] daily living," and (3) the work strain "in reasonable
medical probability caused" the heart attack "in a material
degree." The burden of proof rests upon the petitioner, who must
prove "a probable or a more probable hypothesis. . . ." Laffey v.
City of Jersey City,
289 N.J. Super. 292, 303 (App. Div.), certif.
denied,
146 N.J. 500 (1996) (citations omitted). Moreover, as the
judge of compensation noted, the presumption is that the heart
attack is the result of natural causes. See Fiore, supra, 140 N.J.
at 467-68 (stating that section 7.2 reinstated presumption that
heart attack is result of natural causes).
Under the standards set forth in Close v. Kordulak Brothers,
44 N.J. 589 (1965), we should not disturb the judge of
compensation's findings, provided they:
"could reasonably have been reached on sufficient
credible evidence present in the record," considering
"the proofs as a whole," with due regard to the
opportunity of the one who heard the witnesses to judge
of their credibility [and] . . . with due regard also to
the agency's expertise where such expertise is a
pertinent factor.
[Id. at 599.]
The judge of compensation first determined that Feltman's
heart attack was not caused by work effort or strain involving a
substantial condition or event. He concluded that the stress
experienced by Feltman during his California trip was not a
substantial event because: (1) Feltman handled stress well, as
evidenced by his ability to relax in California after the day-long
meetings; (2) Feltman's symptoms of discomfort first manifested
themselves several weeks before his trip; and (3) he did not
complain of any cardiac symptoms during his business trip.
Thornton's testimony provided credible evidence to support the
judge's conclusions. First, Thornton reported no apparent decline
in Feltman's health during the trip. Second, he conducted himself
normally throughout the trip. Third, Feltman told Thornton during
their December 15 telephone conversation that he was pleased with
the outcome of the meetings in California. Thornton's testimony,
combined with Duberstein's opinion and with the earlier
manifestations of the symptoms of discomfort, support the finding
that Feltman's trip to California failed to constitute "a
substantial condition, event or happening" in the context of
N.J.S.A. 34:15-7.2.
With respect to section 7.2's second requirement that the work
effort or strain be greater than "the wear and tear of the
claimant's daily living," the judge of compensation accepted
petitioner's claim that Feltman's work activity was more strenuous
than his ordinary life pursuits. He then found, however, that
petitioner had failed to meet the third requirement, that in
reasonable medical probability, the work strain materially caused
the heart attack. Because of Feltman's own risk factors of age,
high blood pressure, and morbid obesity, he concluded that the
heart attack was the result of the natural progression of Feltman's
coronary artery disease.
These findings were plainly based on credible evidence in the
record below. It was uncontroverted that Feltman was morbidly
obese, and his health records indicated that he had suffered from
high blood pressure. There was no evidence to suggest that Feltman
had engaged in either a course of treatment or a change in
lifestyle that might have lowered that pressure. Respondent's
expert, Duberstein, explained that obesity, hypertension and being
of the male sex, were all risk factors for a myocardial infarction.
Duberstein further opined that Feltman's heart attack had been
caused by the natural progression of coronary artery disease.
Nonetheless, petitioner contends that the decision appealed
from was erroneous. First, petitioner submits that because the
judge of compensation acknowledged that petitioner had "satisfied
the Hellwig requirement and proved that Mr. Feltman's work activity
was more strenuous than his ordinary life pursuits," petitioner
thereby overcame the presumption that the heart attack arose from
natural causes.
We are unable to agree. Feltman's sedentary existence and
lifestyle outside of work are undisputed. It is not clear,
however, that his lifestyle outside of work did not indeed cause
his heart attack. A lesser degree of strain outside of the
workplace does not necessarily compel the conclusion that such a
lifestyle, in the absence of work stresses, would not in any event
lead to death from coronary problems.
Moreover, petitioner mistakes the law in contending that the
judge of compensation required her not only to prove that her claim
conformed with the principles of Hellwig, but also to prove that
Feltman's trip and the circumstances of the trip caused his death,
not the circumstances of his non-working life. As we have noted,
the judge of compensation specifically found that petitioner had
satisfied the Hellwig test that Feltman's "work activity was more
strenuous than his ordinary life pursuits[.]" But to require her
to also prove that the work activity was causative within the
analytical framework discussed in Hellwig and Fiore is not to
require her to prove her claim twice. Rather, petitioner still
must meet the other requirements imposed by section 7.2, namely
that the work effort, even where the work activity has been
determined to be more strenuous than ordinary life activity, caused
the injury or death. It would be illogical to conclude that a
finding favorable to the petitioner on the first issue is
necessarily dispositive of the second issue.
Finally, we address petitioner's contentions that the judge of
compensation used "unsupported medical musings" to anchor his
decision, citing Lesniewski v. W.B. Furze Corp.,
308 N.J. Super. 270 (App. Div. 1998). Petitioner in particular disputes the judge
of compensation's acceptance of Duberstein's opinions and his
rejection of Eisenstein's opinions.
A subtext in the judge of compensation's opinion seems to be
an underlying reservation about the effect on Eisenstein's
testimony of a hypothetical question which is not provided in the
record. Additionally, during the hearing the judge of compensation
warned, "This court . . . will base its decision on the evidence
and only on the evidence adduced at this trial. This is the
doctors' understanding of the testimony. If . . . he is not
correct, I will refer to it in my decision[.]" A reading of
Eisenstein's testimony demonstrates a real concern that
Eisenstein's understanding of the facts may have been unduly
colored by the hypothetical. Eisenstein stated he assumed all the
facts in the hypothetical to be true and "depended a great deal on
the hypothetical question." Yet, the hypothetical had been
prepared before Eisenstein knew all the facts. Additionally,
Eisenstein relied upon communications with Mrs. Feltman not in
evidence, and noted that he "assumed everything in her
correspondence to be true."
In the final analysis, the judge of compensation's discounting
of Eisenstein's testimony is entitled to deference under Close,
supra, which aims to prevent us from engaging in unwarranted
second-guessing of the fact finder. The judge of compensation had
the opportunity to hear testimony from both Eisenstein and
Duberstein, and from the vantage of appellate review we see no
basis to depart from his thoughtful decision to accept Dr.
Duberstein's opinion and to place little reliance on that of
Eisenstein. The decision is grounded in substantial evidence.
Affirmed.
Footnote: 1 1Judge Stern did not participate in oral argument, but has,
with the consent of counsel, been added to the panel deciding the
matter.
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