JOBO VALENTIN v. CHARLES BESELER COMPANY

 
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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1627-04T51627-04T5

JOBO VALENTIN,

Petitioner-Appellant,

v.

CHARLES BESELER COMPANY,

Respondent-Respondent.

________________________________________________________________

 

Argued November 29, 2005 - Decided

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from a Judgment of the Division of Worker's Compensation, CP1997-008823.

James J. Stapleton argued the cause for appellant (Stapleton & Nisenson, attorneys; Mr. Stapleton, of counsel and on the brief).

Francis T. Giuliano argued the cause for respondent.

PER CURIAM

In this worker's compensation case, petitioner, Jobo Valentin, appeals from a judgment dismissing his claim petition for disability arising out of a heart attack he suffered on January 24, 1997. Petitioner claimed his heart attack was caused by the stress and strain of his job on that day. Alternatively, petitioner contended that if the heart attack was not caused by the work, the resulting disability was nevertheless compensable under the humane instinct doctrine because his employer was negligent in failing to provide him medical assistance when he became ill while on the job. After a trial, the judge of compensation rejected both theories. On appeal, petitioner argues that the record does not support the conclusion that the heart attack was not caused by the work. Petitioner further argues that his disability is compensable under the humane instinct doctrine because his employer had a duty to render or procure medical aid for him because he became ill during the course of his employment, and the employer's failure to do so was negligent, caused him further bodily harm, and rendered his heart attack to have arisen out of and in the course of his employment. We reject petitioners arguments and affirm.

On January 24, 1997, petitioner was fifty-nine years old. He had been employed by respondent, Charles Beseler Company, since 1994 as a machine operator. On January 24, 1997, petitioner began work at about 7:15 a.m. He took a coffee break at 10:00 a.m. and a half hour lunch break beginning at 11:30 a.m. Petitioner contended his department was short staffed because "a couple of guys left and they never replaced them," as a result of which he was under increased pressure to keep up with productivity. Petitioner had been working under the same conditions for the previous two weeks, after returning from a vacation. In his trial testimony he stated he felt fine during that period, including the morning of January 24, 1997.

Petitioner claimed his symptoms began when he went to lunch:

When I went for lunch I started feeling a little dizzy, but I didn't know it was something like a heart attack, or something like that, you know? When I come back then a little while I still feeling pain on my chest. Pain on and off. I thought that it was gas. I never thought that it was a heart attack.

Petitioner returned from his lunch break and resumed working. He described what happened next this way:

Well, I started feeling a little pain in my chest, you know? The pain was on and off. But I thought that it was gas. I thought that it was gas. I keep working. I keep working, and the pain started more and more. All of a sudden the pain never stopped. It was killing me, you know? I was weak. I was sweating, you know? I was dizzy and I can't even lift the pieces anymore. My hand hurts.

So I stopped and I went to see my supervisor. I told him that I had that problem. I had pain in the chest and I don't feel well. I was dizzy.

Petitioner's supervisor directed him to go to the personnel office, which, like his work station, was on the first floor. It took petitioner about one minute to walk there. The person in charge, Valerie Powell, was not in the office, so petitioner walked up the stairs to the second floor to locate her. When he encountered her on the second floor, he described his symptoms to her and asked to be sent to the clinic. The work place was in Linden. The employer, through its worker's compensation carrier, maintained a clinic in Rahway. The company policy was that employees would be sent to the clinic only for work-related injuries. Powell informed petitioner that she could not send him to the clinic under the circumstances. According to petitioner, she stated, "We don't send people to the clinic with chest pain." Petitioner expressed his wish to go home. The entire conversation lasted about one minute. Petitioner did not ask Powell to call for an ambulance, to call a family member to come and get him, or for any other form of assistance.

Petitioner left the work place, walked to the parking lot, and drove to his home in Newark, a drive of about forty-five minutes. He immediately had his daughter drive him to Saint Michael's Medical Center in Newark. He arrived there at 3:15 p.m. He was diagnosed with an acute myocardial infarction. He was admitted and, after receiving treatment, was discharged with resulting disability. He has not been able to resume work.

Prior to January 24, 1997, petitioner enjoyed an active lifestyle. He regularly made all necessary repairs in his house, including painting, fixing walls, plumbing, installing floor tiles, and the like. He used to clean his backyard. He enjoyed playing with his four young grandsons, putting them on his shoulders, and lifting them up. He did the grocery shopping. He used to walk in the park for up to an hour-and-a-half and "play around with my kids, you know, play ball and stuff like that."

The records from Saint Michael's Medical Center conflicted with petitioner's trial testimony regarding the onset of symptoms. In his history, he informed his medical providers that he had been experiencing recurrent chest pain for about one week prior to January 24, 1997. He described the pain as starting behind the sternum and radiating to his neck, accompanied by mild nausea and sweating. This occurred about twelve times a day, for about five minutes each time. When confronted at trial with his prior contradictory statement, petitioner gave conflicting responses, sometimes denying any earlier symptoms and sometimes attributing it to his pre-existing acid reflux condition. But his description of the acid reflux symptoms differed from the symptoms he described to the hospital personnel.

Plaintiff's trial testimony regarding his family history of heart disease was also at variance with information in the hospital records. The records of the January 24, 1997 admission, as well as records from another hospital admission that had occurred in 1990, revealed a positive family history, indicating that petitioner's mother and brother had died of myocardial infarction in their early to mid-fifties. Petitioner gave inconsistent testimony on these issues, and although the details are not completely clear, petitioner finally acknowledged that his brother did begin to have heart problems in his fifties, then suffering from angina, and that his mother did die from a heart attack, although she may have been over sixty.

At trial, each party presented the testimony of a medical expert. Petitioner's expert, Dr. Malcolm Hermele, was not a treating physician. Based upon his review of medical records and examinations of petitioner, he opined that prior to January 24, 1997, petitioner "had a slight heart problem." He acknowledged that petitioner had a history of high blood pressure. He was not aware, however, of any family history. Nor was he aware of the chest pains petitioner had reported for the week preceding the heart attack. When presented with that information, Hermele believed petitioner was experiencing symptomatic angina.

In Hermele's opinion, petitioner's work effort on January 24, 1997 exceeded "the wear and tear of normal daily living, and the stress and strain of that particular day participated and depressed the heart to a material degree." It was therefore his opinion that petitioner's work effort caused the heart attack.

Hermele further opined that a delay in receiving treatment worsened the effect of petitioner's heart attack. From his perspective, the symptoms began at about 1:00 p.m. He described a small window of opportunity to actually reverse a heart attack: "You need oxygen, you need intervention to increase the vessel, and that only works in the first hour or two. So any delay is detrimental."

The employer presented the testimony of Dr. Joel Duberstein, who examined petitioner on June 12, 2003. In Duberstein's opinion, petitioner's heart attack was not causally related to his work. In his view, petitioner suffered from severe coronary artery disease involving three vessels; significant risk factors were present, including a strong family history of heart disease, hypertension and high cholesterol; there was nothing unusual about the work effort on the morning of January 24, 1997; petitioner was experiencing premonitory angina for a week, and "he would have a heart attack whether he had or had not been going to work." When Duberstein evaluated petitioner, petitioner denied a prior history of hypertension or an awareness of high cholesterol. However, Duberstein obtained that information from the hospital records. Petitioner also denied any family history, which Duberstein also learned from the hospital records.

Duberstein was unwilling to render an opinion as to whether it was medically probable that a delay in treatment caused petitioner to suffer a greater disability than would have occurred if treatment had been rendered sooner after the initial onset of severe chest pains. He said: "I can't say. I mean, there is less than a 50 percent chance. My reason for this is the window of opportunity is usually felt to be four hours, and St. Michael's sees this man approximately three hours after the onset of sever[e] pain of the day in question 1/24/97. I'm not talking about that premonitory pain."

The judge of compensation found Duberstein's testimony more persuasive than that of Hermele. He noted that Duberstein's opinions were more well-informed, being based upon more accurate and detailed medical history. He also found that the hospital records and the detailed diagnosis of the January 24, 1997 heart attack corroborated Duberstein's assessment of petitioner's underlying coronary artery disease as severe, as opposed to Hermele's assessment that it was slight. The judge of compensation credited Duberstein's acknowledgement that petitioner had been working under the same conditions for two weeks and had been experiencing premonitory angina symptoms regularly for one week leading up to the heart attack. Thus, the work effort was not extraordinary on January 24, 1997.

The judge of compensation further found it significant that petitioner's non-work lifestyle was active. Thus, the judge of compensation concluded that petitioner failed to sustain his burden of proof and that Duberstein's opinion was more medically probable. He concluded that petitioner had sufficient risk factors and signs leading up to the event that occurred while at work. Thus, the heart attack was the result of petitioner's preexisting, progressive three-vessel coronary artery disease and his personal risk factors. Petitioner's condition progressed, as evidenced by the premonitory symptoms exhibited for a week leading up to the heart attack.

In reaching his conclusion, the judge of compensation applied the correct legal standards pertaining to causation in cases of cardiovascular injury, as set forth in N.J.S.A. 34:15-7.2 and Hellwig v. J.F. Rast & Co., Inc., 110 N.J. 37 (1988). The judge of compensation was in the best position to evaluate the credibility of the witnesses and to assess the weight to be attributed to the testimony of the experts, who gave conflicting opinions. We are satisfied from our review of the record that the finding that petitioner's heart attack was not caused by his work effort was reasonably reached based upon sufficient credible evidence in the record as a whole, and we will not disturb that finding on appeal. Close v. Kordulak Bros., Inc., 44 N.J. 589, 599 (1965). Further, we extend enhanced deference to judges of compensation, who possess particularized expertise in evaluating such issues. Ibid.

We next address petitioner's alternate argument, that his disability is compensable under the humane instinct doctrine. Our Supreme Court first applied the doctrine in the worker's compensation context forty-five years ago in Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479 (1960). After noting that the common law imposed no general duty upon an employer to provide medical service or other means of relief to an ill or injured employee, the Court stated:

But there is at least one exceptional situation in which there is such a duty, i.e., when an employee becomes ill on the job, and he is rendered helpless to provide for his own care. In that situation the employer must exercise reasonable care to put in the reach of the stricken employee such medical care and other assistance as the emergency thus created may in reason require, so that the employee may have his life saved or may avoid further bodily harm.

[Id. at 489 (citing Szabo v. Pa. R.R. Co., 132 N.J.L. 331 (E. & A. 1945)) (emphasis added).]

In cases where such a duty arose, if the employer acted reasonably in discharging the duty, then there would be no causal relation between the employment and the death or greater disability of the employee because the consequences would have been the same whether or not the employee had been stricken while at work. Id. at 494. However, if the employer breached the duty of care and was negligent by failing to procure the reasonably required medical aid, and if that negligence was a contributing cause of the employee's death or greater disability, then the consequences were causally related to the employment. Id. at 495. This is because "the danger, inherent in the work situation, that others will not satisfy their duty to render aid required by the law, is a risk of the employment." Ibid.

The Court further explained that the same reasoning "applies with equal force to a case where a superior employee or fellow worker gratuitously assumes to render or procure aid, and negligently fails to do so." Ibid. See also Walck v. Johns-Manville Prods. Corp., 56 N.J. 533, 560 (1970); Budd v. Erie Lackawanna R.R. Co., 98 N.J. Super. 47 (App. Div. 1967), certif. denied, 51 N.J. 186 (1968); Lanier v. Kieckhefer-Eddie Div. of Weyerhaeuser Timber Co., 84 N.J. Super. 282 (App. Div. 1964).

Thus, the humane instinct doctrine imposes upon an employer an implied duty to provide reasonably required medical assistance to an employee who becomes ill while on the job where the employee is helpless and incapable of arranging for his or her own care. A similar duty, not applicable here, is imposed if the employer gratuitously undertakes to care for an ill employee and does so in a negligent fashion.

The threshold issue is whether the facts and circumstances of this case gave rise to a duty on Beseler's part to provide medical care for petitioner when he reported to his floor supervisor and Powell complaining of chest pain and asking to go to the clinic. If there was no duty, there is no need to determine whether there was a breach of duty and whether the breach caused harm. Indeed, in his appellate brief, petitioner frames the issue thusly: "The question in this case was whether or not the company had a duty to obtain medical treatment for employees who become ill during their employment."

The judge of compensation concluded that although the employer's response here may have been "less than enlightened," the employer was under no legal duty to provide medical care under the humane instinct doctrine. He found significant petitioner's testimony that after returning from lunch and resuming work he felt pain in his chest but "he didn't know it was something like a heart attack. He thought it was gas. If that was his state of mind, that is the tone of what he told his Spanish speaking supervisor and personnel person . . . ." Sizing up petitioner and evaluating his credibility, the judge of compensation was in the best position to evaluate whether the manner in which petitioner presented himself to his employer's representatives reasonably conveyed to them the sense of a present or immediately impending emergency, in which petitioner was or was about to become helpless.

The negative finding in this regard is well supported by the record evidence, and we will not disturb it on appeal. Close v. Kordulak, supra, 44 N.J. at 599. Petitioner took it upon himself to leave his employer's premises voluntarily and embark upon a forty-five minute drive home. He could have asked the employer to obtain an ambulance by calling 9-1-1, or to call his daughter or someone else to come and get him. He could have gone to a nearby hospital rather than driving home first. He said he did not know where any hospitals were in the area of his workplace, but he could have asked the employer for that information. He was fully cognizant of his situation and capable of making his own decision and carrying it out. Clearly, he was not helpless and incapable of providing for his own care.

 
Further, after finding that the conduct by the employer was not negligent, the judge of compensation found that "nor was such conduct a causal factor contributing to the petitioner's disability. In fact, petitioner took it upon himself to spend 45 minutes driving home and then to be taken to the hospital rather than going directly there himself." The record supports this finding.

Affirmed.

(continued)

(continued)

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A-1627-04T5

December 23, 2005