CAROL READING - v. GLEN GERY SHALE and BRICK COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1525-09T3

CAROL READING,

Petitioner-Respondent,

v.

GLEN GERY SHALE and BRICK

COMPANY,

Respondent-Appellant.

___________________________

October 22, 2010

Submitted: September 29, 2010 - Decided:

Before Judges Cuff and Fasciale.

On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 2006-16551 and 2006-16552.

Baumann, Lynes & Viscomi, attorneys for appellant (Thomas E. Miller, on the brief).

Gaylord Popp, LLC, attorneys for respondent (Samuel M. Gaylord, on the brief).

PER CURIAM

In this workers' compensation case, Glen Gery Shale & Brick Company (Glen Gery) appeals from an October 29, 2009 judgment awarding dependency benefits to Carol Reading as a result of her fifty-four year-old husband's death. The primary question is whether Anthony Reading's work effort caused his heart attack in a material way. We affirm the award of dependency benefits, but remand to determine the proper rate.

Anthony Reading worked as a pug mill operator at Glen Gery and participated in the initial phase of making bricks. He enjoyed his job because it was normally not stressful. Usually, the operator stood on a platform and performed a simple task of monitoring equipment mixing water and shale. If the equipment malfunctioned, however, the operator was required to work overtime to make repairs. Overtime work generally involved heavy physical labor.

On Saturday, March 11, 2006, Glen Gery required Anthony to work overtime and repair equipment. While working strenuously in a hot environment, he complained of feeling unwell, suddenly became disoriented, and with the encouragement of a coworker, returned home because he was unable to do the required work. The next day, Anthony sought assistance at an emergency room and was diagnosed as having a heart attack. He was transferred to another facility where he underwent a cardiac catheterization. He died on March 22, 2006.

Glen Gery contended that Anthony's heart attack was related to his preexisting health problems -- hypertension, high cholesterol and diabetes -- and that he would have suffered a heart attack that day regardless of what he was doing. Carol Reading acknowledged that Anthony had preexisting health problems, but argued that the strenuous repair work contributed to his heart attack.

The compensation judge held that Anthony's overtime work contributed in a material way to his heart attack. In reaching that conclusion, the judge found that the work effort was more intense than the normal wear and tear of Anthony's daily living.

On appeal, Glen Gery argues that (1) the finding of causation is not supported by the evidence, and (2) the judge awarded a dependency rate without determining Anthony's actual wages.

Our scope of review is limited. Generally, we are bound to those findings of a compensation judge which "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole," and having consideration for the judge's opportunity to hear witnesses, assess their credibility, and "with due regard to the agency's expertise when such expertise is a pertinent factor." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)), certif. denied, 122 N.J. 372 (1990); see also Brower v. ICT Group, 164 N.J. 367, 376 (2000) ("We are bound by the factual findings of the compensation judge."); Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72-74 (App. Div. 1989) (discussing petitioner's burden and standard of proof and standards governing compensation court decisions and appellate review).

N.J.S.A. 34:15-7.2 governs the standard of proof relating to a claim for dependency benefits as a result of a work-related heart attack. Section 7.2 provides that:

In any claim for compensation for injury or death from cardiovascular or cerebral vascular causes, the 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.

Section 7.2 "imposes a stringent level of proof by explicitly requiring an employee to show that the work effort was 'in excess of the rigors of the claimant's daily living and that the cause of the . . . death was job-related in a material degree. . . .'" Fiore v. Consol. Freightways, 140 N.J. 452, 466-67 (1995) (quoting from S. Labor, Industry and Professions Comm., Joint Statement to S. Comm. Substitute for S. No. 802 & Assembly Comm. Substitute for Assembly No. 840, at 2 (Nov. 13, 1979)).

We now turn to Glen Gery's argument that the finding of causation is not supported by the evidence. The parties agree that the overtime work was more strenuous for Anthony than daily living tasks. Glen Gery required Anthony to change heavy paddles or blades that churned the water and shale. To access the blades, he was required to use a jackhammer to remove hardened material, each chunk weighing between thirty and forty pounds. Once the hardened material was removed, certain blades had to be replaced. To replace the blades, a shaft weighing approximately 200 pounds had to be lifted off the ground by at least two workers who were required to push, lift and pull until each new blade was secured. Anthony worked that day performing intense manual labor in a hot and dusty environment.

Dr. Malcolm Hermele, petitioner's expert, opined that the heart attack occurred on the day Anthony worked overtime, and that his work effort contributed materially to it. Hermele pointed to the results of tests performed the day after Anthony worked overtime to prove when the heart attack occurred. A creatine kinase (CK) enzyme test showed a reading of 1453. A normal reading would be zero. He explained that the CK enzyme is released into the blood stream when there is damage to the heart. Anthony's troponim levels and the result of his brain natriuretic peptide test show that he was experiencing a heart attack. Hermele concluded that a 1453 reading was evidence that Anthony's heart attack occurred within a day or two of the test, during which Anthony performed the overtime maintenance work.

Dr. Jeffrey Kramer, Glen Gery's expert, agreed that the attack occurred on March 11 when Anthony worked overtime, but opined that it was caused because Anthony had unstable angina. According to Dr. Kramer, unstable angina is evidenced by chest pains that develop with activity and subside with rest. This is consistent with a 2004 diagnosis that Anthony "gets shortness of breath on exertion especially at work when he does moderate manual work." On March 11 Anthony was performing heavy manual work, not his usual light work.

Glen Gery argues that the judge misconstrued Kramer s testimony. We disagree. Kramer testified that: (1) the work on March 11 certainly contributed to Anthony's angina; (2) using a jackhammer and lifting heavy blocks of material can accelerate Anthony's condition; and (3) the use of a sledge hammer increased the likelihood of the heart attack. The compensation judge found that Kramer's testimony supported Hermele's conclusion that Anthony's work effort was a significant contributing factor in the heart attack. The judge made that finding because Kramer admitted two things: that Anthony's work effort contributed to his heart attack, and that Anthony suffered a heart attack on the day he worked overtime. Although Kramer opined that Anthony would have suffered a heart attack without working overtime, Kramer's admissions were consistent with Hermele's opinion that the heart attack was caused by Anthony's work effort. In short, there is sufficient credible evidence present in the record, considering the proofs as a whole, to conclude that Anthony's work effort contributed materially to his heart attack.

On the other hand, the judge did not make any findings of fact about Anthony's actual wages. As a result, we remand and instruct the judge to determine the proper dependency benefit to which Carol Reading is entitled.

We affirm the award of dependency benefits, but remand to determine the proper rate. We do not retain jurisdiction.