The recent decision in Sykes v. George Harms Construction Company, Inc., No. A-3320-20 (App. Div. September 28, 2023) addresses an unusual claim involving a worker who was found passed out on the job while operating an excavator. The petitioner filed a motion for medical and temporary disability benefits seeking an MRI of the neck, low back and shoulder. Respondent opposed the motion, and the petitioner’s motion was tried to a conclusion.
No one really knew for sure what happened on April 30, 2019 but it was clear that petitioner was found unconscious in the excavator he was operating. Petitioner was a long-time employee of the company who was operating a 56,000 pound excavator on a bridge construction project in Manahawkin, New Jersey. The excavator and a separate dump truck were on the shoulder of Route 72. There was a line of barriers separating the workers from traffic. Petitioner was removing precut asphalt from the shoulder and depositing the asphalt in a dump truck. His job required banging on a precut piece of asphalt with the bucket of the excavator to break it off and then go below the piece and scoop it up. Once he had the asphalt in the bucket, he would swivel the cab around without moving the excavator tracks and dump the asphalt in the dump truck.
After about two hours of doing this work, petitioner said that a piece of asphalt broke loose, causing the excavator to pop backwards and the front part to lift up. Petitioner further elaborated that the excavator “jolted” when he attempted to lift a piece of asphalt, causing him to “have a feeling of falling backwards” after which he had no specific recollection. Petitioner admitted to a history of seizures. He believed that his head or body must have contacted something in the excavator. At the time of his hearing, petitioner had not worked since the date of the accident and was experiencing headaches and pain in his neck, back and shoulder.
The dump truck driver said that he was responsible for watching the excavator through his side mirror for hand signals from the operator that the truck needed to be moved forward or backward in loading the asphalt. He noted that after petitioner scooped a bucketload of asphalt and swung the arm of the excavator over the dump truck, there was a pause. He then heard the tracks of the excavator and watched it start to pivot sideways and move toward the travel lanes. This motion pushed a barrier about two to three feet into the travel lane and deposited a two-foot by three-foot piece of asphalt onto the roadway.
The dump truck driver radioed another worker to check on petitioner. The dump truck driver then hopped over the barrier to waive off traffic from the hazard. The worker who was sent to check on petitioner found him “passed out.” He was “sitting upright” in the upholstered operator’s chair, as he normally would, but his head was hanging down toward his chest. The worker engaged the safety lever and climbed up into the cab to turn off the machine. He reached across petitioner’s body to get to the keys when petitioner woke briefly and seemed to take a swing at him before passing out again.
The foreman also testified and said that petitioner was initially unresponsive but eventually climbed out of the excavator without assistance. The foreman then used the excavator to pull the piece of heavy asphalt out of the road and slide back the barrier.
The CEO of George Harms also testified in the case. He said that the operator’s chair included a headrest, and that there was at least a foot of space between the headrest and the rear cab window and approximately 18 inches between the chair and the windows on either side. He added that the tracks of the excavator are controlled by foot pedals. He surmised that petitioner’s foot must have activated one of the pedals, causing the excavator to pivot into the barrier.
The Honorable James Robertson, Judge of Compensation concluded, “neither the tamping of the bucket to break the asphalt nor the contact of the excavator with the Jersey barrier would have created the type of motion needed to create the injury that the petitioner claims that he suffered.” The judge did not accept petitioner’s contention that “the jolting of the excavator and pulling up that piece of material” caused him to strike his head, rendering him unconscious. The judge based this conclusion in part on the dump truck driver’s testimony that after petitioner had the asphalt in the bucket, he maneuvered the arm of the excavator over the dump truck and paused. The judge concluded that this showed that petitioner was conscious “all the way around until the arm of the excavator was over the truck.”
The most interesting aspect of this case deals with case law on idiopathic cardiovascular events and related physical injuries. Often a non-work stroke or heart attack occurs at work, followed by a fall causing a new injury. Respondent need not pay for the cardiovascular incident, but respondent would have to pay generally for the physical effects of the fall if there is clear causation. Petitioner’s counsel analogized to this well-defined principle of law. He argued that regardless of whether it was a seizure that caused petitioner’s loss of consciousness or whether he struck his head during use of the excavator, his loss of consciousness occurred during the course of employment. Therefore, petitioner contended, the physical injuries must be compensable. Judge Robertson rejected this argument stating as follows: “there is no presumption that once a petitioner goes unconscious, that whatever else he claims happened to him must have happened during the course of the accident.”
Petitioner’s counsel cited to various cardiovascular incident cases that have been decided over the past 100 years where related physical injuries were held compensable. Judge Robertson distinguished those cases: “[i]n all of those cases . . . there was no doubt what happened to the petitioner after the loss of consciousness.” He noted that in Reynolds v. Passaic Valley Sewerage Comm’rs, 130 N.J.L. 437 (Sup. Ct. 1943), aff’d, 131 N.J.L. 327 (1944), Mr. Reynolds’ face got pressed against a burning coal stove. In Spindler v. Universal Chain Corp., 11 N.J. 34 (1952), Spindler severely injured her hip when she tripped and fell on a concrete floor. In George v. Great Eastern Food Products, Inc., 44 N.J. 44 (1965), a worker suffered an apparent non-work cardiovascular event and fell to the floor fracturing his skull. The skull fracture was found to be compensable on the theory that the concrete floor was part of the work premises and contributed to the injury.
Judge Robertson found that there was no evidence that petitioner “suffered the impact that he thinks he did to cause the injury to the shoulder and the back.” The judge concluded that petitioner’s testimony was not based on what he saw or heard but only on “theory or conjecture.” He also based his decision on the testimony of respondent’s various witnesses who refuted the petitioner’s version of how he suffered physical injuries. Medical experts also testified in this case, but the judge found that this case turned on the facts. He was not persuaded by the testimony of the medical experts because their testimony on causation was premised almost entirely on the factual version petitioner provided to them.
The Appellate Division affirmed the decision of Judge Robertson on the ground that there was sufficient credible evidence to support the trial judge’s conclusions and affirmed “for the reasons expressed in Judge Robertson’s thorough and thoughtful opinion.”
This case is important to practitioners and employers for two reasons. First, there are not many published or unpublished appellate cases dealing with cardiovascular events and subsequent physical injuries. Secondly, this case represents a sub-type of cardiovascular event followed by alleged physical injury where the cause of the physical injury remains at issue. In the reported cases noted above, the cause of the physical injury is quite clear. For example, several involve cardiovascular events followed by a fall onto concrete resulting in a fractured skull. In that type of case, causation is clearly established, but in this case the facts were always in dispute as to the cause of any head, neck, back or shoulder issue. The trial judge rejected the argument that there is a presumption that the subsequent physical complaints and injuries must be related to the idiopathic cardiovascular event.
One final lesson in this case should be considered by practitioners and employers in regard to trials in general. There are cases that depend heavily on facts and there are likewise cases that depend mostly on law or medicine. This was a fact-based decision. All too often employers and their attorneys fail to make that distinction and do not produce fact witnesses to support their denial of a case. In a dispute over the facts where the case turns mostly on the facts, defense needs to bring in lay witnesses. This was a well-tried case by the respondent and its counsel dealing with complicated facts and legal issues, and respondent was able to produce credible testimony from a number of key fact witnesses. The trial judge’s decision, which was endorsed completely by the Appellate Division, turned on the credibility of the testimony produced by respondent’s lay witnesses.
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