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Ciuba v. Varnish

Decided: May 26, 1958.

AGNES CIUBA, PLAINTIFF-APPELLANT,
v.
IRVINGTON VARNISH & INSULATOR CO., RESPONDENT-APPELLEE



On certified appeal to the Appellate Division of the Superior Court from the Essex County Court.

For reversal -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J. Burling, J., concurring in result.

Heher

We have here a dependency action under the Workmen's Compensation Act, R.S. 34:15-7 et seq., brought by the widow of one Frank Ciuba who on April 7, 1955, at the age of 59, suffered an acute myocardial infarction in the course of his employment as a millwright with the defendant corporation at its plant in Irvington, New Jersey, followed by immediate disablement and death ten days later. The attack came shortly after the workman had completed the installation of an oven-drive unit weighing between 200 and 300 pounds.

The deputy director concluded that "the greater weight of probabilities is that the decedent's death resulted from a coronary incident due to progressive heart disease and is not causally related to his employment by reason of any unusual strain or by reason of any occupational disease or hazard"; and the petition for compensation was accordingly dismissed.

The County Court affirmed. The holding there was that "the proofs do not establish that the work being performed was more strenuous than that for which [the worker] had been hired and which he customarily performed or that the work then in hand was done under conditions unusual to his employment," nor the alternative hypothesis that an occupational disease from his exposure to "fumes and heat as the usual conditions attending [his] work * * *

brought about [his] death by reason of their malignant influence upon a heart that was already impaired."

An appeal taken by plaintiff to the Appellate Division of the Superior Court is here by our certification, sua sponte.

Ciuba had been continuously employed by defendant as a millwright from October 1938, usually assigned to a group of workers engaged in the maintenance of machinery throughout the plant which required the "set[ting] up [of] all kinds of equipment, all kinds of machines," weighing as much as 500 pounds, on occasion 1,500 pounds, depending upon the mechanical function. It was work that in its very nature called for varying degrees of physical exertion, according to the weight and dimensions of the mechanism to be set up.

The decedent and a fellow employee, Fruzynski, installed the oven-drive unit. The installation process is thus described in the findings of the County Court: the mechanical apparatus was "a new kind of drive shaft geared to the operation of several ovens as a unit * * * supplanting a shaft of another type"; the unit "had to be raised to a height of eight feet so that it could be connected"; the "raising of the mechanism from the floor and connecting it remained to be done when they started work at 8 A.M." on the day of the mishap (the work had begun the day before); a "rope and pulley contrivance and a two-step platform were the only mechanical adjuncts to their efforts"; while the unit was "on the floor they tied the rope around it and, in the words of Fruzynski, 'we start standing up the unit and put it on the first step'"; the steps had "twelve inch risers"; the drive shaft "was then raised to the second step, Fruzynski pulling on the rope with one hand and with his other hand on the unit, while Ciuba lifted with his hands"; the "unit having been raised to the top step, they 'tip[ped] it over straight up"; Fruzynski "then mounted a ladder and again assumed control of the rope, calling upon Ciuba to resume lifting"; "Ciuba responded"; as he "assisted in the raising, he got up on the first step, and pushed the unit up 'about halfway, [and] we tip[ped] it

over on the beam'"; at "the completion of the raising Ciuba's hands were over his head"; "There then followed the work of lining up the unit with the gear, drilling a hole, and connecting it up, all of which took about twenty minutes"; Fruzynski "estimated that the job was finished about 9:40 A.M."

When the work was completed, Fruzynski and Ciuba repaired with their tools to the machine shop, 100 feet away from the room in which the unit had been installed. They were thereupon assigned to other work; and some 15 minutes later Fruzynski returned to the machine shop and there saw Ciuba walking from the "dressing ...


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