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Cerracchio v. Alden Leeds

Decided: March 7, 1988.


On appeal from the Superior Court, Law Division, Hudson County.

Furman, Long and Scalera. The opinion of the court was delivered by Long, J.A.D.


[223 NJSuper Page 436] Plaintiff Edward Cerracchio here challenges a judgment dismissing the wrongful discharge complaint he filed against his former employer, defendant Alden Leeds, Incorporated. Plaintiff's complaint alleged that he was injured during the course of his employment with defendant when he inhaled chlorine gas, and that defendant subsequently discharged him because

"plaintiff made a workers' compensation claim and also reported to OSHA that the defendant was in violation." Plaintiff demanded compensatory and punitive damages, interest, costs of suit and counsel fees. Defendant's answer admitted plaintiff's injury and the Workers' Compensation claim, denied knowledge of the OSHA complaint and denied plaintiff's other allegations.

At trial, the following facts were established in plaintiff's case. Plaintiff was a maintenance mechanic at defendant's swimming pool chemicals company. On August 9, 1984, plaintiff was ordered to fix an electrical short which had caused a fire at the plant. The blowers which removed chemical powder and gasses from the air had been turned off. Upon responding to the area of the plant where the electrical short was located, plaintiff noticed an "extreme" chlorine smell. He left the area and obtained a gas mask. Masked, plaintiff fixed the electrical problem and reactivated the blowers. After performing these chores, plaintiff cleaned up a chemical spill that had occurred in the area. While working in the area of the chemical spill, plaintiff noticed a slight smell of chlorine gas even though he was wearing a gas mask. Plaintiff remained in this area for approximately 35 or 40 minutes. Although he did not notice any immediate ill effects, he started to experience a slight scratchy throat and mild nausea after he finished the job. Upon removing the gas mask, plaintiff observed that its cannister had a 1979 expiration date. Plaintiff informed his supervisor, Mark Epstein, of his symptoms and was advised that these ill effects were normal for an individual who had inhaled chlorine. Epstein told plaintiff to go home, drink some milk, and go to bed.

Plaintiff left the plant at about 5 p.m. Upon arriving home, he felt nauseous; his throat was scratchy and he was having trouble breathing. He telephoned his doctor that evening and obtained a prescription for an inhaler, which did not improve his condition.

Plaintiff's doctor notified the New Jersey Poison Control Center, and plaintiff received several telephone calls from the center during the course of the evening inquiring about his condition and the manner in which he had been exposed to chlorine. By the following morning, plaintiff's breathing difficulty had worsened. His wife telephoned defendant and informed one of its employees, Barbara Kruppa, that plaintiff would not be coming into work because he was experiencing chest pain as a result of his inhalation of chlorine gas and that he might have to be hospitalized.

Plaintiff was then admitted to Clara Maass Hospital, with a diagnosis of respiratory failure. He remained hospitalized from August 10 until August 15, 1984. While hospitalized, he experienced chest tightness, difficulty breathing and a scratchy throat. He was treated with oxygen and intravenous medication.

On August 13, 1984, while plaintiff was still hospitalized, his wife again telephoned defendant and advised Barbara Kruppa that plaintiff was hospitalized for chlorine gas poisoning and that he would be remaining in the hospital for the rest of the week. On this same date, plaintiff telephoned defendant and spoke with Mark Epstein. Plaintiff informed Epstein that he was hospitalized for chlorine poisoning and that he would not be returning to work that week. Plaintiff asked Epstein what procedure he should follow in order to have his hospital bills paid. Epstein replied that he was not sure, but that he would speak with the employee who handled defendant's insurance claims. Epstein told plaintiff to keep in touch and let him know when he would be able to resume work.

By letter dated August 13, 1984, defendant sent a report of plaintiff's accident to its workers' compensation insurance carrier, Wausau Insurance Company. The accident report indicated that plaintiff sustained an injury on August 9, 1984, from inhaling chlorine gas during the course of his employment, which resulted in his hospitalization and time lost from work.

Plaintiff testified that he was contacted by defendant's workers' compensation insurance carrier and that this company paid all of his hospital bills. In addition, defendant's carrier paid plaintiff for the time that he missed from work up until the date that his doctor released him. Plaintiff acknowledged that he never personally filed a claim petition with the Division of Workers' Compensation.

While plaintiff was in the hospital, he was visited by representatives of the Poison Control Center who asked him questions and filled out a form. Plaintiff did not sign this questionnaire. The Poison Control Center representatives gave plaintiff the telephone number of OSHA (the agency enforcing the Occupational Safety and Health Act) and instructed him to report his accident to this organization. Plaintiff telephoned OSHA on August 15, 1984, and reported his injury. Plaintiff testified that he "filled out a paper" for OSHA, but that he did not know whether it was a formal complaint. ...

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