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Kiczula v. American National Can Co.

April 14, 1998


Argued: March 31, 1997

On appeal from the Division of Workers' Compensation.

Before: Judges Dreier, Keefe and P.g. Levy.

The opinion of the court was delivered by: P.g. Levy, J.A.D.

In this workers' compensation case, petitioner Irene Kiczula received a fifty percent permanent partial disability award when the trial Judge found that her pulmonary disease, known as Wegener's granulomatosis (WG), was exacerbated or aggravated by her employment on an assembly line that made steel cans. The employer, in this appeal, challenges the sufficiency of the evidence to prove that petitioner's work accelerated or aggravated the disease. We disagree with the employer's arguments and accordingly, we affirm.

Petitioner filed a claim with the Division of Workers' Compensation, contending that during her employment with respondent she was exposed to "dust, fumes, and other deleterious substances" and had therefore suffered injury to her lungs. The Judge found that petitioner had a fifty percent partial total disability and granted a judgment for payment of $170 per week for 300 weeks.

In 1973, petitioner began work with American National Can Company. She worked in the "assembly department," in which aerosol cans were made. Throughout her time there, petitioner noted "a lot of fumes, lot of odor, smell, a lot of different [odors] that would, you know, aggravate your breathing." These fumes would come from the solder and from the solvents that were being used, including methyl ethyl ketone or MEK. Other departments of the company would also generate fumes that could be smelled at her work station.

Petitioner's description of the work environment was corroborated by Ulysse Perry, a 38-year retired employee of respondent. He stated that the air quality in the plant was poor, due in part to the obstruction of windows in the plant, and ventilation was also generally ineffective. Certain "extremely hazardous" solvents could not be handled unless wearing gloves, and they also added to the air contamination at the plant. A supervisor in the department where petitioner worked, Lou Ferraro, testified and disputed some of petitioner's descriptions of the work environment.

Although she did not want to, petitioner was forced to stop working in November 1984 when she was first admitted to the hospital for gynecological problems. She worked again in June 1985 and then from October 1985 to August 1986. The reason she had to stop working at those various times was because she couldn't breathe properly, was weak, and experienced wheezing and coughing. Her medical problems have included pain in her feet, legs, chest, arms, and back, general weakness, and difficulty breathing. She still cannot walk far or be active long without becoming fatigued.

The WG was first discovered in a December 1984 hospital visit. The previous month, petitioner had been in the hospital, but no pulmonary problems were observed then. In being treated for the WG, she had various hospital stays from 1984 to 1986; her trachea was replaced in December 1986. The disease is now in remission. Petitioner notes she has never smoked nor does she have allergies.

Dr. Jeffrey Nahmias, testifying for the petitioner, said that petitioner told him of the various fumes to which she was exposed throughout her work for respondent. Dr. Nahmias reported that in December 1984, an open lung biopsy procedure was done on petitioner, which led to the diagnosis of the Wegener's granulomatosis. The disease affected her sinus, nose, trachea, lungs, and upper and lower airways. She was put on medication, including Cytoxan, which caused various side effects, ultimately requiring that petitioner discontinue its use. This potentially life-threatening disease was treated with some success, and by November, 1995, her lower airways showed significant improvement even though her upper airways remained troubled. He thus noted that the condition was permanent. The doctor also opined that the disease was not caused by petitioner's exposures at work.

Significantly, however, the doctor reported that "her symptoms of nose and eye burning, wheeze, shortness of breath, cough, weakness, et cetera, were very much aggravated at the job site and that these symptoms were much less present on the weekend at home away from her job site." Ultimately, asked whether her work conditions exacerbated or accelerated the disease, the doctor replied that "I think most certainly it was exacerbated and the whole lung disease processes sped up by exposure to the chemicals and dusts at work." After reviewing a hypothetical example which tracked the petitioner's testimony about the conditions of her workplace, the doctor confirmed that to a reasonable medical probability, there was a causal link, not between the job and the disease itself, but between the job and the "severe exacerbations" of the disease. He did note, however, that petitioner seemed to have no pulmonary problems during her first eleven years on the job.

Dr. Nahmias explained with some specificity why he linked petitioner's job with the exacerbation of her disease. He stated that both the petitioner's description of the sequence of her symptoms, as well as the changes in clinical findings he made over the course of time, supported this view.

The most important thing hearing from the patient was about the significant improvement when she was away from the job; like on the weekends her breath was much easier, less cough, less wheeze, less dyspnea, although, don't get me wrong, it was still present but it was certainly most exacerbated while on the job.

Over the course of time ... the pulmonary function studies have shown traumatic [sic: probably "dramatic"] improvement ...

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