CP# 2010-6282 J.K. v. Audubon Savings Bank
NEW JERSEY DEPARTMENT OF LABOR
& WORKFORCE DEVELOPMENT
DIVISION OF WORKER’S COMPENSATION
CAMDEN VICINAGE C.P. # 2010-6282
|Petitioner||: DECISION ON|
|: MOTION FOR MEDICAL &|
|v.||: TEMPORARY BENEFITS|
|AUDUBON SAVINGS BANK||:|
BEFORE: HON. GEORGE H. GANGLOFF, JR.
JUDGE OF COMPENSATION
Danielle Chandonnet, Esquire
Shebell & Shebell
Attorney for Petitioner
Kathleen Burghardt, Esquire
Styliades, Jackson & Burghardt
Attorney for Respondent
This matter came before the Court on motion for medical treatment and temporary disability benefits filed by the petitioner, J.K. Ms. K, an employee of the respondent, Audubon Savings Bank, claimed, via the motion, that a course of occupational events allegedly caused her to suffer psychiatric distress and a need for medical treatment.
The testimony in this matter was extensive and involved petitioner, petitioner’s co-workers and past and present supervisors of petitioner’s department within the bank. Expert psychiatric testimony was also proffered both in support of and in opposition to petitioner’s claim. After due consideration of the testimony provided by the numerous witnesses, the Court finds the following facts:
Petitioner was originally hired by the respondent, Audubon Savings Bank as a bank teller approximately 20 years ago. Sometime, in or around 1992, the petitioner first crossed paths with another employee named R.F. At that time Ms. F was still in college and was working as a part-time teller within the bank. The testimony revealed that when Ms. F was originally hired by the bank, petitioner trained Ms. F as to the duties involved in being a bank teller.
In the years that followed, petitioner was ultimately promoted to the position of being a secretary/mortgage processor within the respondent’s loan department. Her duties included processing loan paperwork, and confirming payment of taxes and insurance premiums on mortgaged properties. Ms. F, after completing college, stayed in the employ of the respondent as well. She too was promoted from her original part-time teller position. Ms. F advancement within the bank was greater than that of petitioner. Ms. F advanced from being a part-time teller to loan processor, to being appointed as a branch manager of the Mt. Laurel branch of the bank. Ultimately Ms. F was promoted to the position of Loan Officer in approximately 2004 and she was transferred to the Audubon “main office” of the bank. When that transfer took place it was Ms. F who became the petitioner’s immediate supervisor.
When Ms. F became petitioner’s supervisor, difficulties arose. Petitioner testified that she was overworked and that R. F. was prone to scream at her. Petitioner described specific events wherein R.F. allegedly screamed at her about an overtime issue and R.F. allegedly screaming at her in front of another employee. As to the latter event, petitioner testified, “There was a girl there who went to their bosses and reported it to them because they couldn’t believe how horribly she stood there and yelled at me. Then she yelled at me because my cell phone rang while I was sitting there.” Petitioner testified that co-workers L. R., S. E. (who both testified) and an employee named C (who did not testify) all witnessed this screaming on one occasion or another.
Neither S. E. nor L. R. corroborated petitioner’s claims of R. F. repeatedly screaming at her. Ms. E. testified that the office area where they all worked was relatively small. She described, “we were really just on top of each other.” Based on the description of the work area, the Court finds that Ms. E. and Ms. R. had ample opportunity to observe the interactions between the petitioner and Ms. F. on a daily basis. The lack of corroboration of repeated screaming events, given the work area described, is curious to say the least.
The Court also found it curious that S. E. described, “… a lot of provoking back and forth…” between the petitioner and Ms. F. After hearing petitioner’s testimony, it sounded to the Court that petitioner was being berated by Ms. F. regularly. Ms. E., who testified on behalf of the petitioner, dispelled that initial impression when she testified, “I just think sometimes J.K. was looking for things, you know, to just provoke R.F. You know, it was evident at times. And we would all talk to J.K. ‘J.K., let it go. Just let it go.’” Ms. E. described the overall relationship between petitioner and Ms. F. was not a one-sided situation where Ms. F. yelled at the petitioner. In fact, Ms. E. described it as , “two people that were, you know, hitting [horns]. They’re two very strong minded women just not finding common ground – is the best way I can describe the situation.”
Ms. E. also refuted petitioner’s claims of an unduly burdensome workload. Ms. E. testified that the petitioner had a lot of freedom with regard to her daily duties. Ms. E. testified “you know J.K. had a lot of flexibility there. She takes cell phone calls. She meets with her parents in the lobby when they banked there. You know, she had a nice job that way. You know R.F. never told her you have to sit at your desk, and you can’t do this, or can’t do that.”
Ms. E. also refuted petitioner’s testimony that R.F. was the sole source of animosity in the office. Ms. E. testified that the petitioner frequently referred to Ms. F. (behind her back) as the “Princess” and on other occasions referred to her as the “Witch.” Ms. E. also recounted that petitioner was also heard to lament, “I’m the one who trained her.” Ms. E. also described repeated occasions wherein she would hear Petitioner “mumbling and repeating something that somebody is saying…” Ms. E. testified that petitioner’s mumbling comments got to the point that, “ I lost it the one time where I said, ‘J.K., you got to let it go. It’s between you and R.F..’” Overall, Ms. E. described “…there was a lot of hostility there always about R.F.’s advancement there, and J.K. not having the same advancement.” In summing up her observations of petitioner’s interaction with Ms. F., Ms. E. testified, “J.K. is a spiteful person. I mean she just had stuff inside of her that you couldn’t imagine was that spiteful.”
The Court found the testimony of Ms. E. to be credible. To say the least, Ms. E.’s testimony was quite contradictory to the testimony of petitioner.
L.R. also testified. Ms. R. testified that she too was well aware that petitioner harbored animosity towards Ms. F.’s advancement at the bank. Ms. R testified, “I know she didn’t feel she [R.F.] should have been over her from speaking with her.” Ms. R. acknowledged that Ms. F. was the type of supervisor that “if she felt she was right about an issue of an employee, she would let them know that and voiced her opinion.” However, Ms. R. did not corroborate petitioner’s testimony that Ms. F. loud or harsh in airing her opinions. According to Ms. R., R.F.’s “general attitude was that, you know, she wanted you to know how she felt about something, and she’d tell you.”
Ms. R. testified credibly as well. Ms. R., like Ms. E., seemed to describe a very different office dynamic than what was relayed by the petitioner.
Ms. F.’s prior supervisor, J.F. was also called to testify on behalf of the petitioner. Mr. F. did not corroborate petitioner’s testimony about being screamed at by R.F. either. Mr. F. stated, “There was no yelling that I could tell was yelling. You could tell if they would have a debate.” Mr. F. also did not corroborate petitioner’s claim that her workload was overwhelming. When asked about the petitioner’s job duties, Mr. F. testified “ I don’t think the expectations for J.K. were unreasonable… I don’t think the expectations of what were expected of her were out of the ordinary. They weren’t expecting her to do things she really wasn’t capable of doing.” In fact, Mr. F. testified that “I had discussion with J.K. about …what her expectations were. And you know, that she had to make that decision of meeting those expectations and moving on. …it was just kind of putting people on notice that you know, she was either going to have to meet the expectations or she was going to have to move on.”
Ms. E., Ms. R.and Mr. F. testified credibly and for the most part consistently. Their testimony as a whole, seemed to portray petitioner as somewhat resentful of Ms. F. In many instances these witnesses not only failed to corroborate the petitioner’s description of the workplace, they contradicted the petitioner on many key aspects of her testimony. Specifically, none of these witnesses supported
petitioner’s claim that Ms. F. screamed at her; they all contradicted petitioner’s claims that Ms. F. was unreasonable in her work demands; and they all contradicted petitioner’s claim that she was being overworked.
The respondent also produced fact witnesses in opposition to petitioner’s motion. The respondent called K. M. as a witness. The testimony revealed that in September 2009, Mr. M. replaced Mr. F as Ms. F.’s supervisor. Mr. M. testified that after being hired by the respondent he became familiar with petitioner as Ms. F.’s subordinate. Mr. M. testified, as did the witnesses before him, that he never heard or observed “yelling” taking place between Ms. F. and the petitioner. Mr. M. also vehemently disputed other key aspects of petitioner’s testimony.
Specifically, Mr. M. refuted petitioner’s testimony that she had a lengthy meeting with him about her concerns over Ms. F. Petitioner testified that such a meeting took place when ,
“[I] realized I couldn’t do [the job] anymore when I got my review in 2009…It was a carbon copy of the review that I gotten the previous five years….It was always negative. We met afterwards, and we discussed it and there’s room on there for comments and comment six, I put always negative, never anything positive. No need for discussion. I have had enough and we had just hired a new gentleman that was taking over J. F.’s place. His name is K. M. He called me to his office and it was the first time we talked since he had worked with the bank. We talked for a good hour. I explained it to him. I informed him of everything and why I had written what I did. I said I had worked a lot of places. I have worked with a lot of different people. I never had to deal with this before.”
Mr. M. testified that such a conversation never took place. When asked about Petitioner’s version of the events of that meeting, Mr. M. testified “[Petitioner] stated she met with me, I believe it was for an hour, concerning her job performance and that’s not correct. It was in passing that I asked her why she wrote a comment on the bottom of that appraisal.” The comment said “Always negative, never positive comments. No need to be discussed.” Mr. M. testified that when he asked Petitioner about the comment, Petitioner replied “there’s no need to discuss it. Don’t worry about it.” As is obvious, Mr. M.’s version of events differs markedly from the “meeting” that was described by the petitioner.
The Court finds that the witnesses, both for and against the petitioner, continuously contradicted the testimony of the petitioner throughout this motion hearing.
Setting those numerous testimonial contradictions aside, the Court also found petitioner’s description of her “job performance reviews” compelling. According to the petitioner, those yearly reviews were “always negative, never positive.” Much time and testimony was spent exploring why the petitioner felt that way. In that exploration, the actual written performance reviews were marked into evidence. Those reviews encompassed the years 2004-2009 (the time period wherein petitioner was supervised by Ms. F.).
Those documents revealed as follows:
- in 2004, Petitioner’s rating was a 73 or “good;”
- in 2005, Petitioner’s performance rating improved to a 78 still in the good range;
- in 2006, Petitioner’s performance rating was an 84 or “very good;”
- in 2007 Petitioner’s performance rating improved to an 85, also “very good;”
- in 2008 Petitioner’s performance rating was an 82 - still “very good.”
- In 2009 Petitioner’s performance rating was an 81 - also “very good.”
Clearly, the performance appraisals the petitioner received from R. F. graded the petitioner in an overall positive manner. There were some comments in the evaluations on areas for improvement, but it is hard for this Court to fathom how the petitioner characterized these evaluations as “all negative.” Moreover, it is clear that the yearly reviews that were given to the petitioner were not “carbon copies” from the prior year (in either the literal or figurative sense). That being said, the Court finds that the documentary evidence in this case, much like the testimony of petitioner’s co-workers, rebuts petitioner’s subjective interpretation of her work situation. 
The Court notes that the testimony also clearly revealed that petitioner left work on February 2nd in response to a call from hospice workers who were attending to her mother’s declining health situation. Petitioner testified it was on or about that date that she was informed by hospice care that her mother “didn’t have much time.” Petitioner’s mother passed away the following week. Notwithstanding that situation, Petitioner was adamant as to why she did not return to work. In her words, “It wasn’t because of my mom. It was I had enough of her [R.F.’s] mouth.” As per the petitioner, the tipping point was the content of a phone conversation that took place shortly after February 2nd. Petitioner’s description of that phone call was “that Thursday…I called R.F. and asked her if there was anything she needed, a file she couldn’t find, something on my desk that was in need…” and “She started screaming at me over the phone. There was a problem with somebody’s insurance policy. I was so shocked. I said nothing and she said, whatever, do whatever, and she hung up.”
Ms. F. acknowledged that a phone conversation took place but her description of that phone call was quite different. Ms. F. testified;
“No. That [call] was after her mother had passed away…A few days into the following week it came to our attention that a flood insurance policy had not been paid which through FEMA and our regulations it is a big issue, a huge issue, if somebody does not have flood coverage and if the bank has let it lapse through our failure to pay the premium, so we were definitely scrambling to find out what had happened there. She called in to let me know that she would not be there the rest of the week, I said can you let me know what’s going on with this account, we don’t know why it wasn’t paid, did you get the bill, was the person changing insurance companies. And she was like, ‘ I don’t know, if there is anything on it would be on my desk.’ I said ‘OK, I will look there’….I did not hang up on her. She said she could not come back, and I said, ‘I understand you do what you have to do, in terms of your family, do what you have to do where you need to be,’ and all during both her parents illnesses and other things, I had said to her ‘I know you are not any good to me when you are here and your thoughts are elsewhere, or you think you need to be elsewhere, so do what you have to do.’”
Much like petitioner’s testimony on the other points noted above, the petitioner seemed to overstate the content of the conversation to reflect that she was being verbally attacked by Ms. F.. It was this Court’s observation that Ms. F. testified candidly and credibly about her interactions with the petitioner both in the office and during that phone call. It is this Court’s finding that Ms. F.’s version of the phone call is more believable. That finding is based on the numerous inconsistencies between petitioner’s testimony and the testimony of the witnesses noted above. In making that finding the Court also finds that Ms. F.’s assessment as to her interaction with the petitioner was fairly summed up by Ms. F. as follows, “I had to be her supervisor. I had to make sure our workload got accomplished and that the department flew. It was my responsibility. At the end of the day, I was the one being held to that. So because I was not her friend, there is nothing I can do about that. I was her supervisor.”
The primary legal issue to be decided in this motion is whether petitioner has, in fact, met her burden to prove a compensable psychiatric claim. In any workers’ compensation claim, the petitioner bears the burden of proof in establishing his or her disability. Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 283 (App. Div. 1994) certif. denied, 140 N.J. 277 (1995) (citing Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984))
Generally, mental disabilities are compensable when they arise out of objectively verified, job-related stress and anxiety. Williams v. Western Electric Co. 178 N.J.Super 571 (App. Div.) certif. denied 87 N.J. 380 (1981). In Williams, the Court held that an employee’s subjective reaction [to the stressor] is not to be disregarded but it cannot be the sole ingredient of the formula for compensability.
Roughly eleven years after Williams, the standard for proving psychiatric compensability in a worker’s compensation claim was revisited in Goyden v. State Judiciary, 256 N.J. Super. 438, (App.Div.) aff’d 128 N.J. 54 (1992). The Goyden decision modified the Williams analysis somewhat. The Goyden decision set forth five factors for our Courts to consider when considering the viability of occupational psychiatric claims. Those factors are : (1) whether the working conditions are objectively stressful; (2) whether the believable evidence supports a finding that the worker reacted to them as stressful; (3) whether the objectively stressful working conditions are peculiar to the particular work place; (4) whether there is objective evidence supporting a medical opinion of the resulting psychiatric disability, in addition to the bare statement of the patient; and (5) whether the occupational exposure had a material impact on the worker's condition. [256 N.J. Super. at 445-446, 458].
In this case, the Court finds that the petitioner has not carried her burden to show that her psychiatric claim is based upon “objectively verified stressful work conditions.” Based on that failure alone, petitioner’s claim is not compensable.
The Court’s finding is based upon various factors. First, as discussed above, there was no corroboration of petitioner’s claims of repeated screaming in the workplace. Second, petitioner’s claims of being overworked were not corroborated by her own co-workers. Mr. F. testified credibly that he did not “think the expectations for J.K. were unreasonable.” He also observed, “They weren’t expecting her to do things she really wasn’t capable of doing.” Similarly, S. E. credibly testified that “…J.K. had a lot of flexibility there. She takes cell phone calls. She meets with her parents in the lobby when they banked there. You know, she had a nice job that way.” Based on the testimony of these witnesses, the Court finds that the petitioner’s workflow and workload were not “objectively stressful.”
Additionally, the Court finds that the petitioner has failed to make a persuasive showing that the constructive criticism found in her evaluations was compensable, let alone unjustified or unmerited. As noted above, the Court found that the evaluations at issue were not “always negative” as was claimed by the petitioner. Merited criticism is not “peculiar” to a particular trade, occupation, process, or place of employment. Merited criticism is common to all occupations and places of employment. While there is no doubt that the petitioner did not care for the constructive comments made in her evaluations, viewing the evaluations objectively, the overall tenor of the appraisals could not be fairly characterized as “ always negative.”
The testimony as a whole revealed that there were other factors that were not peculiar to the workplace that contributed to Petitioner’s difficulties with Ms. F. Petitioner’s repeated comments to her co-workers clearly reveal the petitioner harbored animosity over Ms. F.’s advancement. Ms. E., who saw the interactions between petitioner and Ms. F. on a daily basis described the petitioner’s demeanor as “spiteful” and “hostile” about R.F.’s advancement in the bank and “J.K. not having the same advancement.” Ms. R. testified that the petitioner actually spoke to her about this very issue. Testimony that the petitioner repeatedly referred to Ms. F. as a “Princess” or a “Witch” behind her back seems to cement that assessment as being fairly on point. In short, it is apparent to the Court that the petitioner harbored a lot of resentment regarding Ms. F.’s advancement from being petitioner’s trainee to petitioner’s boss.
Based on the foregoing, this Court cannot find that the petitioner has met her burden to show a disability materially caused by objectively stressful working conditions peculiar to her employment. As a result, the Court finds that the petitioner has failed to satisfy her burden of proof under Goyden, supra.
Although failure to prove “objectively stressful work conditions” is dispositive of petitioner’s claim, the Court sees it as necessary to the proper disposition of this case to address one further factor set forth in the Goyden decision. That factor involves an evaluation of whether petitioner provided “medical evidence showing that objectively stressful work conditions were the material cause of her claimed psychiatric disability.”
Separate and apart from the court’s determination that the work conditions in this case were not objectively stressful, the Court specifically finds the psychiatric testimony offered in this case to be unreliable.
Both Dr. Arnold Goldman, who testified on behalf of the petitioner, and Dr. Walden Holl, who testified on behalf of the respondent did testify that they felt the petitioner was suffering from some modest degree of psychiatric disability relative to her employment situation. Notwithstanding that both doctors offered opinions as to the existence of a causal relationship between petitioner’s psychiatric condition(s) and her self-described work environment, this Court, as a fact-finder, must be mindful that “the weight of [an] expert's opinion depends on the facts on which the expert bases his/her opinion. The fact finder must also decide whether the facts relied upon by the expert actually exist. Finally, a fact finder is not bound by the testimony of an expert. A fact finder may give expert testimony whatever weight the factfinder deems is appropriate.” (See Model Civil Jury charge 1.13)
In analyzing the issue of “whether the facts relied upon by the expert actually exist,” the Court notes that both doctors based their opinions on medical causation on the history and chronology of events solely as presented to them by Petitioner. Dr. Goldman, for example, testified “…all this [stress] began when R.F., according to Petitioner, began to treat her in a poorly fashion, ignoring her, screaming at her in front of everyone else, calling her in after work, expecting her to stay late sometimes to get something done, and basically intimidated her.” Dr. Goldman further testified that “She [Petitioner] couldn’t understand why when she tried to be friendly to R.F., all she got was a lot of flak from her, shunning, work dumped on her desk…she was doing the work and not being appreciated for it, apparently because she kept on getting negative reviews from R.F.” As to the basis of Dr. Goldman’s opinion, the Court references this colloquy from cross-examination:
Q. And you were relying on her [Petitioner’s] report for your opinion,
Q. You did not rely on any other opinions, or any other facts, correct?
Similarly, Respondent’s expert, Dr. Holl, testified that the basis of his opinion was also solely derivative of the description of the office as described to him by the Petitioner. Dr. Holl stated, “Her opinion was she was harassed. I took that –at face value.” Dr. Holl testified further, “Well, I made no judgment as to whether or not that occurred. I took her at her word that it occurred. And I have no way of knowing.”
This Court has assessed petitioner’s credibility. In making that assessment the Court finds that the descriptions of the interaction between petitioner and Ms. F., as relayed by the petitioner to the doctors and to the Court, were at best inaccurate and at worst greatly exaggerated. None of the co-workers who testified in this case corroborate the picture of the work environment that petitioner described in Court or to the doctors. None of the co-workers corroborated “screaming.” None of the co-workers described the petitioner being “harassed.” None of the co-workers described petitioner as being outgoing or “friendly” towards Ms. F., and the “always negative reviews” described by Petitioner to the psychiatrists, in actuality, were not “always negative” at all.
In short, the Court finds that other than the “bare statements” of the petitioner there is a lack of any objective evidence supporting the medical opinions of psychiatric disability. See, Goyden. at 445-46 (quoting Saunderlin v. E. I. DuPont Co., 102 N.J. 402, 412 (1986)). As such, the resulting opinions of both doctors on the issue of causation are rejected by the Court as unreliable.
In sum, the testimony and the evidence produced in this case do not provide the Court with credible evidence upon which it can find that that it was “objectively verified work stressors” that “materially caused” or were “to a material degree a contributing factor” in the petitioner’s psychiatric reaction. Williams, supra.; Goyden, supra.
Given the finding that the petitioner has not sustained her burden of proof in proving a compensable mental disability claim, the motion for medical and temporary benefits is denied. This finding with regard to the motion consequently mandates a dismissal of the petitioner’s claim in its entirety in that any claim for permanency benefits fails on the same legal and factual analysis.
Respondent’s counsel to prepare an order denying the motion and for dismissal of the claim petition consistent with the reasons set forth in this opinion
Costs to Respondent:
____________ ½ days of testimony.
GEORGE H. GANGLOFF, JR., J.W.C.
 While the petitioner testified that she felt these appraisals were quite clearly “all negative, never positive,” Mr. M. on the other hand felt, “My observation of her opinion of her job is it is much greater than it really was. She felt that without her being part of the mortgage department that it just wouldn’t work.” Mr. M. did not stop there, he further stated, “[Petitioner] was a malcontent... That she [had] an overinflated view of her work quality and her work ethic.”
 Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978), aff'd, 79 N.J. 547 (1979). See also N.J. Rules of Evidence 703.