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Claim Petition No. 2007-12153

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BEFORE:
HONORABLE SUE PAI YANG
Judge of Compensation

Appearances:

THE BLANCO LAW FIRM, LLC
BY:   PABLO N. BLANCO, ESQ.
105 Grove Street,  Suite 11
Montclair, New Jersey 07042
Attorney for Petitioner

PAULA T. DOW, ATTORNEY GENERAL OF NEW JERSEY
BY:  KATHLEEN J. O’BRIEN, DEPUTY ATTORNEY GENERAL
Department of Law and Public Safety
Division of Law, P.O.  Box 620
Trenton, New Jersey 08625-0620
Attorney for Respondent

ISSUES

J.T., a former security officer at the University of Medicine and Dentistry of New Jersey (UMDNJ), filed an amended Claim Petition, No. 2007-12153, for “occupational exposure to stressful work situations and harassment from supervisor.”  As a result, she alleges permanent psychiatric disability.   The respondent denied compensability.  The main issue before the court is the causal relationship of any permanent disability.   The only stipulations made were that petitioner was employed by respondent, and was earning a wage of $624.00 per week, which would give rise to a temporary rate of $436.80 per week, and a permanent rate beginning at $190.00.  Respondent left the petitioner to her proofs on all other issues, such as any medical or temporary disability benefits due.

The post trial letter brief by petitioner’s attorney stated that petitioner received State Temporary Disability Benefits from 4/19/07 to 10/22/07 in the amount of $429.00 per week for a total of $10,720.00.

This trial consisted of testimony by petitioner and her two supervisors, Officer P.F. and Officer G.F.   By consent of both parties, their evaluating doctors’ reports were entered into evidence in lieu of testimony.  I reviewed a four and one-half page report by Dr. Cheryl Wong, M.D., neuropsychiatrist for petitioner and a nine-page report by Dr. Michael Laikin, M.D., neuropsychiatrist for respondent. 

Post-trial briefs were submitted by both parties.  Petitioner’s attorney submitted a 10-page letter brief with numerous legal citations setting forth his argument that petitioner suffered a compensable psychiatric disability.  However, Petitioner failed to prove the two most important elements of an occupational psychiatric disability; namely, that the working condition was objectively stressful and that it was peculiar to the particular work place.   Respondent’s four-page letter brief argued that merited criticism is not compensable and furthermore, petitioner failed to prove permanent disability.  I find for respondent for the above and several  other reasons as follows. 

ANALYSIS OF EVIDENCE

J.T. was employed by the University of Medicine and Dentistry of New Jersey (UMDNJ) for five and one-half years beginning in October 2002.  She testified that she first left UMDNJ in April of 2005 to attend the Newark Police Academy.   Dr. Laikin’s report indicated that petitioner said she developed migraines in the academy and dropped out.  Later it was discovered to be due to a pinched nerve in her shoulder.  Two weeks after leaving UMDNJ, she returned to work for UMDNJ in May 2005.  Her last day of employment with UMDNJ was April 17, 2007.

At the time of her testimony on June 3, 2010, petitioner stated for the record that she is 32 years old,  5’ 2” tall and weighed 183 pounds.  Petitioner testified that her duties  as a security officer was to man her post, check for IDs, sign people in who are visiting or going to the clinical areas and  check for suspicious individuals in and around the property. 

Petitioner testified that her problems began after she returned from the Newark Police Academy in May of 2005 and ended two years later when she left her job.  She testified that Sgt. G.F. told her she would not have gotten her job back had their old director not left.  She testified that she was making almost $15.00 per hour when she left to attend the Academy.  When she returned, she accepted a reduced salary of $14.00 per hour.    Upon return to UMDNJ, petitioner was assigned as a rover wherein she relieved other officers during their breaks and checked for any suspicious activities.  Her regular supervisor was Sgt. P.F. and she testified she had no problem with him.   He also testified that she was a good employee.   It was Sgt. G.F., who occasionally supervised her, she felt was harassing her.  

The possible four harassment incidents petitioner alleged by Sgt. G.F. are as follows: (1). that Sgt. G.F. allowed Officer R to have longer breaks than the other officers.  This she felt was unfair because it caused her to be late to cover other officers for their breaks.  When she got no relief from her supervisor, she complained to their director.    However, Sgt. G.F. testified that there were medical reasons for his decision.   (2.).   Petitioner also complained of an incident when she was assigned to the ambulance emergency room.  When Sgt. G.F. saw her sitting there wrapped up in a blanket because she claimed to be cold, he asked her to remove the blanket.  He testified that he then placed her in a station that was warmer.  (3).  In addition, petitioner testified that Sgt. G.F. had confronted her about her using too much sick time.  He testified that it was because her sick leave record showed she was in violation of their policy and further infractions would result in disciplinary actions being taken.   (4).  Finally, she alleged an incident of harassment when Sgt. G.F. questioned her about leaving her post at 1:30 p.m. instead of 2 p.m. when she was scheduled to leave.  Her answer was that she did not take her lunch break and therefore was entitled to leave a half hour early and others were doing the same, but not being questioned.  That apparently was the last straw.  Petitioner sought psychological counseling and soon thereafter,  left her job with respondent. 

Sgt. G.F. however, testified that he never disciplined her.  In fact he testified that other than the incident where he saw the petitioner wrapped in a blanket, he does not recall having taken any other kind of corrective measures with Officer J.T. while he was either her direct supervisor or doing patrol.  He further testified that, “I barely remembered her.”  He and Sgt. P.F. supervised about 30 officers between them. 

Petitioner  sought psychiatric treatment from her employer but was denied.  She then sought treatment on her own from Karen Sciaraffa, Ph.D., licensed psychologist beginning on May 22, 2007.   Dr. Sciaraffa’s notes were never entered into evidence.  According to Dr. Laikin’s report, Dr. Sciaraffa’s notes indicated that petitioner has been out on disability secondary to work stress.  She had been taking Lexapro and Xanax from Dr. Becking, primary care physician for one year.   Dr. Sciaraffa found, “Mental status is generally normal, except her depressed mood.  No substance abuse.  Diagnosis - Major depression, 296.21, Individual psychotherapy is planned.”  Subsequently, petitioner moved to Florida due to her husband’s job transfer.

THE STATEMENT OF LAW

J.T. has the burden to proof compensability of her occupational psychiatric claim by a fair preponderance of the evidence.

Compensable occupational disease is defined in N.J.S.A. 34:15-31.  That statute in relevant part states:

For purpose of this article, the phrase “compensable occupational disease” shall include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment. 

The Supreme Court in Goyden v. State Judiciary, 256 N.J. Super. 438 (App. Div. 1991) aff’d o.b. 128 N.J. 54 (1992) set the standard for awarding permanent disability for psychological illness arising out of stressful work conditions.  The Court affirmed the opinion of the Appellate Division which requires petitioner to prove the existence of objective evidence of job stress that when viewed realistically establishes working conditions sufficiently stressful to contribute to the development of a mental disorder.  It cannot be conditions that only petitioner finds stressful or conditions that were not shown objectively to exist.  Therefore, for J.T. to prevail, she must prove that the working conditions must be stressful, viewed objectively, and the believable evidence must support a finding she reacted to them as stressful.  In addition, the objectively stressful working conditions must be peculiar to the particular work place and there must be objective evidence supporting a medical opinion of the resulting psychiatric disability in addition to the bare statement of the patient.  Furthermore, merited criticism cannot fairly be considered to be a cause and condition characteristic of or peculiar to a particular trade, occupation, process or place of employment.  Merited criticism is common to all occupations and places of employment.

If all of the above elements of objective evidence of stress are found, then proof of permanent disability must be established by petitioner as defined in N.J.S.A. 34:15-36 in order for her to be entitled to a permanency  award.  That statute in relevant part states:

“Disability permanent in quality and partial in character” means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability. (emphasis added).

This statute has been held by our Supreme Court in Perez v. Pantasote 95 N.J. 105 (1984) to require proof of:

1.  Demonstrable objective medical evidence of a functional restriction of the body, its members or organs; PLUS

2.  Either a lessening to a material degree of working ability, or if not, whether there has been a disability in the broader sense of impairment in carrying on the ordinary pursuits of life.

Demonstrable objective medical evidence is a legal term peculiar to the New Jersey Workers’ Compensation Act, and is not a medical term normally used by physicians.  The Supreme Court in Saunderlin v. E. I. DuPont Co., 102 N.J. 612 (1986) concluded that demonstrable objective medical evidence is required for both permanent partial physical as well as permanent partial psychiatric disability claims. 

Demonstrable objective medical evidence for a psychiatric claim requires an independent professional medical judgment of the subjective statement of the patient to meet that test.  Nevertheless, the bear statement of the patient without an independent analysis by such means as the standards used in the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association would be insufficient. 

In interpreting a lessening to a material degree of working ability, once objective medical evidence has been found, Perez v. Capitol Ornamental, 288 N.J. Super. 359 (App. Div. 1996) instructs that in determining the value of the case, the impact of the injury to petitioner’s ability to work must be considered.  Where there has been a severe impact on work, such as the need for a career change or career loss, awards can be expected to be much higher than a comparable medical condition in a person who gets back to work. 

In interpreting impairment in carrying on the ordinary pursuits of life once objective medical evidence has been found, Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994) instructs that subjective statements regarding activities that petitioner has curtailed or given up is sufficient proof.  Also see Akef v. BASF Corp., 305 N.J. Super. 333 (App. Div. 1997).

FINDINGS OF FACT AND APPLICATION OF LAW

I find that petitioner has failed to prove a compensable permanent psychiatric disability.  I find that petitioner was unable to satisfy the threshold requirement of demonstrable objective medical evidence for permanent psychiatric injuries.    

Dr. Wong examined petitioner on July 29, 2009 and acknowledged that petitioner had postpartum depression in 1998 and 1999.  In her report she merely parroted J.T.'s testimony and did not address her underlying personality that would have caused her to react to criticism in such a heightened manner.  Dr. Wong’s conclusion was:

“Major depressive disorder, agitated, rule out bipolar disorder, secondary to a hostile work environment aggravating prior history of postpartum depression causally related to the work exposure as described, with permanent psychiatric impairment estimated at 35% of total.

I reject Dr. Wong’s findings because unlike Dr. Laikin, she failed to provide an independent professional medical analysis of the subjective statements of the patient.  She merely based her opinion on: 1.  History according to the patient.  2. The physical examination.  3. Duties of the patients’ occupation. 4. Review of medical records. 

I further find that while petitioner was treated for depression toward the end of her employment with respondent, she failed to prove that she currently has a permanent psychiatric disability to a material degree that is causally related to her work with respondent.  First, I find Petitioner did not testify to a present lessening to a material degree of working ability or ordinary pursuits of life.  She actually testified that presently she is feeling better and has been off medication for two years.  The transcript reveals the following, when her attorney asked why she stopped taking Lexapro two years ago:

Q:  Why did you stop taking that medication?

A:  Things started feeling better, less anxiety, less depression.

Q:  Did you go off medication altogether in October of 2008?

Yes.

Are you currently taking medication now?

A.  No.

Petitioner further testified that she is currently working at a Medical Center in  Florida doing similar work that she was doing at UMDNJ and had been at that job a year and six months. 

How do you feel emotionally now, in the last several months?

A.  I’m doing better than I was before, you know.  I deal with the stress differently than I did.  I don’t get as angry and take things as personal as I used to. 

Q. Currently what problems are you having in your marriage or in your personal life?

A.  Things have been better.  We’re not having any issues.  We - - when we first moved down to Florida, we were thinking of divorcing.  Since then, it’s changed. We’re working on our marriage more.  It’s better communication.  Our children are doing fine.  So I’m not really having any issues down in Florida.

 Petitioner has therefore not testified to any present lessening to a material degree of her working ability because she is holding a similar job as the one at UMDNJ, nor did she testify to any activities outside of work she has had to curtail as required by Perez v. Pantasote and Perez v. Monmouth Cable Vision in order for the Court to find a permanent psychiatric disability  for petitioner.

Furthermore, I find that correcting the performance of an underling such as ordering her to remove the blanket, warning her of sick leave infractions and ordering her to remain at her station is inherent to employment and therefore, any psychiatric injuries alleged by petitioner could not be regarded as “work-related” or “arising out of employment” or was “peculiar” to J.T.’s work place within the meaning of Workers’ Compensation Act.  Petitioner failed to produce anyone to corroborate her testimony or other documented proofs that her perceived harassment were anything but “merited criticism” within the meaning of Goyden. 

Indeed, it was Mr. G.F.'s duty as a supervisor to make sure the work is done properly by his underlings.  For example, J.T. may not have agreed with the decision that her supervisor allowed Mr. R more time for breaks than normal, but Mr. G.F. did amply justify them due to medical problems personal to Mr. R and apparently their director did not disagree. 

I find that Dr. Laikin did thoroughly document his independent analysis of petitioner’s mental condition in his nine-page report.  He took a thorough history of petitioner’s life including her disturbing childhood when her parents divorced when she was 10 years old.  Thereafter, when petitioner could not get along with her mother, she moved in with her father.  However, after he re-married, she could not get along with her stepmother and was angry her father did not side with her.  Her father committed suicide in December 2007 at which time he  had bipolar disorder and was off his medications.  Dr. Wong likewise recommended ruling out bipolar disorder in petitioner.

Dr. Laikin also performed and documented a thorough neuropsychiatric examination and finally a clinical formulation, reasoning and opinion document before arriving at his conclusion.

I adopt Dr. Laikin’s findings that petitioner is not presently suffering permanent psychiatric disability.  He stated in his report:

It is beyond the scope of this evaluation to determine if J.T. was treated unfairly on the job by Sgt. G.F., as she claims.  It is a he said, she said situation.  Clearly though, J.T. has a life long pattern of defiance and difficulty with authority figures.  I believe the situation with the sergeant pressed several old buttons, particularly not being defended by the sergeant’s superior hit the nerve of her father never standing up for her versus her step mother.  When we discussed this, it made a lot of sense to J.T.  She never discussed these issues in therapy, which was unfortunate.  She has a hard time with her anger, which is pre-existing, and has not been resolved.  She could use help with this, but it is a pre-existing attitude towards superiors makes her hypersensitive and over reactive to them, which gets her in trouble. 

In terms of causality, since there is no diagnosis or documented mistreatment, there is no causal link between the incident in question and J.T.'s claim.  There is no causal link to the injury in question.  There is no permanency.  There is no need for psychiatric treatment. There are no work restrictions or limitations in the psychiatric sphere in regards to the job claim.

Thus, like Goyden, petitioner has an underlying personality condition, in this case a long pattern of defiance and difficulty with authority figures, which created the stress petitioner felt on her job and would have done so regardless of “peculiar” workplace conditions.  “The existence of such a predisposition precludes compensability not otherwise supported by evidence of “peculiar” conditions which would be stressful to those without such a predisposition.”  Goyden at p. 459, citing Williams. V. Western Electric, 178 N.J. Super.  571, 582 (App. Div. 1981). 

Furthermore, the court in Cairns v. City of East Orange, 167 N.J. Super. 395 (A.D. 1993) found alleged psychiatric disability due to varying personalized responses of employees to bona fide personnel decision that alter an employee’s work status to be non-compensable: 

…” in the absence of evidence of a clear legislative intent to require payment of workers’ compensation benefits for disability caused by a varying personalized responses of employees to bona fide personnel decision that alter an employee’s work status, we are constrained to conclude that the burden of providing compensation to such employees may not be imposed upon an employer.  Even where instances of such harm may be predictable, the stress or trauma caused by such personnel decision is an ordinary part of life and is not so peculiar to the specific employment as to be deemed to arise out of the employment.”

Likewise, I find that even if petitioner does presently have a permanent partial psychiatric disability, it did not arise out of and in the course of her employment for the reasons set forth in Cairns.  Thus, I find that Sgt. G.F.'s decision to allow Officer R longer breaks falls under a bona fide personnel decision as well as the other three incidents petitioner testified to.   Petitioner herself testified to personal predisposition to anger and bossiness as a problem personal to her which she admitted  during her testimony.

I reject Petitioner’s attorney’s argument that Prettyman v. State of New Jersey, 298 N.J. Super. 580 (App. Div. 1997) applies in this case.  Prettyman only applies in traumatic psychiatric cases, not occupational.

Thus, for reasons stated in this decision, I find that J.T. has not sustained her burden to prove a compensable permanent psychiatric disability; therefore, Claim Petition number 2007-12153 is dismissed with prejudice.  An order of judgment has been signed and served on the attorneys by this Court.

FEES AND ALLOWANCES

Respondent shall pay the stenographic service fee of $300 for two days of testimony to William C. O’Brien Associates. 

Date:  November 29, 2010   


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Sue Pai Yang
Judge of Compensation