STATE OF NEW JERSEY

NEW JERSEY DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT

DIVISION OF WORKERS’ COMPENSATION

ATLANTIC COUNTY C.P. 2008-11077

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Uanda Ashworth,

Petitioner,                                                                                          

                                                                                                          DECISION

v.        

Bally’s Casino,

Respondent.

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B E F O R E :               HONORABLE CARMINE J. TAGLIALATELLA

                                    JUDGE OF COMPENSATION

A P P E A R A N C E S :

Adam L. Walcoff, Esquire

Denafo & Walcoff, L.L.C.

1219 S. Main Street

Pleasantville, N.J. 08232

Attorney for the Petitioner

            David A. Sacks, Esquire

            Freeman, Barton, Huber & Sacks

            20 Tanner Street, P.O. Box 10

            Haddonfield, NJ 08033

            Attorney for Respondent

This case was brought before the Court to determine whether or not Ms. Uanda Ashworth (hereinafter “Petitioner”) suffered a compensable accident or occupational exposure as defined under the New Jersey Workers’ Compensation Act (N.J.S.A. 34:15-7 et seq.).  If there was a compensable event it would also be necessary to determine her entitlement to medical and temporary disability benefits and if she sustained any permanent injury as defined by Section 36 of the Act.

The parties have stipulated that from January 12, 2008 through March 6^th of 2008 (or thereabouts) the Petitioner was employed by Bally’s Casino, which consists of Bally’s Casino, Claridge Casino and Bally’s Wild West Casino, (hereinafter “Respondent”) as a Slot Supervisor.  While there was no stipulated agreement regarding Petitioner’s wage and rate, she did testify that she earned $35,000 per year and Respondent has produced no witness to contradict that statement.  There is a State Temporary Disability Lien of $12,635.15 which covered a period from March 6, 2008 through August 31, 2008.  These monies were paid at a rate of $518 per week and the Lien would need to be repaid if there is a finding of compensability.  There have been no outstanding bills presented nor is there any claim for reimbursement owed to an insurance carrier.  It appears from the medical records that the Petitioner did have some out of pocket expenses in the form of co-payments and consideration for reimbursement of same is also dependent upon a finding of compensability.  In addition to the above issues the Court must consider the nature and extent of any permanent injury suffered by the Petitioner.

In support of her argument for compensability the Petitioner produced two witnesses.  The Petitioner testified and then called Dr. Edward H. Tobe as an expert to testify on her behalf.  The Respondent had but one witness, Dr. Walden M. Holl, Jr., their expert.  The trial took place over four (4) days with the final hearing date reserved for submission of medical records, closing arguments and briefing schedule.

The Petitioner testified on December 15, 2009 and related the history of her employment with the Respondent and in the casino industry in general.  While she had originally started in the industry in 1995 working for Claridge Hotel & Casino and worked up to a Shift Manager position, she eventually left to go to Tennessee State University for about a year.  When she returned to the area in 2004 she started to work for Bally’s (as operated by Harrah’s) in the “Total Rewards” department as a supervisor.  Eventually her position was discontinued and she was given a choice as to which department she could transfer.  Petitioner chose the job of Slot Supervisor from among four potential positions.

Petitioner described the following requirements of her job as a Slot Supervisor:  1) satisfy customer needs and meeting goals including dispatching employees to assist customers; 2) pay out jackpots larger than $2,500; 3) deal with irate customers; and 4) to make sure that certain customers (those enrolled in special casino programs) have their needs met within two minutes.  In addition to these direct job duties she was also responsible to supervise her Slot Attendants in the performance of their jobs.  She had to see to it that they: 1) signed up 5 or 6 new customers (into casino programs) per day; 2) knew the games on the floor and be able to explain same to customers; 3) be aware of any casino “events”; 4) pay jackpots under $2,500; 5) make sure an attendant is dispatched to a machine when required; and 6) make sure the machines were clean and supplied.

The Petitioner testified that her primary interaction with her supervised employees was to motivate them at the beginning of each shift and then come when called to handle one of the job duties which specifically belonged to her (e.g. paying jackpots larger than $2,500).  However, the Petitioner stated that her job “really was to deal with irate customers.”  Especially those who were in enrolled in the Seven Star or Diamond Clubs (which indicated “high-roller” players; in fact, she testified that to qualify for the Seven Star Club a person had to “contribute” over a million dollars in a year).  If any customer enrolled in these clubs were to have any problem it was Petitioner’s job to resolve that problem within two minutes.

Petitioner also testified that there were 3 to 4 Slot Attendants and 2 Slot Supervisors per shift and property (Bally’s was one of three with the other two being Claridge and Bally’s Wild West).  She indicated that it was common to have about 8 to 10 Attendants spread over the three properties.  She also said that above her station was the Slot Manager but did not specifically say how many there were or elaborate on their job duties.

It was after the Petitioner returned from her vacation (and the holidays) in January of 2008 that the personnel situation “changed drastically.”  The number of Attendants went from 8 to 10 on a shift to cover all three properties to just 3 or 4.  This meant that Petitioner had to cover shifts where it might be herself and one other slot person for an entire casino’s slot machines (well over a thousand according to her testimony).  Also, the cutbacks meant that there were times when only two supervisors were covering three casinos for many hours of a shift.  Petitioner testified that she felt overwhelmed when trying to do “what you’re expected to do.”  On cross examination the Petitioner did admit that it was common for the casino to make staffing cuts in January as this tended to be a slower time for the industry.  Business, and by extension, staffing, would pick up in the Spring.

Petitioner further testified that she felt as though she were being pulled in several different directions at once and while the situation was “stressful” she did not ever believe that her job was in jeopardy.  This came to a head on or about March 6, 2008.  Petitioner was at the Claridge property paying out a jackpot for a Seven Star customer when she received a call on her radio that there was an irate customer at the Bally’s Wild West property stating that there was an improper payout on a machine.[1] It was at this point that Petitioner “started breaking out in hives” and “couldn’t breathe.”  She reported to the nurses station and was “given a pass” to go the emergency room of a local hospital.

After this incident the Petitioner never returned to work for Respondent.  She treated with her primary care doctor and was eventually referred to a psychiatrist at AtlantiCare Behavioral Health.  The medical records provided to the Court (as P-4 in evidence) indicate that her treatment lasted until October 23, 2008.  During this time she was placed out of work by her family physician at least through the end of August at which time she returned to school on a full-time basis.  The State Temporary Disability benefits were paid from March 6 through August 31, 2008.  Petitioner is currently a full-time student at Atlantic Cape Community College majoring in computer programming with intentions to obtain her Associates degree in 2010 and then matriculate to Stockton College for a Bachelor’s degree.

Petitioner’s only supporting witness was Dr. Edward H. Tobe who testified on January 26, 2010 and is well known to the Court as a petitioner’s evaluating expert for psychiatric and neurologic conditions.  Dr. Tobe’s Curriculum Vitae and his report dated February 28, 2009 were admitted into evidence as P-1 and P-2 respectively.  The doctor, largely reading from his report, testified that based upon his evaluation of the history, his examination of the Petitioner and a review of the medical documents, he opined that the Petitioner suffered a Major Depressive Disorder as a direct result of “work place stressors.”  He explained that Petitioner’s job had peculiar stressors (i.e. going from “one fire to another”, reduction of employees and covering several physical locations) which induced her psychiatric reaction.  The doctor was also asked to address a hypothetical question that was submitted by Petitioner as P-3 (in evidence) which he did and used same to support his conclusions.  On cross examination the doctor stated that the Petitioner’s stressors were merely her “doing her job.”

Dr. Tobe also found that the Petitioner continued to suffer from a permanent psychiatric disability of 35% of the whole person.  He based this on her “lack of energy, drive, motivation[;] indecisiveness [and] racing thoughts[;] straining of her face, [and] ease of sadness of face and voice.”  These observations of the doctor were coupled with his diagnostic testing and review of the medical records in order to allow his to arrive at his estimate of disability.  On cross examination the doctor maintained this opinion even when confronted with Petitioner’s own testimony regarding her current life choices and goals (e.g. continuing education, stable relationship, and a desire to own a home and have a family).

Due to scheduling issues Respondent’s only witness and evaluation doctor, Dr. Walden M. Holl, Jr., testified before Dr. Tobe on January 5, 2010.  Dr. Holl is also well known to the Court as a respondent’s evaluating expert for psychiatric conditions.  Dr. Holl’s Curriculum Vitae and his report dated February 27, 2009 were admitted into evidence as R-1 and R-2 respectively.  Dr. Holl also read from his report as he opined that the Petitioner did not sustain any disability as a result of her work exposure.  The doctor had the opportunity to review a hypothetical question that was prepared by Respondent and offered as R-3 (in evidence).  Dr. Holl testified that he reviewed the question and that it supported his conclusions.

Regarding the exposure at work, Dr. Holl could not say that the events as described by the Petitioner led to a psychiatric reaction (physically manifested by the hives and breathing difficulties).  He did note that the Petitioner was concerned “about telling her twin sister about her [Petitioner] being a lesbian….”  He goes on to state that while this ultimately resolved itself the Petitioner was worried about this and according to the doctor that may have “played a role in the stress, the hives,….”  On cross examination when asked about any possible predisposition the Petitioner might have as a result of her childhood experiences the doctor could not conclude this was so.  However, he did opine that the Petitioner was “a little unusual [as] [s]he came out of this with some resolve, some strength, some resiliency.”

The final hearing date was February 26, 2010 at which time both sides rested and submitted medical records for the Court’s review.  Additionally, both sides waived closing statements and were advised that briefs were to be submitted by March 17, 2010.  Both briefs were received by the Court in a timely fashion and have been reviewed prior to rendering this decision.

The Court appreciated the candor of all of the witnesses.  The Petitioner was very credible, intelligent and related the facts in an informative manner.  Both doctors did a fine job in explaining the bases for their findings and the nature of psychiatric injury and its sequelae.  However, the crux of this matter lies not within the realm of credibility but rather revolves around the burden of proof.  For occupational claims with an emotional disability this requires a specific legal review.

Legal analysis in Workers’ Compensation starts with the Statute.  Under N.J.S.A 34:15-31(a) a compensable occupational disease is defined as those which arise:

                        “…out of and in the course of employment, which are due in material

                        degree to causes and conditions which are or were characteristic of

                        or peculiar to a particular trade, occupation, process or place of

                        employment.”

For psychiatric injuries this is further amplified and defined by the Appellate Division’s decision in the case of Goyden v. State Judiciary, Superior Court of New Jersey, 256 N.J.Super. 438 (App.Div. 1991), aff’d o.b., 128 N.J. 54 (1992).

Mr. Goyden worked in the office of the Clerk of the Superior Court from 1959 until his retirement in 1984, becoming supervisor of records in 1976.  Id. at 440-441.  While there he experienced an increase in the volume of work which led to a backlog in the filing of court documents.  Id. at 441.  Goyden alleged that he suffered from disabling physical and mental injuries as a result of his occupational exposure to a stressful work environment.  Ibid.

While the facts in Goyden were not disputed, it was the application of the appropriate standard for disability in a work stress case that led the Appellate Division to overturn the Judge of Compensation’s original finding of compensability.  The Court held that there needed to be a showing of “objectively verifiable work conditions” which would be considered stressful as opposed to Goyden’s “perception”.  Id. at 456.

Recently, the Appellate Division has revisited this issue in the unreported case of K.S. v. Sunny Days Early Childhood Services, A-2923-07T2 (decided January 20, 2010).  The Court reaffirmed the continuing applicability of the Goyden standard and found that K.S.’s claim for psychiatric disability was not compensable.  K.S. also complained of a stressful work situation that led to a psychiatric manifestation of disability.  Once again the trial court found compensability while the Appellate Court reversed.  While K.S. is not determinative it is instructive; and while the Court may not agree with the standard there is no doubt as to its applicability.[2] 

Petitioner, in her brief to the Court, expresses a list of requirements that must be met in order to find compensability in an occupational psychiatric claim:  1) objectively verifiable working conditions; 2) stress reaction from Petitioner; 3) conditions peculiar to the workplace; and 4) objective evidence supporting the medical diagnosis.  The Court agrees with this analysis.  Furthermore, it must be stated that Petitioner must meet each of these burdens and failure to sustain any equates to failure of the claim overall.

Petitioner in this matter was exposed to work stress as she perceived it and she clearly reacted to same.  She was competently diagnosed with a major depressive disorder as a result of the exposure.  However, she failed to demonstrate to the Court that this stress was “objectively verifiable” and the standard requires such a showing.  Additionally, the Court doubts whether dealing with multiple customers during a time of decreased help constitutes a condition “peculiar” to Petitioner’s work environment.  It would seem that many of us at times have had to deal with this type of situation, even on a chronic basis; and this was certainly the case for Mr. Goyden.

In support of her contention that the stress was “objectively verifiable” the Petitioner could produce no other witness to explain why any person subjected to the peculiar casino environment during the time alleged would have reacted similarly to the Petitioner.  Arguably, Petitioner had other stressors in her life that could have easily contributed to her reaction as well.  She was in the process of divulging a very personal fact about her sexual orientation to a family member and this alone could have been a cause of her diagnosis.  In addition, the Court is mindful of the Petitioner’s difficult childhood and can conceive that some scars would still remain.  The Court also found Petitioner to be very resilient and to have taken the worst offered by life and made something better.  She is worthy of admiration.  Nevertheless, he claim for compensability fails.

The Court Orders that the Claim Petition of Ms. Uanda Ashworth be dismissed with prejudice as she has failed to sustain her burden of proving that her work exposure led to a compensable condition.  Having found that her disability did not arise out of the her employment I further find that the lien as asserted by the Division of Temporary Disability Insurance is not applicable and should not be repaid.  I direct the Respondent to prepare an Order consistent with this Decision within 5 days of receipt of this opinion and to serve same on the Petitioner.  I further direct that a stenographic fee of $600.00 be paid by the Respondent to Jersey Shore Reporting Service for the 4 days of trial testimony.

_______________________________________                              April 7, 2010

HON. CARMINE J. TAGLIALATELLA, JWC