CP# 89-32222, 90-15646 & 91-8482 Conteh v. Continental Baking/Interstate
STATE OF NEW JERSEY
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
MIDDLESEX COUNTY DISTRICT
C.P. # 89-032222, 90-015646 & 91-008482
SAFFIATO CONTEH, Petitioner
CONTINENTAL BAKING/INTERSTATE, Respondent
For the Petitioner:
GALEX, TORTORETI & TOMES, Esquires
by: SUSAN CALLAHAN & JACQUELINE V. IVERSON, Esquire
For the Respondent:
BIANCAMANO & DI STEFANO , Esquires
by: ANTHONY R. DI STEFANO , Esquire
MONCHER, LAWRENCE G., J.W.C.,
Ms. Conteh is a 45 year old former bakery worker with several medical problems which she attributes to her employment as a packer at respondent=s former Wonder Bread baked goods factory in East Brunswick, New Jersey from 1978 through 1990. She filed three separate claim petitions making essentially the same allegations of pulmonary, dermatological, urological, and internal disabilities allegedly caused by exposure to substances in the environment of respondent=s bakery. Respondent admitted employment but denied there had been a compensable exposure or disability.
During the pendency of the case, petitioner claimed a psychiatric impairment as a consequence of her injuries and/or as a result of persistent harassment by her fellow employees. She testified certain named coworkers called her names and persistently hurled personal insults at her because she gave off a peculiar body odor. Her body odor may in all likelihood have been due to the heat and other factors peculiar to the environment of this commercial bakery. Her complaint of a foul body odor has continued during the years after the termination of her employment. She also associates the body odor to digestive anomalies. But more will spoken of this latter in this decision.
The stress of constant biting humiliating insults is claimed to have been a material contributing factor to her permanent emotional illness. She named individuals in management and a union shop steward who were aware of the harassment, received her complaints, but did nothing to stop it. She was offered the opportunity to file a formal grievance under the procedure established by the union labor agreement, but failed to complete the complaint form. She said she could not fill out the forms because of pains in her right arm. Yet, she has completed at least one semester or more at Mercer County Community College during the pendency of this trial. It is difficult to imagine anyone getting through college and not be able to write. This is at best a tangential comment but still one which either creates as a credibility issue or is an indication that she could not deal with the harassment. I find it more likely to be the latter.
The expert psychiatrists for each side found significant psychiatric disability but differed on its cause and relationship to the employment. Both parties obtained psychiatric examinations and had ample time to investigate the facts surrounding the psychiatric illness. No surprise or unreasonable burden was visited on respondent by allowing a claim for psychiatric impairment. The claim was interrelated and sprung from the same basic facts as the other occupational disease claims. The pleadings were amended by my order during the trial to conform to the proofs on this issue and the claim for psychiatric impairment will be decided.
The witnesses at trial were petitioner and six forensic physicians each of whom conducted examinations of petitioner, had access to the medical records of treatment and considered the same hypothetical question. Petitioner=s expert witnesses were Rowland D. Goodman, M.D., an internist, Irving Shapiro, M.D., a dermatologist, and Peter M. Crain, M.D., a psychiatrist. Respondent=s expert witnesses were Sanford Lewis, M.D., an internist, and Roger Brodkin, a dermatologist, and David Flicker, M.D., a psychiatrist. All of these physicians were board certified in their respective specialty and had lengthy experience and was clearly competent and qualified by training and experience. The documentary evidence included CV=s of three of the experts, the record of petitioner=s hospitalization at Sam Houston Memorial Hospital, Texas and a consultation report by Iris Usadin, M.D. of Robert Wood Johnson Medical School.
Petitioner=s testimony was the only evidence which described the conditions of the employment or co-worker conduct. Respondent presented no proofs which contradicted her testimony on the work environment or the conduct of co-employees and management towards her. There was sharp disagreement among the forensic witnesses on the presence of any work related permanent pulmonary or dermatological disability. The parties were represented by competent counsel who argued for every conceivable factual inference from each bit of evidence. Both counsel submitted well reasoned and impressive written summations which requires the following review of pertinent legal principles.
The burden of proof here, as in all Workers Compensation contested cases, rests on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of the elements of the claim. Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 410-12 (App. Div. 1992), certif. den. 130 N.J. 6 (1992); Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidential standard applies to the elements of the case on which respondent bears the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).
For petitioner to prevail [s]he must establish a link between ... [the] disease and occupational conditions. Petitioner has the burden to prove this causal relation by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. >The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.= [Citations omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996).
Where respondent urges an alternative factual proposition or legal conclusion which will exonerate or mitigate its liability, it, and not the petitioner, bears the burden of proof and persuasion on that issue. Cf. Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995).
The Workers= Compensation Act Ais remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses.@ Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955). Judges are directed to Aliberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries . . .@ Ibid. The Supreme Court has reiterated recently that the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished. Fiore, supra., 140 N.J. at 465. On the other hand, this directive to construe the act liberally does not extend to ignoring the burden of proof. It does not release petitioner from the burden to persuade the trier of fact that his factual contentions are valid.
The entirety of this occupational disease claim including the pulmonary, dermatological, and psychiatric stress claims must satisfy statutory definition
a.. [T]he phrase "compensable occupational disease" shall include all diseases arising out 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.
b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.
This statute is a part of a legislative plan to contain compensation costs as a balance for increased disability benefits for serious injuries. Fiore, 140 N.J. at 468. Previously it was only necessary to show the occupation was a contributing cause. Giambattista v. Thomas A. Edison, Inc., supra. 32 N.J. Super. 103 (App. Div. 1954). Now it must be shown the disease or the acceleration of the disease was Adue in a material degree@ to the exposure. Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 503-08 (App. Div. 1993), certif. den. 135 N.J. 304 (1994) and Kozinsky v. Edison Products Co., 222 N.J. Super. 530 (App. Div. 1988). Furthermore, the employee must also show the exposure or condition was characteristic of or peculiar to the occupation, process or place of employment and the material cause of the occupational disease. Fiore v. Consolidated Freightways, supra. 140 N.J. at 468-70.
Resolution of the issue of whether the employment risk was the material cause of the disease depends on whether the proofs establish the compensable disease would not have occurred to the extent it did in the absence of the described employment exposure. See Fiore, supra., at 473-77. If the condition would have occurred to the same extent without the exposure, it is not compensable. If the occupational exposure was a real causative factor in bringing about the disease or its extent, the injury may be compensable. Fiore, at 477. If the injuries merely lit up a condition and added no new pathology, there would be no liability.
In Prettyman v. State 288 N.J. Super. 580 (App. Div. 1997), an accident case, the court had occasions to again discuss the how this tribunal must consider employment risks which have an impact on the employee. These principles have equal application in deciding occupational exposure claims. In both accidental injury claims under N.J.S.A. 34:15-7 and occupational disease claims under N.J.S.A. 34:15-31 (a) the risk factor which is claimed to be the cause of the injury must be shown to be employment related rather than something experienced by the general population. The court stated:
We have recognized that there are"three categories of risk used in determining the connection between employment and injury." Id. at 126 (citing Howard v. Harwood's Restaurant Co., 25 N.J. 72, 83 (1957). These categories are used to decide whether an injury arose out the employment as required by N.J.S.A. 34:15-7. The first category described a "but for test," questions whether it is more likely than not that the injury would have occurred in the workplace rather than somewhere else. Id. at 126. The second category of risks are classified as"neutral risks" and are those risks that occur due to"uncontrollable circumstances which do not originate in the employment environment but which happen to befall the employee during the course of his employment." Id. at 127 (quoting Howard, supra, 25 N.J. at 84). The third category of risks are those which"do not bear a sufficient causative relationship to the employment" and are considered" personal to the claimant" or "idiopathic." Ibid. (citations omitted).
In Dietrich v. Toms River Bd. of Education, 294 N.J. Super. 252 (App. Div. 1996) the court held that the compensation law did not allow compensability when an underlying idiopathic cardiomyopathy condition became evident during stressful employment occurrences unless there was a material causal nexus between the employment happenings and the worsening of the underlying heart disease. The happening of acute symptoms while Dietrich was at work was merely an idiopathic occurrence. There was no credible medical evidence that the work conditions caused the heart condition. In Dietrich, the court observed there was a lack of
Asuitable medical evidence that the job stress substantially contributed to the condition or disease that developed, and that without the exposure, it would not have developed to the extent that it caused the disability manifested.@
Psychiatric illness which is due in a material degree to physical injury or stresses which are peculiar or characteristic of the employment is compensable. Prettyman vs. State, supra.; Margaritondo vs. Stauffer Chemical Co., 217 N.J. Super. 560 (App. Div. 1985), aff=d on remand 217 N.J. Super. 565 (App. Div. 1986). Yet an individual=s personal subjective reaction to ordinary stresses of life is not compensable. Cf. Goyden v. State, 256 N.J. Super. 438 (App. Div. 1991), aff'd, 128 N.J. 54 (1992); Dietrich vs. Toms River Bd. of Education, 294 N.J. Super. 252 (App. Div. 1996). A person's subjective unreasonable reaction to employment conditions is not compensable. See Goyden, supra. (where the Court reviewed the pertinent cases and instructed that the fear of an individual that his or her job will be lost because of reorganization, economic considerations, or irrational fear of supervisors is not compensable).
The lesson of Goyden, Prettyman, & Dietrich is that the employment stress must be real and not a figment of the imagination or unreasonable mental reaction of the ill worker. At the same time it must be kept in mind that a frequent feature of mental illness is an unreasonable reaction or lack of rational connection. If the causal nexus was merely an unreasonable personal reaction to co-employee infrequent teasing, the circumstances would not give rise to a compensable injury.
Here the insults are of such duration, persistence and of such a nature that one could reasonably say that in a civil society one should not have to put up with such continual insults which deprecate ones sense of self worth. That conduct might well cause a compensable injury. It is really no different than any other hostile work environment which has been recognized by the courts as actionable conduct which causes permanent harm.
Further, there must also be a direct and material cause and effect relation between the employment stress and the mental illness. I have taken care to carefully review the circumstances to be sure that the employment circumstances are not merely the convenient alternative focus for a multitude of other personal non-work issues that may be troubling petitioner. She certainly has her own share of personal concerns not related to her work. She has been deeply troubled by the death and troubles of family members in her native land of Sierra Leone in West Africa.
Ms. Conteh=s mental illness is quite real. Her testimony describing persistent humiliating, harassing and degrading comments by coworkers was credible and not refuted. Respondent produced no one to refute it. The coworkers= conduct was inappropriate and wrong. She was an innocent target, a victim no different than one who is assaulted physically. She did nothing to encourage the conduct. A good part of the time she worked in the vicinity of hot ovens which obviously could be the cause of her perspiring. Such odors are not uncommon effects of spending time in such an environment. There is no suggestion in this record that she had poor personal hygiene. She also worked in and about refrigerators and so it would appear that her odors, if they existed at all, might not be a consequence of the work environment. She complained of experiencing persistent perspiration, even after she left the employment environment. She complained of severe digestive problems. A frequent nick name given by some co-workers was Achicken soup.@ This apparently was the mildest of the insults telling her she had an offensive odor. I draw the inference that her odor problem, if it did in fact exist, which in her mind continues to this day, might well be a consequence of personal problems unrelated to work.
Nevertheless, if her body odor made her different than others, so what? That is not an excuse for other employees to hurl constant insults during the working day. This was not a figment of her imagination. The harassment is no different than physical, racial or sexual harassment. Words can hurt, they can have the capacity to inflict real harm, especially when done with frequency and steadily diminish ones own sense of self worth. Here she is constantly told she is socially repulsive. She was seeking medical attention for this problem and in a constant search over the years of her working there and beyond for the cause of the odor. What happened here is not an occasional insult or suggestion to improve ones bathing habits. The coworkers threw persistent insults at her which demeaned her. They sought her out to mock her and diminish her own sense of self worth. She became afraid to eat her lunch with her co workers. She sought and obtained an isolated assignment where she would work away from everyone else. Still, they sought her out to insult and tease.
Her reaction to the persistent humiliation can not be said to be irrational. She just could not take it anymore and after a time it had its effect. No doubt she was susceptible to teasing. After all, common experience teaches that the bullies pick on weaker persons whom they perceive will react to the teasing. Management was aware of the offensive conduct and the negative impact on Ms Conteh and did nothing to stop it. The consequences of similar uninvited conduct can be compensable. Cf. Prettyman, supra.; Saunderlin v. E.I. Dupont Co., 102 N.J. 402 (1986) & Goyden, supra.
For all of the foregoing reasons, I conclude that conditions peculiar to her employment were significant stressors and material causes of her admitted psychiatric illness. The question of the extent of her admitted psychiatric impairment and its work relation will be explored further.
Similarly dermatological damage and pulmonary impairment can be a consequence of exposure to exposure to heavy quantities of flour, enzymes, glue, and other ingredients in the atmosphere and heat from the bakery ovens. She described her work with the ingredients used in the baking and packaging of bread and cake as well as the high heat surrounding the ovens. Her description of the environment was not challenged. She did perspire when working around the ovens. She was exposed to extensive amounts of flour and powdered sugar in the air. It got on her person and was breathed in. This persisted for several years. She did describe conditions in this bakery which met the criteria of conditions peculiar to her employment location to establish exposure for a compensable occupational disease under N.J.S.A. 34:15-31(a). There still remains the issues of whether there is resultant compensable disability and its extent.
The Worker's Compensation law states
"Disability permanent in quality and partial in character" [is] ... permanent impairment caused by a compensable accident ... based on demonstrable objective medical evidence, which restricts the function of the body or 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. ... Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant disfigurement ... shall not constitute permanent disability within the meaning of this definition. N.J.S.A. 34:15-36.
The 1979 Worker's Compensation Reform Act added these definitions as part of a legislative plan to install a pattern of cost containment for permanent disability awards as a balance for significantly increased disability benefits for seriously injured workers. L. 1979 c. 283; Perez v. Pantasote, Inc., 95 N.J. supra. 110-118 ; Saunderlin, 102 N.J. at 406-10.
In Perez v. Pantasote, Inc., supra., the Court held that permanent partial disability must meet a legislatively mandated two step test. There "must" first be a
satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs ... Once a permanent disability is proven by such objective evidence, the next issue is whether the injury is minor or is serious enough to merit compensation. ...has [there] ... been an appreciable impairment of an employee's ability to work. [Or is it] serious enough to interfere substantially with other aspects of the employee's life.
Perez, 95 N.J. at 116-118.
In permanent partial cases such as this one, factors personal to petitioner are pertinent such as age, work experience, education, language ability and the impact on the worker=s personal ability to now perform on the job as a consequence of the loss of physical function. See Perez v. Capital Ornamental Iron Works, 278 N.J. Super. 275 (App. Div. 1994), certif. den. 140 N.J. 277.
Ms. Conteh has satisfied the exposure requirements of the occupational disease statute in that she was exposed to conditions which were peculiar to her employment. The question is whether the exposures were the material cause of an occupational disease as required by N.J.S.A. 34:15-31(a) and are the material cause of permanent impairment as defined in N.J.S.A. 34:15-36. Fiore, supra.. Based on the foregoing, the following additional findings are made.
Ms. Conteh is now 45 years of age. She was born in Sierra Leone and received her education there. At 19 years of age, she immigrated to the United States. She held a series of different short term jobs mostly of a maintenance or personal care nature. In 1978 she started work for respondent as unskilled labor in its bread and cake production facility. Before starting at respondent she did attend a community college but did not receive a degree. While working for respondent, petitioner registered for a technical school program dealing with computers but apparently did not attend. At the time of her testimony in 1998, petitioner was again attending a community college and apparently was passing her course work. Hopefully she will some day be able to return to work.
Her work assignment for respondent for her first year was in a refrigerator room on the production line for packaged cake products. She complained of the presence of fumes from the glue used on the boxes. Later her assignment was changed and she spent at least a half day in a non refrigerated area in close proximity to fryers and ovens. She complained this environment was humid and dusty from flour, powdered sugar and other elements used in the bakery. She testified to the presence of mold and residuals of insecticide in her work environment. There was no ventilation. She developed a cough, shortness of breath, nose bleeds, a loss of stamina, digestive problems, persistent sweats, headaches, and skin irritation. She complained of blistering and changes in the color of the skin on her back. By 1988 she was moved for at least 4 hours a day to work station away from other workers. The same environmental complaints were applicable to all her assignments.
During the late 1980's, Ms. Conteh began to experience physical discomfort. She consulted a series of physicians including her personal physicians, Dr. Lind and then Dr. Scharf of East Brunswick. She testified to being treated among other things with creams for her skin as well as Elavil for depression. She was tested by a Dr. Barton, an allergist who prescribed a nasal spray for allergic rhinitis. The record suggests that he diagnosed multiple allergies to grass, trees, mold spores, weed pollens. She received little relief.
In April 1989 Ms. Conteh consulted an environmental physician at an environmental medical group operated by Robert Wood Johnson Medical School. The physician, Dr. Iris Udasin noted a history of reaction to lubricating oils which made petitioner sneeze but no other reactions directly attributable by petitioner to any substances. She complained of excess sweating. The physician noted a complaint of a personal odor which petitioner claimed was the focus of harassment by coworkers. The physician noted a skin rash under the arms and between the legs. An otherwise not identified abnormal urinalysis was noted but apparently had no connection with this claim. While the doctor made no specific findings, she was sufficiently concerned that she wrote to the respondent requesting information on the substances to which Ms. Conteh was exposed. Respondent did not respond and petitioner did not follow up with Dr. Usadin or with her employer on the request for ARight to Know@ information on the work place environment.
During June 1990, the approximate time she ceased work, Ms. Conteh consulted Dr. Stuart Berger, a physician in New York City who prescribed vitamins for a chronic fatigue syndrome.. While under the care of Dr. Berger she began to experience complaints in her right wrist and in all of her joints. She said the therapy approach of Dr. Berger was to build up her immune system to counter her many problems. Eventually her major medical insurer, Prudential refused to pay for Dr. Berger=s treatment, she stopped seeing him in 1992. For approximately one year, petitioner saw Dr. Randolph Meltzer, a chiropractor in New York City, for complaints referable to her joints. The chiropractic massages and adjustments Ahelped a lot.@
Her next step in 1993 was to seek therapy at the Sam Houston Memorial Hospital, Spring Branch Medical Center in Houston Texas. She chose this facility based on testimonials she heard on a religious broadcast. She says she was afraid to go out among people because of her body odor and sweating. She was resident there from March 22, 1993 to April 18, 1993. She received individual and group therapy and medication consisting of Elavil and Triavil. She testified that this treatment helped her to go out in public and mix with people though she testified that she continues to keep to herself most of the time. The hospital record states the patient has:
multiple losses and traumas regarding the patient=s family of origin. Patient=s recent relationships which tend toward patient taking a subservient victim role with others. She came in complaining of body odor, infections, depression, shortness of breath, headache, pains, et al. Her Epstein Barr titers were normal. It was felt she would benefit from continued spiritual teaching and guidance through her home church.
The final diagnosis following this 3 week psychiatric inpatient care was that petitioner suffered from a major depressive disorder with psychosis. Shortly after discharge from this hospital, she sought help at Oral Roberts Hospital in Tulsa, Oklahoma for suspected breast cancer. The testing revealed no such pathology.
She then came under the care of a Dr. Braverman of Princeton, New Jersey who she saw for depression. Her treatment consisted of vitamins and medication including Acarbamazepine@ which according to the PDR is an anti-convulsive medication. The record is not clear of exactly when this treatment came to an end but it terminated well before her testimony because she could no longer afford it.
Petitioner=s present complaints were essentially the same since she left respondent=s employ on June 9, 1990. She has not worked. She received ordinary disability benefits from a company funded plan until August 5, 1990. Latter she applied for and continues to receive total disability from the Social Security Administration under the SSI program. It appears that she lacked sufficient quarters of coverage to qualify for SSD program. While petitioner may well be totally disabled, this record does not present a sufficient basis to connect this claimed total inability to work to her employment or to any medical diagnosis. She does have a significant psychiatric condition which I will discuss below and had a rather minor dermatological problem. There just is no demonstrable objective medical proofs of any other medical condition. She has a plethora of complaints in every sphere from a ringing in her ears, to fluid in her ears, to headaches, joint pains, shortness of breath, excessive sweating, rashes, itching, changes in her skin color, chest pains, heart palpitations, digestive tract problems, plus continuing depression evidenced by many symptoms including a claimed fear of having social contact with people. The best way to evaluate petitioner=s many claims is to review the testimony of her experts and measure this against the respondent=s experts.
Petitioner=s internal medical disability relied on the testimony of Rowland Goodman. The doctor=s credibility was severely wounded by the careful cross-examination by respondent=s counsel. The doctor conceded he had no knowledge of the specifics of the exposure he described in his reports of petitioner=s medical condition. He apparently was willing to attribute a medical condition to exposure to Achemicals@ with no knowledge of the identity of the chemicals or their character. He reported normal pulmonary function tests at the time of his 1989 examination, but opined a permanent partial disability of 25% for chronic obstructive pulmonary disease. He apparently relied on chest X/ray finding of increased bronchial vascular markings. When he examined petitioner 5 years later, 4 years after she terminated her employment, the chest X/ray findings were unchanged and this time he reported a reduced forced vital capacity and opined that disability had increased to 35 %.
I found Dr. Sanford Lewis opinion of no permanent partial disability to be more reliable. I looked at the chest X/rays as he described his interpretation. I agree there are no abnormalities or Aincreased vascular markings.@ I note that at each of Dr. Lewis=s examinations the pulmonary function tests were within normal limits. If an abnormality in pulmonary function testing first detected by Dr. Goodman 5 years after the employment exposure was accurate, it is unlikely it would be related to the employment. If there was any irritative pulmonary damage, one would expect it to be more apparent and ascertainable during or shortly after the exposure ended. A change showing up 5 years latter is most likely due to other causes. Here I find there is no internal medical disability.
In the dermatological sphere, Dr. Shapiro opinion was vague and based on generalities and subjective complaints. He first examined petitioner 6 years after she last worked for respondent. His physical examination was remarkable for its lack of specific findings. He did not locate the alleged changes in pigmentation on petitioner=s back. He did indicate whether these items would have been covered by clothing or exposed. Essentially he opined that because petitioner perspired and claimed to have an odor which he could not detect. His finding of Achronic hyperhidrosis@ sweating could have been due to diet such as use of garlic or the climatic conditions at the time of year of his examination. Dr. Shapiro=s testimony was not persuasive and can be given no probative weight.
Dr. Brodkin whose CV showed an impressive catalogue of publications concerning dermatological diseases and treatment examined petitioner twice for the respondent. Most importantly he examined her in 1992 and noted no inflammation or discoloration of her skin or any dermatological disease. If there were any irritation or rashes during her employment, I agree, the type conditions reported on in the treating records would have cleared or healed with no permanent change. I find there to be nothing unusual or evidential of disability if a woman working in a warm bakery had rashes under her arms or between her legs. There is no compensable dermatological disability.
Petitioner=s claim for occupational orthopedic impairment due to repetitive motion at work was not prosecuted. No credible evidence of physical activity which would satisfy the requirements of N.J.S.A. 34:15-31(a) was presented. Despite her complaints of generalized physical pain and joint pain, there was no credible evidence of any impairment in the orthopedic sphere or of any job related conditions which warranted treatment while at work or within a reasonable time thereafter.
Turning now to the significant problem, her psychiatric impairment. Dr. Crain opined petitioner had a 35% permanent partial disability for a depressive disorder. Dr. Flicker opined a 30% permanent partial disability regardless of cause which he said was due to a somatization disorder. They both observed similar emotional or mental symptoms. The basic difference was the particular psychiatric diagnosis applied by each physician to petitioner=s symptoms. Each justified their respective diagnosis by pointing to facts of petitioner=s conduct and appearance at their examination and through out the last decade. At trial both physicians had access to the Sam Houston Hospital psychiatric record as well as their own examination and a hypothetical question which included a summary of the evidence presented at this trial. Dr. Crain administered the Beck Depression Inventory, a psychological test which revealed the presence of a serious depressive disorder. His examination including his observation of the manner of her answers and his professional observation of her together with her conduct since 1988 revealed a serious depression which has persisted over time. Her depressive state has been treated by a series of physicians for 10 years with medication.
Her depression appears to have started well before petitioner suffered the recent deaths in her immediate family back in Sierra Leone. For that reason I accept Dr. Crain=s discounting of that factor. While Dr. Flicker declined to diagnose a depressive disorder, he did concede that the somatization disorder did have elements of depression. I conclude that she does have a major depressive disorder. I note the long standing diagnosis of depression made by many physicians over time, inferred from their prescription of Elavil and other depressive medication since 1988. Her conduct in turning to non traditional medical providers while bizarre to a person with good mental health is a manifestation of this illness. I reject Dr. Flicker=s explanation that this is the cause of her mental illness rather than a manifestation of her depression and search for a cure. Dr. Flicker does concede that depression is a feature of the somatization disorder, but he contends that it is not the dominant element of her persona. I believe Dr. Flicker has attempted to pigeon-hole petitioner=s symptoms and life based on her age and sex into a convenient cubby hole of the DSM IV. He does not afford sufficient weight or consideration to the longstanding psychiatric treatment and psychotropic medication for more than a decade. He reached his conclusion in his reports and declined to diagnosis a depressive disorder without access to the record of the 3 week psychiatric hospitalization. Even when presented with the record during the trial, he would not modify his conclusion. I find Dr. Crain=s analysis to be more reliable and credible. I find his observations during his examination of this woman and findings to be consistent with the dictates of the Court in Saunderlin, supra.
Ms. Conteh was healthy before she started working for respondent. Petitioner is a fragile person who could have been pushed into depression by any significant stress whether work related or not. But the only identifiable stressor was the continuing harassment at work. She could not cope with it. No one should have to. Once the depression started as a result of the harassment, she became more susceptible and unable to deal with latter stressful events in her life such as the death of her brothers. There was no credible evidence that this personal family tragedy remains a factor in her continuing depression.
Here Ms. Conteh was exposed as recounted above to intense persistent harassment by coworkers. In a time sequence, this stress initiated her fall into a depressive state. This is when her medication started. I infer, she was taunted so much by her co-workers that she began to believe that she smelled. She holds to that belief to this day even though no one else has detected the presence of the odor which she says now is less frequent.
Fortunately she has apparently made some progress in recovering from the deep depression which afflicted her in the period immediately following her employment. She is now taking and passing some college courses. She now goes out of her room to attend college and for other personal needs. When she appeared here she was pleasant and responsive to questions but did project a demeanor of sadness. She did express a fixation on the odor and her inability to get close to people. She continues to have sleep problems. She will most probably need to continue life long maintenance on Elavil or other medications for her major depression.
For all of the foregoing reasons I find her psychiatric disability is 35% as opined by Dr. Crain. The harassment continued until she left work in 1990. This is when she began to loose time from work. For that reason, permanent disability can be said to be ascertainable in 1990 and the compensation disability rate schedules for 1990 are applicable. Petitioner is awarded 210 weeks of permanent partial disability at $149 per week, a total of $33,600.
In addition respondent, upon request, shall provide for psychiatric treatment and medication necessary for her compensable major depressive disorder.
The following allowances are made-
Rowland Goodman, M.D. for his examinations, 3 report, and testimony $500 to be reimbursed to petitioner=s counsel, payable one-half by each party.
Irving Shapiro, M.D. for his examination, report and testimony $450 payable one half by each party.
Peter Crain, M.D. for his examinations, report, and testimony $450, payable one-half by each party.
Petitioner=s attorney shall be reimbursed for the cost of medical records $128 by petitioner..
Petitioner=s attorney is allowed a counsel fee of $6,600, payable $4,000 by respondent and $2,600 by petitioner.
The cost of trial transcripts $1066.25 ordered by petitioner=s counsel shall be deducted from petitioner=s award and paid to William C. O=Brien Associates, Inc.
A stenographic fee of $1,050 shall be payable by respondent to William C. O=Brien Associates, Inc.
Dated: July 29, 1999
Lawrence G. Moncher, J.W.C.