OLGA KARAK,
Petitioner,

 v.

E.I. DUPONT,
Respondent,

BEFORE:         THE HONORABLE RICHARD E. HICKEY, III
                        Administrative Supervisory Judge

APPEARANCES:

                        PUFF & COCKERILL, L.L.C
                        BY:  JEFFREY V. PUFF
                        122 Delaware Avenue
                        P.O. Box 684
                        Woodbury, New Jersey  08096-0684
                        856-845-0011
                        Attorneys for Petitioner

                        CAPEHART & SCATCHARD, P.A.
                        BY:  LORA V. NORTHEN, ESQ.
                        8000 Midlantic Drive, Suite 300
                        Mt. Laurel, New Jersey  08054
                        Attorneys for Respondent
 

This matter was initially tried before the Honorable Matthew Parks, Judge of Compensation, who has since retired.  Judge Parks dismissed the claim petition relying on the case of Cairns v. The City of East Orange 267NJSuper 395 (App. Div 1993).  He found that the stresses leading to the petitioner’s suicide were not peculiar to the employment of the petitioner with the respondent.  The Appellate Division of the Superior Court concurred with the findings of Judge Parks and affirmed his decision dismissing the claim for occupational stress.  The Appellate Division also reversed in part and remanded to the Division of Workers’ Compensation the issue of medical malpractice by co-employees pursuant to the principles set forth in Hocksby v. DiPietro 165 NJ 58 2000) The sole issue remaining on remand is consideration of Olga Karak’s claims as to malpractice by Nurse Sparks, Counselor Gamballe, and Dr. Weiss, co-employees of John Karak.

It is important to know the educational and professional background of these three individuals, in the employ of DuPont, who are the subject of this litigation.  John Gamballe has been employed by DuPont, for approximately thirteen years, is a licensed psychologist in Pennsylvania. However, he held no such license in New Jersey.  He is and was at the time certified in drug and alcohol counseling.  He also held an employee assistance consultant certificate.  Dr. Robert Weiss, MD is a medical doctor and is board certified in internal medicine and occupational medicine.  Everett C. Sparks, RN is a registered nurse with postgraduate study in physical rehabilitation medicine and held a position as Safety Consultant at the plant in 1994.

Negligence is a theory generally foreign to Workers’ Compensation, but clearly it must be applied in the case at bar.  Since the underlying fear of the plant closing has been determined by the Appellate Division not to be a compensable fear and/or stressor, the actions of the three co-employee professionals cannot be deemed derivative to a compensable occupational claim. “The law recognizes that medicine is not an exact science and does not make the care providers guarantors of the cure of the patient.  A healthcare provider must act with that degree of care, knowledge, and skill ordinary possessed and exercised in similar situations by the average member of the profession practicing in that field.”  Walck v. Johns-Manville Products Corporation 56 NJ 522 (1970), Aiello v. Muhlenberg Regional Medical Center 159 NJ 618 (1999) Schueller v. Alexander Strelinger 43 NJ 204 (1964), Krego v. Louis Carp DO and John Mariani DO 295 NJ Super 565 (App. Div. 1996). 

A review of the model jury charges, establishes that the standard of care must be commensurate with the skill ordinarily possessed by the average member in the field of practice.  In this case, the underlying condition is psychiatric.  However, to hold non-psychiatrist to the level of care to which you hold a psychiatrist, would be grossly unfair and contrary to existing case law.  In the present case, there are three very distinct medical providers. There is a certified counselor, a doctor certified in internal medicine and occupational medicine, and a registered nurse who in combination make up the Employees Assistance Program. Model Jury Charge 5.36A 54 defines the standard of care of a general practitioner: “A person who engages in the general practice of medicine represents that he/she will have and employ knowledge and skill normally possessed by the average physician practicing his/her profession as general practitioner.”

  The function of an employee’s assistance program is to provide counseling on a voluntary basis and to act as a triage for the assessment and referral to specialized fields of medicine.  Since the three professionals operated as a unit as the Employees Assistance Program, they should be held to a standard consistent with employee assistance programs in identifying employees with personal problems and referring them for treatment, support, and motivation to complete treatment and assist in their rehabilitation.  When applying a standard of care it is appropriate to look at the skills possessed by each of the members of the Employees Assistance Program but at no time would that standard of care rise to the level of the standard of care to be imposed on a board certified psychiatrist. 

At the commencement of the retrial of this matter the parties agreed to offer the prior testimony of all witnesses that testified before Judge Parks and recall some witnesses and offer additional evidence.  All documents which have been marked as P-1 through P-33 were again received and marked in evidence.  In addition to the previous witnesses the parties recalled Olga Karak to the stand as well as Lauren Karak, Anthony Avagliano, John Gamballe, Dr. Robert Weiss, Everett Sparks, RN, Dr. Stephen J. Glass, MD, Dr. Clancy D. McKenzie MD, and Dr. Barbara Ziv, MD. In addition to the testimony, additional exhibits R-1 and R-2 together with P-34 through P-39 were offered into evidence. 

John Karak was a longtime employee of DuPont working most of his career with the respondent in the plant in northern New Jersey.  There was rumor that the plant in northern New Jersey was to close. At that time, John Karak was a gold seal operator and had an opportunity to transfer to the DuPont plant in Bridgeport, New Jersey.  The gold seal operator in the Bridgeport plant had either retired or was about to retire but they were still using his license for the operation of the plant.  John moved his family to Washington Township, Gloucester County in the same county that the DuPont plant was located.  He moved into a new housing development where construction was still ongoing on other homes in the area.  There is no dispute that John had been an outstanding employee of DuPont since the 1970’s and that he transferred to southern New Jersey in 1992. 

The new home in Washington Township was one of the first homes built in the development and John was working shift work, which on occasions required him to sleep during the day.  The ongoing construction together with a skylight in the bedroom made it difficult for John to get sleep. By the beginning of 1993, he was having problems getting sufficient rest and developed anxiety to a rumor that the plant that he was now working in might close and he might lose his job.  Olga Karak, John’s wife, convinced John to see a doctor concerning his problems.  John made an appointment with Wenonah Family Practice and saw Dr. Benito Rosero. Dr. Rosero felt that John’s blood pressure was elevated and that he had anxiety as well as sleep deprivation.  Dr. Rosero prescribed sleep medication and gave the petitioner anti-anxiety medication as well.  Olga Karak testified that in addition to not sleeping John was not eating and began drinking more heavily he became distant to his wife and children and appeared depressed.  At one point, as Olga testified, John suggested that she might come home someday and find him and at which time he pointed to his head with his hand in the form of a gun.

 While I find Olga Karak to be credible in her testimony concerning observations of her husband, I am also satisfied that she at no time communicated those observations to anyone.  On cross-examination she did not indicate any of those observations including drinking, pointing his finger to his head, or the general distancing himself from his family were ever communicated to anyone at DuPont, Dr. Glass, or Wenonah Family Practice Dr. Rosero.  There is a general consistency in the testimony that John Karak blamed his anxiety on his inability to sleep but explained the inability of sleep based on the construction in the general neighborhood and the skylight in his bedroom.  At no time did John suggest that he was unable to sleep because of his fear of the plant closing or job insecurity although clearly that played a much greater role in his mental health then he ever let any of the professionals know.

Further evidence of the lack of information is the notes of John Gamballe concerning his initial meeting of April 16, 1993.  The notes in exhibits P-12 indicate that John denied depression, indicated that his appetite is okay, works-out two to three times a week, sex is okay, and denies suicidal ideation.  John did indicate that he can’t sleep but it is as a result of noise in the development and over the counter medications are not helpful and he had gone to see Dr. Rosero.  John had further indicated that he had stopped taking the medicines provided by Dr. Rosero, feels that Dr. Rosero overreacted and clearly indicated that he had not made a mistake “on the job”.

When Mr. Gamballe spoke with Nurse Everett Sparks on the 15^th of April of 1993, Nurse Sparks had related a conversation with Dr. Rosero indicating possible depression and possible suicide. As a result of the conversation with Nurse Sparks an appointment was scheduled for John and Mr. Gamballe later that day.  

I have previously reviewed the notes of Mr. Gamballe and the report P-16 in evidence.  The entry following the discussion with Dr. Rosero refers to the Doctor having expressed concern to employee “i.e. Nurse Sparks re:  potential suicidality”. After discussion with Dr. Rosero, Mr. Gamballe was satisfied that John made no statements indicating active or passive suicidal ideation, but the Doctor did express the desire to catch the situation early involving what appeared as evidence of anxiety based on the insomnia and the concern of losing his job because of the plant potential closing.  It was based upon the discussion with Dr. Rosero that Mr. Gamballe cancelled an emergent session with a psychologist in favor of an evaluation by Dr. Glass, a Board Certified Psychiatrist.

 A review of Dr. Rosero’s testimony at the previous preceding indicates that Nurse Sparks interpreted Dr. Rosero’s statements to be of greater concern than Dr. Rosero testified.  And that seems to be supported by the notes in P-16 previously cited.  Even when Mr. Gamballe confirmed with Dr. Rosero that there was no immediate suicidal ideation, it wasn’t until after meeting with John Karak that Mr. Gamballe changed the appointment from the psychologist as an emergent situation to Dr. Glass the psychiatrist. 

Because Nurse Sparks had characterized John as medicated, Mr. Gamballe referred John to the onsite Medical Doctor, Dr. Weiss.  Dr. Weiss made no definitive diagnosis and his recommendations were “regular work no work restrictions are indicated”. ( P-14 in evidence.)

Dr. Glass is not a party to these proceedings and his case remains in the Superior Court. This court lacks jurisdiction to determine whether he provided an appropriate level of care commensurate with his level of training and experience.  However, his testimony and notes indicate that he was authorized to conduct a clinical examination and provide treatment if necessary.  He acknowledged that Nurse Sparks and Mr. Gamballe were concerned with possible depression and that he was obsessing about losing his job.  John denied problems with loss of appetite, excessive drinking and that he was upset with what he referred to as an overreaction by Dr. Rosero.

The EAP (Employee’s Assistance Program) function was to identify if possible the potential personal problem of Mr. Karak and refer him the appropriate medical provider.  In the case at bar the situation was identified as anxiety and/or depression and Mr. Gamballe referred Mr. Karak to Dr. Glass with a consent and approval of payment made by Nurse Sparks.  Dr. Weiss’ only involvement was a physical for return to work, not a mental exam, but a physical exam.

In reviewing the testimony of Dr. McKenzie and his expert opinion, the court must first determined whether the facts upon which Dr. McKenzie bases his opinion can reasonably be found in the record of testimony or other evidence presented.  If the opinion is based upon on facts which are not in evidence then the opinion fails if those facts are material to the opinion of the doctor.  Dr. McKenzie refers to Dr. Rosero’s records and that Dr. Rosero saw Mr. Karak as suicidal when he left Dr. Rosero’s office.  A review of Dr. Rosero’s testimony fails to reveal a finding or opinion that Mr. Karak was in fact suicidal.  The only reference to further treatments or suggested follow-up was with the Community Mental Health Center if Mr. Karak’s condition got worse.  The testimony of Mr. Gamballe referring to Dr. Rosero’s conversation and an indication that there was no active or passive suicidally is supported by the records of Dr. Rosero.  It was based on the clarification by Mr. Gamballe with Dr. Rosero, that Mr. Gamballe cancelled the appointment with the psychologist for an examination and possible treatment with the Board Certified Psychiatrist, Dr. Glass. 

Mr. Gamballe’s notes further indicated the Mr. Karak was specifically asked about depression, which he denied; was asked about his appetite which he said was okay he indicated that he worked out two to three times a week, stated that sex was “okay” and he denied suicidal ideation.  Even with that information, Mr. Gamballe still pursued the referral to Dr. Glass.  Mr. Karak also denied that he had made a “mistake” on the job by opening the wrong value.

Again, Dr. McKenzie relies on facts which are not developed through the testimony or other documentation in evidence but relies on statements that were not made or at least not supported by the evidence that Mr. Karak was in fact suicidal.  And other than Nurse Sparks, no one else indicated that Mr. Karak was depressed.  While the allegations of excessive drinking, poor appetite, zombie like appearance, guns in the house may have contributed to the ultimate self-inflicted gunshot wound, they were never communicated to any of the medical personnel by anyone including Mr. Karak and his wife Olga.  The information provided to Dr. Glass which was through a slight embellishment by Nurse Sparks of a conversation with Dr. Rosero related that Mr. Karak was “presenting with major depression, MD wanted to hospitalize”..  Those remarks far exceeded the actual observations of the personnel at DuPont and did not accurately represent the opinion of Dr. Rosero. The EAP did appropriately refer in favor of a potential depression or depressive condition. 

Dr. Ziv in assessing the activities of the Employees Assistance Program referred to the appropriateness of Nurse Sparks when noting that Mr. Karak appeared slightly depressed and lethargic referring him to Doctor Weiss and referring him to Mr. Gamballe.  Mr. Gamballe contacted the other people including Dr. Rosero, spoke with Nurse Sparks, spoke with Mr. Karak, and referred Mr. Karak to the outside psychiatrist. In the referral to Dr. Weiss, Dr. Weiss was instructed to conduct a review for a physical return to work, which he did.  Dr. Ziv’s opinion was that DuPont was referring for treatment, not treating Mr. Karak and I find that is supported by the evidence presented. 

I reject the opinion of Dr. McKenzie based on his opinion being supported by facts not in evidence.  The steps taken by the DuPont Employees Assistance Program staff were consistent with the purpose and function of such a program and that they observed, gathered information, and referred for the specialized treatment they felt appropriate.  Mr. Karak’s death, however tragic, is not the result of deviation from the appropriate standard of care for the Employees Assistance Program or that of Nurse Sparks, Mr. Gamballe, or Dr. Weiss.

Respondent should prepare an order consistent with the finding of this court and pay a stenographic fee to Jersey Shore Reporting L.L.C. in the sum of $2,100.00.

_______________________________

                                                                        Richard E. Hickey, III
                                                                        Administrative Supervisory Judge

Dated:___________________________