CP# 98-6501 Mancuso v. Bell Atlantic, 94-48601 Madigan v. Bell Atlantic , 98-37986 Connors v. Bell Atlantic
WORKERS COMPENSATION COURT
By ANDREW M. SMITH, JWC
Raymond Shebell, Esq.
Russell Cozier, Esq.
For Respondent (Madigan & Mancuso cases)
John Jasieniecki, Esq.
For Respondent (Conners case)
These three cases, which involve claims for stress against Respondent Bell Atlantic (Bell) were tried separately. Their factual patterns are quite different. But, a common thread runs through all of them. All three Petitioners manifested psychiatric symptoms during the course of their employment. Medical experts who testified for both sides in each case(or whose reports were stipulated into evidence) agreed that each Petitioner has psychiatric disability. The question presented by each case is whether it satisfies the criteria of a subtle fact sensitive test crafted by New Jersey appellate courts to determine when an employee’s psychiatric condition bears a sufficient nexus to his/her work to be considered to have arisen out of employment, and therefore be deemed compensible.
One need only read Larson on Worker’s Compensation sec 42.20et seq. Mental and Nervous Injury to realize that stress related workers compensation cases have troubled legislatures and judges throughout the country for quite some time. Authorities on workers compensation law seem to agree that, given the complex nature of mental illness, there should be some limitations on an employer’s liability for such claims. Some states, such as New York, Texas, and New Mexico, have severely restricted claims arising out of events such as transfers, promotions, and terminations. Other states have either prohibited or strictly limited occupational psychiatric claims, either by legislation or by court decision. California, for example has taken a somewhat unique approach. California Labor Code, sec 3208.3(b)(2)(3) requires that employment be a substantial cause of the psychiatric illness, which is defined as at least 35 to 40 per cent of the total causation; it also bars occupational stress claims by employees who have worked less than six months for a particular employer.
New Jersey has no statute which defines the elements of a compensible claim for stress or emotional illness. In the absence thereof, guidelines for eligibility have been established by judicial decision in the following cases: Williams vs. Western Electric 178 NJ Super 571 (App. Div., 1981); Saunderlein vs. E I DuPont 102 NJ 402 (1986) and Goyden vs. State Judiciary , 256 NJ Super 438 (App Div, 1991) affirmed 128 NJ 54 (1992).
The foregoing cases require that, to establish a compensible claim for mental or emotional stress, a petitioner must prove that:
- the onset of the alleged mental or emotional condition issues from or is contributed to by conditions which bear some essential relation to the work or its nature.
- the alleged mental or emotional condition is a reaction to something which, when viewed objectively, can be considered capable of causing stress in others besides the petitioner; an idiosyncratic reaction by an individual to a thing which would be unlikely to evoke stress in others is insufficient to meet this standard.
- there is competent objective medical evidence beyond the mere statement of the petitioner to support the claim of emotional or mental illness and to demonstrate how the employment produced the condition.
Catherine Mancuso is a 45 year old woman who has worked as a customer service representative for Respondent Bell Atlantic (Bell) for the past 25 years. Prior to 1996, her career there was uneventful. She received job good performance ratings and she appears to have been well regarded by her supervisors and co-employees. It appears from her testimony that she was otherwise satisfied with her job.
Until 1995, she lived in West Orange and had worked in Respondent’s Orange, Bloomfield, and Roseland offices. In that year, she moved from West Orange to Manahawkin, and requested a transfer to a job site closer to her new home. This resulted in a temporary transfer to Bell’s Freehold office in late 1995 with the expectation that she would go to Toms River when a vacancy occurred there.
She became first became ill while working at the Freehold office. The illness was psychiatric in nature and necessitated her taking sick leave from August until mid-November 1996. Petitioner claims this illness began when she developed a panic attack after a team coach named Ellen Blaze at the Freehold office sat along side her and monitored her work. On the day this attack occurred, she admitted that she felt fatigued and under stress because she had been required to work one hour overtime each day and also because she had a daily 108 mile roundtrip commute from Manahawkin to work. She also told Dr. Noone, her therapist, that she was extremely apprehensive about the fact that she was about to have surgery on her mouth. The fact that a dentist had sexually molested her when she was 10 or 11 greatly magnified her fear of the anticipated operation.
I am not satisfied that Petitioner has proven that the mental illness which occurred in August 1996 was sufficiently related to her employment to have qualified as a compensable psychiatric illness under Goyden vs State Judiciary. or Saunderlein vs. EI DuPont, supra.
First, her commute to work falls outside the following parameter set forth in NJSA 34:15-36:
Employment shall be deemed to commence when an employee arrives at an employer’s place of employment and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under control of the e mployer.
Fatigue from commuting is no more the responsibility of the employer than an accident on the way to work. Second, there is no objective evidence to satisfy me that working an extra hour each day for a few months was so stressful that it could be considered a material contributing cause of Petitioner’s condition. Third, although Ms. Blazé, the team coach may have been a very tough boss, there is no evidence that she was abusive or threatening toward Petitioner on the afternoon in question. Finally, Petitioner admitted that she was very uptight about other things that day. She testified that she wouldn’t have been so upset if she had been monitored on another day. The fact that there was impending dental surgery, compounded by fear rooted in a horrendous childhood experience with a dentist suggests that it played a larger role in the onset of her illness in August 1996 than anything at work.
I would further note that unlike Diane Madigan in the companion case, Ms. Mancuso’s testimony didn’t focus very much on her work routine after the workplace had become more regimented in recent years. The real focus of this case was the harassment by co-employees. The most significant reference to her work was the testimony about the fact that Ms. Blaze monitored her on a day that other problems were upseting her.
By the time that Petitioner had recovered had recovered from her August 1996 illness, a position had become available in Toms River. She reported to that office upon her return to work in November 1996. There, she experienced a considerable change in the climate of her work enviornment.
Ms. Mancuso testified that she is a lesbian. The testimony, which I heard satisfied me that, her co-employees in East Orange and Roseland (and also Freehold for the short time she was there) accepted her for who she was and worked well with her. As soon as she arrived in Toms River, the picture changed. During her first day in that office, a co-employee approached her and told her that another co-employee named Lori who had been assigned to sit next to her didn’t want to do so because “the thought of sitting next to a lesbian makes her sick.” Later that day, her supervisor brought her into the office and asked if she’d mind moving to another work seat to avoid upsetting Lori. She filed a grievance about the situation with the union representative. That resulted in a meeting with the union rep and Lori at which Lori stated to her “I was just worried that I was a single woman. I thought maybe I should get a wedding ring, so that you wouldn’t ask me out”. Lori later apologized to Petitioner and was then disciplined for her behavior.
Petitioner and Jennifer Marter, her union rep, testified that Lori seemed very popular with the other women in the office and that the discipline of Lori caused most co-employees to shun Petitioner. When Ms. Marter was asked how Toms River co-workers treated Petitioner, she responded: “Probably that same playground scenario, you know, sort of maybe outcasted slightly.”
The Lori situation and the subsequent shunning upset her considerably and she spent a lot of time with her therapist, Dr. Noone trying to cope with it. She had great difficulty doing so and by January 1997 she became so ill because of it that she had to stop working again for about a month.
About July 1997, while working she heard some co-employeees telling a joke about lesbians. They were speaking in a very low tone of voice and obviously were trying to exclude her from it. She was, however, able to hear most of the story. It involved people using dildos and made her feel disgusted. Shortly afterward,she became deeply depressed and was out on sick leave until February 1998.
Ms. Mancuso’s sexual preference is her business and no one else’s. Thirty five years ago in the case of Griswold vs. Connecticut , 381 U.S. 479, 85 S.Ct 1678, 14 L. Ed (2nd) 510 (1965), the United States Supreme Court enunciated the principle that a human being’s sex life was a private matter. Long after courts neutralized the impact of statutes such as NJSA 2A:10-87, 2A:10-88, 2A:10-92 and 2A:10-110 (proscribing fornication and other private sexual acts by consenting adults), the Legislature repealed them in 1978. The right of an individual to have his/her sex life kept private is guaranteed by the US Constitution. Ms. Mancuso was entitled under state and federal law to have her privacy protected whether she is on or off the job.
The conduct of her co-employees in this case is not unlike that of co-employees who single out another member of the workforce to be the butt of jokes and pranks with resultant injury to the employee so singled out. NJSA 34:15-7.1 pertaining to horseplay and skylarking imposes liability for similar kinds of conduct on the employer, unless the injured employee instigates the behavior or actively participates in it.; Trotter vs. Monmouth County 144 NJ Super 430 ( App.Div., 1976).
If a group of co-employees had converged on Ms. Mancuso and beaten her, without any provocation, she clearly would have been entitled to benefits for any injuries. How different is it then if she is verbally asaulted and treated by her colleagues at work as though she were a leper? She impressed me as a shy self deprecating lady to begin with. I found her statement that she felt stripped of her dignity to be quite credible.
Ms. Mancuso has established that her depressive illness is a disease arising out of her employment. I am satisfied that its onset issues from a condition which bears an essential relation to her work, namely the fact that she must sit everyday in a room with people who chose to demean her because she has a lifestyle which differs from theirs. The poor treatment happened at work. She may be a rather fragile person. But, it would be hard to argue that the mean spirited remarks, jokes and behavior she experienced were not a material contributing causes of her reactive depression. The remarks, jokes and other behavior are certainly conditions which, viewed objectively, can be considered stressful. Her reaction to them could hardly be considered idiosyncratic. .I’m satisfied that it was the principal reason why she became ill again and why her prior psychiatric disability got worse The testimony of her treating doctor and psychiatric expert confirm this fact. Indeed, Dr. Flicker, who prepared a report for the Respondent states that Petitioner has permanent partial disability as a result of co-employee mistreatment.
Petitioner lost confidence in herself and her ability to do her job. She further lost interest in activities like travelling. Vacations were spent at home. She had previously been active in social activities and union activities. Now she shrinks away from them.
It would have been helpful here if evaluating doctors had apportioned disability between that resulting from the July 1996 illness and that which the subsequent illness caused the her co-employees’ inappropriate response her sexual orientation. But, none did. The late Dr. Flicker did, however, state in his report, which was stipulated into evidence that she had psychiatric disability attributable to such treatment by her co-employees. Petitioner testified that this made her much less sociable and caused her to avoid people. I am satisfied from this testimony and from Dr Eisenstein’s that the root of this problem was an objectively verifiable situation to which Petitioner reacted by withdrawing and becoming depressed.
I find that she has a disability of 15% partial total on psychiatric basis for the depression and social withdrawal which I am satisfied resulted from coworker harassment about her sexual preference. I am also satisfied that she has additional psychiatric disability for her panic attacks(which I have not to have been employment related) Her overall disability on a psychiatric basis is therefore greater.
Her award is 90 weeks of disability payments @ $128/week = $11,520. Respondent is directed to pay for all of Petitioner’s medical bills for treatment after the November 1996 episode with Lori, and after the July 1997 joke incident until her return to the job in early 1998. She is also awarded temporary disability for those two periods.
Dr. Eisenstein is allowed $450, payable half by each party; steno fee is $900 payable by Respondent.
Petitioner’s counsel will please prepare and submit an order reflecting the terms of this decision and advising me of the exact amount of medical benefits received.
Diane Madigan is 54 year old woman who has worked 24 years for Respondent Bell and its predecessor NJ Bell in the customer service department. Until 1988, she typed service orders and assisted representatives who took them from customers on the phone. In 1988, she became a consultant and began servicing customers herself on the phones. She described the job between 1988 and 1994 she as something like that of a troubleshooter who took orders and complaints, then followed through on customer requests, and called the customer back with an answer to the question or problem. The job involved no selling of any products, only rendering customers assistance with their problems and complaints. During that time period, if there was a requirement that consultants also be salespersons for Bell, I am satisfied that it was rarely observed.
At first, Petitioner dealt with residential customers; then later with business customers who had more complex kinds of customer problems. I’m satisfied that she initially did this job well and enjoyed doing it. She impressed me as a very conscientious lady with good people skills, who has a lot of initiative. She appeared to me as someone who could be assigned a job task and trusted to complete it without very much supervision. Her supervisor, Susan Coletti, described her as “ a really, you know, satisfactory employee.” Bonnie Di Pasquale of Bell’s human resources department, testified that Petitioner’s annual job ratings between 1988 to 1994 were good to excellent.
I am satisfied from Petitioner’s testimony and from that of co-worker Helen Mc Mullen that in 1994, Bell began to change the position of consultant into something of a production line operation which it had not previously been. A computer (which Bell workers call ET) rather than a live person began to monitor all incoming customer phone calls and assign them to consultants. Time limits for the completion of particular tasks began to be imposed on consultants. Once a consultant completed a conversation with a customer and hung up, the computer assigned the consultant to another customer. The consultant was unable to get back to the previous customer, and vice versa, as they previously could. When things got busy, consultants often didn’t have enough time to follow through on customer requests in an expeditious manner; they were instructed to give various excuses to stall the customer. If a consultant wanted to leave his/her station and take a break, go to the bathroom, or have lunch, the consultant had to punch a code number into the computer to advise where the consultant was going or what he/she was doing. If a consultant spent more time away from his/her seat than that allotted for a particular activity (five minutes, for example, at the bathroom), the computer advised the boss, and the employee could be sanctioned. Also, Bell began to instruct all consultants that they make sales pitches for Bell products to every customer who called in with a request or complaint about his/her telephone service. Bell also began to assign a sales quota to each consultant.
Petitioner and Ms. McMullen convinced me that in 1994 they began receiving a much greater number of calls from irate customers than each did during Petitioner’s first six years as a consultant, and that they find dealing with all of these irate people to be quite stressful. I am also convinced that Petitioner Madigan does not have an aptitude for making sales pitches to people and that she is quite uncomfortable doing so. I am also satisfied that many other long time Bell employees who had worked as consultants are in the same position that she is in. They are required to make sales pitches,even if they are salespersons by nature, and if they are unable to do so, the only alternative that they are given is a job with lower pay. I am satisfied that Ms. McMullen and many of her long time consultant-contemporaries worked under these conditions at Bell in September 1994., when she became ill.
In September 1994, on a day when Petitioner was attempting to complete a particularly difficult order, ET assigned another very difficult situation to her and began pushing her to finish that one so that she could take yet another call. Petitioner finally became overwhelmed and had to leave work to get medical attention. She was treated with heavy doses of tranquilizers and antidepressants. She received psychotherapy and wasn’t able to return to work until January 1995.
Petitioner’s psychiatric witness, Dr. Keill gave competent objective medical testimony beyond Petitioner’s mere statements which demonstrated how the work conditions which culminated in the September 1994 event produced her illness. When Dr. Holl, Respondent’s psychiatric expert testified that Petitioner’s condition was based on “her perception of stressful situations at work”. When asked on cross examination if Petitioner’s perception was not a perception of an objectively verifiable condition, Dr. Holl could not deny that it was.
I n summary, I am satisfied that Diane Madigan’s psychiatric condition constitutes a claim for work related stress which is compensable under the guidelines established by our New Jersey courts.
First, her emotional condition issues from and was materially contributed to by conditions on the job, namely, from the pressure which she experienced from dealing with a lot more irate customers than she had in the past, from the regimentation created by ET, from the inadequate amount of time that she had to do her job properly (as appeared to be the situation on the day that her breakdown occurred), and from the requirement that she now make sales pitches to every customer who called her.
Second, Petitioner’s reaction to these conditions is hardly an idisosyncratic reaction on her part to a condition that would be unlikely to evoke stress in others. I am satisfied that more than a few of Petitioner’s co-employees have reacted to these conditions as stressful. Both she and Ms Mc Mullen have testified that many of their fellow workers on the ET site are experiencing stress from their jobs and many are taking tranquillizers. I would note that Bell refused to answer Petitioner’s attorney’s interrogatory question of how many persons doing the same job as Petitioner does have been granted sick leave because of stress. I cannot draw a favorable inference from their failure to do so. Ms. Madigan is not imagining that these conditions exist. She is not hallucinating about them. She doesn’t consider them part of some sort of grand scheme by management to destroy her. She is simply having a reaction to objectively verifiable job conditions which most people would at least find annoying and which many would find very stressful.
Finally, I am persuaded by the psychiatric testimony that I heard and have already described that Petitioner has a permanent partial psychiatric disability which conforms to the criteria for a compensable psychiatric condition set forth in Saunderlein vs. E I DuPont 102 NJ 402 (1986)
After considering all the evidence, which includes the opinions of the examining doctors for both parties who agree that Petitioner indeed has permanent partial psychiatric disability.
I find that she is disabled as a total occupational unit on a psychiatric basis to the extent of 10% partial total.. Her condition manifested itself in September 1994.
I award her 60 weeks of disability payments @ $123/week= $7380.00. She is also awarded temporary disability at the 1994 rate for the period of time that she was out of work and also reimbursement for cost of any medical treatment.
I allow Dr Kiell $450, payable half by each party, for his testimony. I allow a steno fee payable by Respondent in the amount of $600 to State Shorthand and $150 to Trainor .
Will Petitioner’s attorney please submit me an order which embodies the terms hereof and sets forth the exact amounts of the temporary and medical that are due.
John.Conners began working for Bell in June 1996. From then until April 1998, he worked as a customer service representative in the Freehold office where he seemed to like his job and get along well with his co-employees and supervisors. In April 1998, he applied for a promotion to a position in the repair office. His supervisors tried to discourage his taking the promotional exam. He insisted on taking the exam (known as the CART test), and he failed it. He didn’t believe that he’d really failed the test; he thought that it wasn’t much different than the one he took to qualify for the position which he already held.
He demanded that his employers furnish him with a copy of the tests and his results. He was quite insistent about it. His supervisors refused to give it to him. He complained strongly about the situation and threatened to sue, but never followed through on his threat. At trial, Petitioner testified a great deal about the test. His attorney sought to subpoena a copy of it. Respondent argued that it was privileged and moved to quash the subpoena. That motion to quash was never heard. Instead, the parties stipulated that I review the test in camera. The CART test was eventually admitted into evidence at trial and witnesses were called to testify about it.
Not long after Petitioner failed the CART test, Brian Weingartner, a supervisor, phoned him and told him about a position on the “red phone” in Cedar Knolls office. I got the impression from Weingartetner’s testimony that he found Petitioner to be an annoyance to him because of his complaints about failing the CART test. He got the impression that the job would provide him with a nice boost in his income because it involved a lot of overtime. Others in Freehold warned him to be wary of taking the Cedar Knolls position without checking it out more carefully, but he disregarded their advice. When he got there, he found out that it was the same job as he had in Freehold with an hour and a half longer commute and no pay increase. No overtime, either. Some other incidents occurred such as delay in receiving his pay check, a transfer into a different union and problems with processing medical benefits for his wife. But, I am satisfied that he was really angry about was failing the promotional test and then the transfer to a job which was not what he thought it would be. He testified that he believed that “management was trying to screw me”. He seemed to think that every misfortune which befell him during this time was part of some sort of a grand design by management to injure him.
When Petitioner returned to Freehold, he made no attempt to conceal his dissatisfaction with management. Co-employees testified that his behavior changed. His appearance became sloppy and dissheveled. He started having problems with supervisors and they had problems with him.
One day, not long after he was back in Freehold, Petitioner told some of his co-employees there that he “wanted management’s head on a platter” and that he was thinking about “going postal”. In his trial testimony, he claimed that he was only joking. I do not accept his explanation of these statements. I am satisfied that they frightened some other people in the office. Petitioner is tall, strong looking man, in whom co-employees had noticed recent behavioral and personality changes. I think that these were angry remarks by a very angry person.
I don’t think that anyone was picking on Petitioner or conspiring against him on the day of these remarks when he was escorted out of the office. Bell suspended him for workplace violence and directed him to submit to a psychological exam before he could return to the workplace . I would note that after this point, he began to experience severe psychosomatic and psychiatric symptoms and he started getting psychotherapy which continues to the present.
I conclude from the evidence before me that Petitioner is deeply troubled person. When I saw Petitioner in Court, he appeared very anxious and restless. His testimony often rambled and was hard to follow. He looked like someone who had the weight of the world on his shoulders…. a person with some significant psychiatric problems. The medical evidence convinces me that he has a very severe and disabling psychiatric condition. The question is whether it is rooted in something which in the legal sense can be considered to have arisen out employment or whether it arose from a problem deep within the recesses of his own mind which causes him to see dangers which don’t really exist outside of his mind.
When I add up all of the facts here, I am just not satisfied that Petitioner John Conners was reacting to something which was objectively verifiable. I found the testimony of his therapist Dr, Ciampi on this point to be quite revealing. The Doctor testified that Petitioner “ had refused to leave home because he believed that people from Bell were following him….he recognized …that this was not rational or logical…but he could not shake these thoughts…” Dr. Ciampi pinpointed the test failure as the time when Petitioner’s illness began. The following colliliquoy occurred on cross examination:
Q. Did you explain to him that sooner or later, people are generally disappointed when they don’t pass tests?
A. Yeah, we talked about the fact that this would lead to a feeling of disappointment in most people.
Q. And, did you explain to him that, sooner or later, most people end up accepting the fact that they didn’t pass the test and move on?
A. Well, we explored the reasons why he couldn’t do that as part of the treatment, what was his state of mind, what was his thinking as to why he was unable to accept it.
Q. And what was that?
A. His firm belief that, there was you know, some unfairness involved in how he was evaluated..
Q. And assuming that is true, assuming for the moment I mean that life is not fair to all of us at any moment, why couldn’t this man go forward from there?
A. Mr Conners is a very principled man, someone who has a very clear sense of right and wrong and a belief that if one is wronged, one must do whatever is necessary to right that wrong. You know, a frontier justice guy.
Q. And this very principled man, as you describe him, he’s had that his whole life; is that from his general background?
A. Yeah, I would say that’s who he is, that’s his personality.
I reviewed the test which Petitioner failed. It is comprised of a number of hypothetical job situations to which the examinee is asked to respond. The examiner is then required to evaluate the manner in which the examinee responds to each situation. The examiner rates the examinee on about 100 items such as tone of voice, attitude, appropriateness of response to situation, how quickly the response is made, etc.,etc. It seeks to elicit the type of information that a job supervisor might be looking for if he/she manually observed the examinee on the job for a period of time. I would agree that different examiners could easily reach different conclusions about the same examinee. One examiner might think the examinee did well while another could reach the opposite conclusion, depending on his/her particular perspective on things.
Not withstanding the element of subjectivity about how the test could possibly be scored, I find nothing about the administration of the test to Petitioner Conners which forms a rational basis for his belief that management tried to ”screw him.” There’s no evidence that he took a test that was different than anyone else’s. One witness testified that only about 25 % of the people who take this test pass it on the first try. So, if one applies the law of averages, there is a 75% probability of failure. There’s just nothing about the test which leads me to believe that there is an objectively verifiable basis for Petitioner’s belief that it was somehow being used to target him.
In conclusion, I am not satisfied that Petitioner Conners has satisfied the requirement of Goyden, supra that he prove that his condition is a reaction to something, which when viewed objectively, can be considered capable of causing stress in others besides the Petitioner. The claim petition is therefore dismissed. A steno fee payable to State shorthand in the amount of $1350 is payable by Respondent.
Respondent’s attorney will please send me an order of dismissal.