The Petitioner filed a claim petition on April 15, 2003 alleging psychiatric and emotional disability due to work-related stresses and strains.  Specifically, the Petitioner alleged an occupational exposure from October 1979 through her last date of employment with the Respondent on February 5^th of 2003.  The Respondent filed an answer to the Claim Petition on October 20, 2003 admitting to employment on the dates alleged in the Claim Petition but denying that an injury occurred out of and in the course of employment.

Over the course of the following five (5) years this claim was repeatedly adjourned due to pending harassment, discrimination and constructive discharge claims filed by the Petitioner with the Department of Correction’s Equal Employment Division, the Federal Equal Employment Commission and the New Jersey Division of Civil Rights.  Each of those claims alleged the same nexus of facts as the Petitioner’s work-related occupational exposure claim. 

On June 25, 2008, after the Respondent’s unsuccessful attempt to argue that a Summary Judgment in the Petitioner’s federal and state claims were “res judicata” for the workers’ compensation claim, the matter was finally pre-tried for the purpose of having the court decide, on a bifurcated basis, whether Petitioner’s occupational exposure is compensable.

Petitioner’s Testimony

The petitioner worked for the State of New Jersey in the Department of Corrections from October of 1979 until February of 2003.  On direct examination she testified that, “the reason why I retired in 2003 is because things had gotten so unbearable for her to continue to perform her duties in the way they were given.  It just came a bit too much for me to handle.”  (See 3/25/09 transcript; Page 7, Lines 5-8)  She further stated that “ had not the pressure or the abuse that she suffered with all of the things that was happening, she could have maintained her job, stayed a whole lot longer…it was just unreasonable the things that was expected of her...she was planning on working until she was 65.” but, instead retired at the age of fifty-two (52).”  (See 3/25/09 transcript, Pages 19, Lines 16-25 and Page 20, Lines 14-19) 

The Petitioner alleges that her problems at work began when she was transferred to the Training Academy in February of 2002.  She described several very specific incidents that took place at the Training Academy.  She alleges that each of the incidents had the cumulative effect of causing her stress and ultimately resulted in her early retirement: 

1. The first incident, allegedly, occurred sometime in July of 2002.  She was scheduled for a vacation and as the date drew near, she was asked to bring in proof of her vacation plans.  She recalled asking her supervisor whether anyone else had to bring in proof that they were going on vacation.  The Petitioner said she had never been required to do that before and was not aware of any other officer who had been required to do that…she did, nonetheless, bring in a copy of her plane ticket the next day and was advised that in a couple of days she would be told whether her vacation would be approved.  The Friday before her scheduled vacation she was advised that it would not be approved.  (See 3/29/09 transcript, Pages 20-24).  She was very upset and voiced her dissatisfaction to her immediate supervisor.  Ibid. 

All of the remaining incidents are alleged to have occurred between October of 2002 and February of 2003.

2. Sometime in October of 2002, the Petitioner’s immediate supervisor noticed she was having problems and suggested she go to a Crisis Center on her way home from work.  Petitioner alleges that she had no idea that the facility her supervisor referred her to was a Crisis Center and upon realizing where she had been sent, became hysterical and called her Supervisor to question his intentions. (See March 29, 2009 transcript, Page88, Line 1 – Page 90, Line 10)
3. The Petitioner also alleges that she was not given the opportunity to participate in a Firearms Instructor Training despite being on a list with three or four other male officers to become a Firearms Instructor.  Her recollection was that the instructor training was scheduled to start three days after her return from a brief vacation.  When the Petitioner returned from her vacation, she was told that she would not be going to the training.  At first, her superiors did not provide her with any explanation.  But, later, the Petitioner was advised that she had not “pre-qualified” for the training and therefore did not meet the prerequisites for taking the Firearms Instructors Course.  See 3/29/09 transcript, Page 25, Line 19 – Page 29, Line
4. On another occasion, the Petitioner recalled being moved out of a slot to obtain the Certification for the Baton.  She needed to have Baton Certification in order to assist with trainees.  Petitioner testified that the opportunity to obtain the baton certification was given to someone who was still in the recruitment area and not a part of the Academy’s permanent staff.  The Petitioner admitted that she had, in fact, taught the baton courses at one time, but her certification had expired and she needed the additional training in order to maintain her State Certification.  (See 3/29/09 transcript, Page 29, Line 24 – Page 30, Line 25)
5. Ultimately, as a result of not being able to obtain the aforementioned re-certifications, the Petitioner testified that she wasn’t able to teach or to interact with the trainees.  She alleges that she was moved from one assignment to another; it became strenuous, her hours changed, she didn’t know if she was going or coming and it was difficult to prepare for her assignments.  (See 3/29/09 transcript, Page 31)
6. The Petitioner also recalled a cadence song that she overheard a group of trainees singing which used sexually explicit language describing a man’s genitals.  The Petitioner alleges that the song would have been particularly offensive to any woman.  She was working with a group of mixed gender trainees when she overheard the song.  She immediately reported the song to her superiors as offensive and advised her trainees not to sing it.  She recalled her superiors saying that the song was motivational and wouldn’t be a problem if there were no females in training.  She alleges that she, instead, was written up for telling her trainees not to sing it.   
7. The Petitioner described another incident when she came in on a Monday morning to find her gun locker wide open and a gun magazine missing.  She immediately went to get her Supervisor, who requested that she prepare a written report of the missing equipment.  Within 15-20 minutes of turning in her report, Petitioner was asked to return to the Administrative Building where, upon her arrival, she noted that an Internal Affairs Officer was present.  Her supervising Lieutenant then took her into a room where she was questioned about what was missing from the gun locker.  He then advised her that he was sending her to Employee Advisory Service (or EAS), a service for officers who were having difficulties.  The Petitioner alleges that she had no idea what “EAS” was or where she was being asked to go.  The Petitioner radioed her union representative to come to her assistance.  The Lieutenant then allegedly confiscated her radio and did not allow the Petitioner’s union representative to meet with her at that time.  The Petitioner underwent an interrogation by Internal Affairs and was asked to sign additional forms.  At some point during the interrogation, the door to the room was closed and her union representative was standing outside of the room.  The Petitioner testified that she didn’t want “them” to close the door.  She alleges that Investigator Rocco from Internal Affairs and Lieutenant Kyle, her Supervisor, were the only two persons in the room with her at that point and she was very fearful because of some of the other things that had taken place that she had never reported.  At a later point, the Petitioner was escorted back to her office to get the key to her gun locker and then to the gun locker.  Sergeant Willey escorted her to her office and both Sergeant Willey and Lieutenant Kyle escorted the Petitioner to her gun locker where her weapon was confiscated.  She allegedly was frightened and fearful that they were going to attack her.  After her gun was confiscated, Petitioner returned to the room for further interrogation.  When the interrogation was complete, Lieutenant Kyle told Sergeant Willey to escort Petitioner off of the property.  The Petitioner contends that it was very embarrassing, humiliating and degrading for her to be escorted out like that. (See March 25, 2009 transcript, Page 55, Line 20 – Page 56, Line 16)
8. As a result of the aforementioned incident, the Petitioner did not work for “a couple of days” and when she reported back to work, she was not assigned any teaching responsibilities.  Petitioner says that she, essentially, sat in the back of classrooms until her retirement.  Petitioner did admit that, occasionally, she policed the parameters of the training facility for cigarette butts and ran miscellaneous errands for people but, otherwise, she did nothing.
9. During the Petitioner’s brief out-of-work period following the gun locker incident she was examined by a psychiatrist at EAS; as suggested by Sergeant Willey.    The Petitioner testified that she never saw the results of that exam or any reported findings. 

In December of 2002, the Petitioner went out on sick leave.  Petitioner alleges that it all became too much to bear, the pressure was too great.  Petitioner testified that she needed to take time off, intermittently, due to her anxiety and stress.  She was frustrated and nervous, having crying spells and couldn’t sleep.  Petitioner became depressed and was upset all of the time. 

On cross examination Petitioner admitted that:

1. Petitioner, in actuality, had begun the process of applying for her retirement based upon her “25 plus” years of service sometime prior to September 25, 2002.  Correspondence from the Division of Pensions & Retirement bearing said date confirms that the Petitioner had, in fact, initiated the retirement process and had selected March 1^st, 2003 as her effective date for retirement.  See Exhibit R-9.
2. During the entire time that the Petitioner was dealing with the alleged work-related stressors, she was also dealing with the revelation that her husband, who worked within the same Department of Corrections was having an adulteress affair with another Corrections Officer.  The Petitioner found out about the affair through “telephone conversations and notes” and acknowledged that the affair had been going on for “years.”  At some point the Petitioner also learned that her husband’s mistress was coming to work at the Training Academy and Petitioner spoke to the Director of the Training Academy about her concerns regarding working with her husband’s mistress. 
3. Petitioner’s pending divorce was a strain on her.  The Petitioner admitted that her husband had filed for the divorce and that she didn’t want it.  She officially reverted back to using her maiden name in February of 2003.  She acknowledged that her husband’s infidelity was “one” of the reasons why her marriage ended. 
4. The Petitioner also admitted that, at some point during this same period of time, she left the marital home and moved in with her mother for support.  During this same period of time, her father was having a lot of health problems.
5. The Petitioner admitted that she heard the inappropriate cadence song only one time.  After the Petitioner reported the lyrics of the cadence song to her supervisor, a letter, dated October 8, 2002, was posted to “All Academy Staff” directing that, effective immediately, the cadence song was to be discontinued.  See Exhibit R-4.  The Petitioner admitted that she, personally, never heard the cadence song again.
6. The Petitioner filed internal complaints alleging harassment and constructive discharge with the Department of Correction’s Equal Employment Division on October 16, 2002 and October 30, 2002 respectively.  The internal complaints were based upon the same facts alleged as stressors in this claim and both complaints were fully investigated and found to be without merit.  See Exhibits R-1 & R-2
7. On direct examination, the Petitioner admitted that her fears with regard to Lieutenant Kyle were based upon his “role playing” during a conflict resolution training exercise wherein the participants were asked to “act” aggressive. 
8. The “gun locker” incident took place after she had been out of work sick and returned with a doctor’s note indicating a “diagnosis of stress and anxiety” and followed her own report that one of her gun clips was missing.  Based upon the totality of the circumstance, the Petitioner’s supervisor requested that she undergo a Fitness for Duty Evaluation and her weapon was confiscated from her.

Legal Analysis:

Under N.J.S.A. 34:15-31 an occupational disease is described as “all diseases arising out of and in the course of employment, which are due, in a material degree to the causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or employment.”  The Petitioner has alleged that the conditions at the Training Academy caused her mental stress.  The facts which were brought out on cross examination shed a very different light on the Petitioner’s direct testimony.  When the actions taken by the Petitioner’s Superior Officers are reviewed in context, it appears that those actions were based upon legitimate administrative concerns and the rules and procedures intended to protect both the Petitioner and her co-workers. 

When the Petitioner completed the Crisis Evaluation intake form on October 9, 2002 she, by her own admission had been living with her mother on and off for a year, was going through a divorce and was having difficulty coping.  She admitted that her primary care physician had been prescribing Paxil for her for approximately a year and a half prior to the date of the evaluation, but she didn’t like the effect the Paxil had on her, so she stopped taking it.  (See Exhibit R-32)  The court finds the Petitioner’s failure to be forthcoming about the stresses in her personal life as purposefully deceiving.  Only upon cross examination did the Petitioner, finally, admit that she was going through a particularly difficult personal situation which undoubtedly would have been difficult for anyone to handle without consequence.  She was working with her estranged husband and her husband’s mistress and by her own admission she was breaking down mentally, having crying spells and was depressed.  The weight of the evidence suggests that the Petitioner’s personal stressors became too overwhelming for her and they began to affect her character while at work.  Her Supervisor’s suggestion that she seek professional counseling appears to have been the beginning of the end of any attempts she may have been making to keep her personal problems separate from her duties in the workplace. 

The only incident alleged to have taken place prior to her medical diagnosis of having anxiety and stress in October of 2002 was the denial of Petitioner’s July vacation time.  The Petitioner had chosen her vacation time prior to being transferred to the Training Academy.  Petitioner admitted that vacation leave within the Department of Corrections is primarily determined based on seniority as set forth in the union contract and that vacation time is selected well in advance.  Although the court agrees that the denial of the vacation time could have been handled differently, the Court is not convinced that, after more than 20 years of service in a “military-like” facility, the Petitioner wasn’t aware of the possibility that her vacation time might not be approved when it needed to be coordinated with an entirely new group of co-workers and, moreover, the Court does not believe that the Petitioner’s disappointment in the Respondent’s denial of that vacation request is actionable as a work-related stress. .

Under Goyden v. State Judiciary 256 N.J. Super 438 (App.Div.1991) aff’d. 128 N.J. 54 (1992) our Appellate Court specifically states that “merited” criticism cannot fairly be considered to be a cause and condition characteristic of or peculiar to a particular place of employment because it is common to all occupations.“  This court finds that legitimate administrative action is analogous to “merited criticism.”  Under New Jersey Administrative Code (hereinafter N.J.A.C.) 10A:3-4.3(e) the Petitioner was required to immediately report a missing firearm.  As a result of the Petitioner reporting her missing gun clip and the circumstances involving the Petitioner’s personal life and in accordance with the requirements and authority set forth in N.J.A.C. 10A:3-4.10(a)(6), the Petitioner’s state issued gun was removed from her possession and she was sent for a “Fitness for Duty” evaluation   The internal complaints filed by the Petitioner with the Department of Correction’s Equal Employment Division (EED) on October 16, 2002 and October 30, 2002 were both fully investigated and found to be without merit.  The administrative hearings within the Department of Corrections were the appropriate body to determine the legitimacy of the administrative actions taken by the Petitioner’s superior officers.  Although this Court is guided by those findings;  more importantly, this Court, independently, finds nothing inappropriate in the manner in which the Petitioner’s supervising officers handled the “admittedly“ delicate and stressful personal situation of the Petitioner which was, unfortunately, effecting her work.

Since there is nothing in evidence that proves that the denial of the vacation time and training opportunities, as well as the “gun locker incident” were NOT based upon legitimate administrative actions, the Petitioner’s reaction to those actions can not be the basis for a stress claim.  The Respondent’s actions in this claim were “merited;” in that they were in accord with administrative procedures.  The Petitioner, in her testimony, admits that the selection process for training opportunities did not guarantee her a place in any class.  She described the vacation selection process in detail and, clearly, based upon her own testimony, vacations were set well in advance and based upon seniority.  She also admitted that some opportunities for teaching required certain pre-certifications.  In accord with reasoning in Goyden, the Petitioner’s subjective reaction to not being able to take her vacation, not being chosen for certain training opportunities, having her gun taken from her and being escorted off the premises can not be considered as the stress inducing stimuli that produces a compensable injury.  The Petitioner has not met her burden of proving that the denial of any of the training and/or teaching opportunities was outside of the parameters of legitimate decision-making by her Superior Officers.

The fact is that this Petitioner’s personal life HAD become a NOTICEABLE stress and other persons in her work environment became aware of her personal situation because it involved other Corrections Officers.  Unfortunately, her fitness for duty as a Correction’s Officer is particularly vulnerable if her mental state is compromised, and as a result, her Supervising Officers had a duty to question any “noticeable” falter in her mental state.  The Petitioner’s Supervising Officers took certain actions based upon her doctor’s note that she handed to them which diagnosed her with “anxiety and stress” and their belief that her mental state was deteriorating.  Those actions included making sure her weapon did not become an instrument with which she harmed herself or others and were, in furtherance of their duties as her superiors.  Under our statute, the issue for the Court to consider is whether there is objective evidence that the repetitive stimuli, viewed realistically, were "peculiar" to the work place.  Williams v. Western Electric Co.,178 N.J. Super 571, 585, 429 A2d 1063 (App.Div.1981).  In accordance with the Goyden decision, the Court can not deem repetitive “merited” administrative actions as the stimuli that caused the stress because ALL jobs involve “merited” criticism and/or administrative actions and therefore that stimuli is NOT peculiar to the Petitioner’s job.

Last but not least, the Petitioner lied about the reason for her retirement.  A letter from PERS pre-dates her problems at the training academy and proves that she had begun the process of applying for her retirement prior to any of the October of 2002 incidents. 

The Petitioner’s has not presented sufficient credible evidence showing that the conditions in her workplace were either “objectively stressful” or “peculiar to her workplace.”  The only incident alleged to have occurred without administrative sanction was the inappropriate cadence song.  In light of the fact that the Petitioner only heard the cadence song one time and recognizing the number of “other” incidents that were the subject of this claim, the singing of the cadence song, in and of itself, is insufficient, on its own, to be considered as “repetitive stimuli” peculiar to this Petitioner’s employment.  Furthermore, while the Petitioner’s work-related disappointments may have created stress, her retirement decision was more likely to have been triggered by her personal life, which had, unfortunately, become intertwined with her workplace.

The Court is hereby dismissing the Petitioner’s claim with prejudice for failure to sustain the burden of proof.  The facts alleged do not meet the standards of Section 31 of the act.

The Respondent is ordered to prepare an Order of Dismissal consistent with this decision and pay the following:

Stenographer fees to John Trainor, Inc.:$_____________ for ___ ½ days of testimony.

January 27, 2010                                                                

_______________________

   Hon. Ingrid L. French, J.W.C.