State News : New Jersey

On July 14, 2014, the EEOC issued Enforcement Guidance on the Pregnancy Discrimination Act (PDA).  That law was passed in 1978 to make clear that discrimination based on pregnancy, childbirth or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

            The basic premise of the law is that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

            Several of the examples provided by the EEOC of possible discrimination concern light duty.  In Example 9 of the Guidance, the Commission provides an example of pregnancy-related animus motivating an employer’s decision to deny a pregnant employee light duty. 

An employee requests light duty because of her pregnancy.  The employee’s supervisor is aware that the employee is pregnant and knows that there are light duty positions available that the pregnant employee could perform.  Nevertheless, the supervisor denies the request, telling the employee that having a pregnant worker in the workplace is just too much of a liability for the company.  It is not necessary in this instance that the pregnant worker produce evidence of a non-pregnant worker similar in his or her ability or inability to work who was given a light duty position. 

The Commission goes on to state that even if there are no statements showing an animus, a pregnant worker can establish a violation of the PDA by showing that she was denied light duty or reasonable accommodations.  In Example 10 the Commission states:

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA.  An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy.  The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of pregnancy-related impairment that constitutes a disability under the ADA.  The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.

However, the Commission goes on to say that if the employer has certain restrictions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer can apply those restrictions across the board, including to pregnant workers. 

The Commission also provides Example 12, demonstrating failure of an employer to apply restrictions equally. 

An employer makes six light duty positions available to workers unable to perform one or more job duties due to an on the job injury, pregnancy, or an injury, illness, or condition that would constitute a disability under the ADA.  A pregnant worker applies for a light duty assignment as a result of work restrictions imposed by her pregnancy.  The employer denies the request, claiming that all six positions are currently filled.  The employee produces evidence that, in the past, the employer has provided light duty assignments to workers injured on the job even when all six assignments were filled.  The employee has provided evidence that the policy’s restrictions were not applied equally to the pregnant worker’s request for a light duty position. 

The Guidance is helpful to employers in understanding and avoiding potential acts of discrimination in relation to pregnant employees.  Employers who have a paternalistic approach to pregnant employees may easily stumble into violations of the PDA.  The focus should be on the ability of the pregnant employee to perform the essential job functions, not on speculative assessments of what a pregnant employee may or may not be able to do.  Stereotypes and assumptions that employers have about pregnant employees generally lead to ill-advised decisions.  For further information on the Enforcement Guidance on Pregnancy Discrimination, please contact the undersigned.

Decedent, Gerald Hallquist, worked as a laboratory technician for E.I. Dupont de Nemours (hereinafter Dupont) from 1968 until his retirement in 1998.  Between 1977 and 1982, he worked in the quality control lab with liquid chemicals including benzene.  He wore safety gloves and a uniform supplied by Dupont.  When working with certain chemicals, the decedent was required to wear additional protective clothing. 

            Prior to his death on June 7, 2010 at the age of 76, decedent filed a claim petition alleging that his exposure to chemicals led to multiple myeloma.  Decedent gave a deposition de bene esse in which he stated that he tested benzene, but he did not state how often that occurred during the five year period he worked in the quality control lab.  He said that he knew what benzene smelled like, but he never quantified the number of times he smelled this chemical while working in the lab.  There were chemical spills when he worked in the lab, but he was not sure of any specific chemical involved. The decedent testified that he smoked a pack of cigarettes between the ages of 19-21. 

Mary Hallquist, decedent’s widow, filed a dependency claim petition against Dupont.  Petitioner produced Dr. Leon Waller, a primary care physician with no subspecialty, as an expert in internal medicine.  Dr. Waller gave an opinion that the decedent’s multiple myeloma was caused by his “long-term exposure” to benzene during the period of time in the quality control lab.  At first, he said that the exposure would have to occur on a daily basis during this time period for it to have caused the decedent’s illness.  He later testified that the exposure needed to have occurred once or twice a week, three times a week, or at least a few times a week.  Dr. Waller conceded that he did not know how many times the decedent worked with benzene or how many times he smelled it.  However, he said the exposure had to have occurred 100 to 150 times a year for him to draw causal relationship between benzene exposure and multiple myeloma.

            Respondent produced a toxicologist, Dr. Shanna Collie Clark, Ph.D, as its expert.  She said that benzene is a carcinogen, but there is no conclusive research showing that benzene exposure causes multiple myeloma.  It is related to leukemia, however.  Dr. Clark testified that benzene as a causal factor for leukemia would be a ten, but only a one or a two for multiple myeloma.  She further said that there was insufficient epidemiological evidence to draw causation, and there was a notable lack of exposure as well.  Dr. Clark said that the decedent wore gloves and protective clothing.  Samples were placed by another individual under a hood and decedent took “one drop, one c.c. in a syringe into a closed system while he’s testing it.” Dr. Clark also testified that benzene exposure cannot be linked to a multiple myeloma condition that occurs 25 years down the road. 

            The Judge of Compensation ruled for respondent and dismissed the case.  The Judge noted that the decedent used a closed instrument, a syringe, injecting the test material into a closed machine in a room that had ceiling fans throughout the room, sucking vapors out of the room.  Petitioner appealed to the Appellate Division, which affirmed the dismissal of this case. 

            The Appellate Division observed that petitioner did not offer proof that the decedent was exposed to benzene 100 to 150 times per year, which even her own expert Dr. Waller said was necessary to draw causation.  Blood tests taken after the alleged exposure from 1977 to 1982 showed no evidence of benzene exposure in the decedent.  The Court noted that the decedent never quantified the amount of his exposure and never testified that benzene was spilled near him.  For these reasons, the Appellate Division affirmed the dismissal of this case.

            This case can be found at Hallquist v. E.I. Dupont de Nemours, A-6223-12T2 (App. Div. October 10, 2014).  The case was successfully defended by Stephen Fannon, Esq., a shareholder with Capehart Scatchard, along with Ashley Mollenthiel, Esq. on the brief with Mr. Fannon.

Grace Hwang worked as an assistant Professor at Kansas State University.  Before the fall term began, she found out she had cancer and needed treatment.  She requested a six month leave of absence, which Kansas State granted.  As the spring term approached, Hwang’s doctor indicated that she would need additional leave time.  She requested another extension through the end of spring and projected that she would be able to teach by summer term.  The University refused, stating that its police had a six-month limit on disability-related leaves of absence. 

Hwang brought suit under the Rehabilitation Act of 1973, which is interpreted in the same manner as the ADA.  The Court said the following:

It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions -- and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.  After all, reasonable accommodations -- typically things like adding ramps or allowing more flexible working hours -- are all about enabling employees to work, not to not work.

The Court approved the practice of employers in granting leaves of absence as a reasonable accommodation, but it cautioned:

Still, it’s difficult to conceive how an employee’s absence for six months -- an absence in which she could not work from home, part-time, or in any way in any place -- could be consistent with discharging the essential functions of most any job in the national economy today.  Even if it were, it is difficult to conceive when requiring so much latitude form an employer might qualify as a reasonable accommodation.

Hwang argued that any inflexible leave policy which has a set period of time violates the law.  She relied on language from the EEOC guidance manual.  She argued that an employer must always modify a leave policy unless one of two enumerated conditions is met -- unless an alternative accommodation would be effective or the requested leave modification would constitute  undue hardship.  The Court disagreed:  “In the first place, the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive.”  The Court found other language in the EEOC Manual which seemed to endorse a six month period as reasonable.  It did acknowledge that if the inflexible leave policy is really a sham, and some people are granted more than six months, then there would be merit to a discrimination claim.  In this case, Hwang was not able to prove that the University’s six-month leave policy was not uniformly enforced.

This case can be found at Hwang v. Kansas State University, 753 F.3d 1159 (10^th Cir. 2014).  Readers should bear in mind that this is just one Circuit Court of Appeals decision, and employers should consult with counsel on the case law in their own Circuit before making a decision to enforce an inflexible leave policy. 

Eric Hanisko worked as a superintendent of a 120-acre golf course in West Windsor, N.J.  He accepted a written offer of employment in February 2008 on behalf of BCGM, a corporation  specializing in golf course management, and CGC, the owner of the golf club.  His employment package included housing at the club. 

            On April 11, 2009, Hanisko fractured his ankle slipping and falling on what he described was a defectly-constructed wooden step in his residence.  The accident occurred in the early morning hours in the second-floor bathroom of Hanisko’s residence on the golf course. He filed a civil complaint against CGC for negligence.  Initially, CGC did not raise the workers’ compensation bar as a defense. 

            Two months later, Hanisko filed a claim petition in the Division of Workers’ Compensation against BCGM, which opposed the claim petition, arguing that the injury did not arise from work.

            After discovery concluded in the civil case, CGC moved for summary judgment, contending that the law suit was barred by the exclusive remedy rule.  Essentially, CGC and BCGM argued that they were joint employers of Hanisko, and he could sue neither company civilly.  Hanisko argued that this defense had been waived by CGC because it was not raised until summary judgment.   Plaintiff also argued that the two employers took differing positions in the workers’ compensation case and the civil case and should be estopped from denying responsibility under the civil law suit.  The trial judge disagreed and granted summary judgment to CGC.

            The Appellate Division noted that it was not inconsistent for CGC to argue in the civil case that it was petitioner’s employer and for BCGM to argue in the workers’ compensation case that the injury did not arise from work.  However, the Court reviewed the “bunkhouse rule,” which states that when residence is provided to an employee, generally an injury sustained by an employee while using such residence is incidental to employment.  The Court noted that although Hanisko was not required to live on the golf course property, his living there was of mutual benefit to the parties.  He paid no rent or utilities, except cable, and his full-time presence there was of benefit to his employer.  “That the lodging was meant to make the prospect of employment at the club more attractive is supported by the written offer of employment, which featured this benefit.”

            The Court also stated that an employer cannot waive assertion of the workers’ compensation bar because jurisdiction is always an issue.  “Subject matter jurisdiction, as the Act’s exclusivity provisions implicate, is a non-waivable defense, which can be raised at any time.”

            The Court concluded that Hanisko had two employers:  CGC and BCGM.  CGC paid his salary of $1,730 biweekly, and BCGM provided his benefits.  CGC provided significant control over Hanisko’s activities because he had to report directly to a CGC manager on a day-to-day basis. The manager, Ms. Suozzo, would walk the golf course with Hanisko and others and check on course conditions.  She would ensure that Hanisko and others were doing their job correctly.  Even though Hanisko would report also to BCGM’s regional manager, he would only meet with him monthly.  Suozzo met with Hanisko more often than the BCGM regional manager, and Suozzo extended the offer to Hanisko to “join the team at BCGM and CGC.” 

            This case has been reported and can be found at Hanisko v. Billy Casper Golf Management, Inc. and Cranbury Golf Club, LLC, A-5053-12T4 (App. Div. September 8, 2014).

Employers continue to deal with federal intrusions in workers’ compensation:  the Medicare Secondary Payer Statute and now new rules being considered by OSHA.  On November 8, 2013, OSHA published a notice of proposed rulemaking to amend the agency’s regulations on reporting injuries and illnesses. 

            OSHA is concerned that injury reporting may be inaccurate because employers may have policies that discourage employees from reporting injuries.  Therefore, OSHA is considering three provisions:

            1) A requirement that employers inform their employees of their right to report injuries and illnesses free from discrimination or retaliation;

            2) A provision requiring that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome; and,

            3) A prohibition against disciplining employees for reporting injuries or illnesses.

            OSHA is asking the following questions:

            * Do you or does your employer currently inform employees of their right to report injuries and illnesses?  If so, please describe how and when this information is provided.

            * Are there any difficulties or barriers an employer might face in trying to provide such information to its employees?  If so, please describe them.

            * How might an employer best provide this information:  orally to the employee, through a written notice, posting or in some other manner?

            Adverse actions mentioned by participants in public meetings with OSHA include automatically disciplining those who seek medical attention and requiring an employee who reported an injury to undergo drug testing where there was no reason to suspect drug use.

            There are already rules prohibiting discrimination against an employee for reporting a work-related injury or illness, but OSHA is not satisfied with existing rules.  It feels additional explicitness is needed because stakeholders were concerned that new requirements to publicize recordkeeping data might provide employers new motivation for disciplining employees for reporting. 

            The comment period for the proposed rule runs on October 14, 2014. 

Kevin Durnien worked as a tractor-trailer driver for United Parcel Service (UPS) from 1996 to 2008.  He was diagnosed with Parkinson’s disease in 2003 but continued to drive for UPS for several years. 

            On October 25, 2007, Durnien was injured when he fell on his elbow while making a warehouse pickup.  He injured his rotator cuff and underwent arthroscopic surgery on his shoulder.  The case was accepted and benefits were paid.

            Several weeks after his surgery, Durnien noticed that his Parkinson’s disease was getting worse:  he was experiencing tremors and his medication was increased. 

            Durnien filed a claim petition against UPS on December 5, 2007 for his shoulder injury.  On April 6, 2009, he applied for Second Injury Fund benefits claiming he was totally disabled as a result of a combination of a work injury and a preexisting Parkinson’s condition.  Durnien was separated from his employment in October 2008.

            The matter was tried before the Chief Judge of Compensation, the Honorable Peter J. Calderone.  Four experts testified in the case, two for each side.  The Chief Judge found that the work injury did not materially worsen petitioner’s Parkinson’s disease, nor was petitioner entitled to Second Injury Fund benefits.  However, he did award petitioner 20% permanent partial disability for the shoulder.  Petitioner appealed.

            The Appellate Division first focused on the issue of whether the work accident materially worsened petitioner’s Parkinson’s disease.  The Court noted that Judge Calderone rejected the testimony of petitioner’s neurologist, Dr. Bereanu, because she was “not a credible witness [and was] ill prepared for her testimony which was essentially a repetitive without foundation assertion that the work accident somehow aggravated petitioner’s Parkinson’s Disease in some non-measurable way.” 

            In respect to respondent’s neurologist, Dr. Steven Mandel, the Court observed that the Chief Judge found his testimony to be sound in stating that the Parkinson’s condition was not aggravated by the work accident.  The Chief Judge was impressed as well that Dr. Mandel actively treats patients with Parkinson’s disease.

            In regard to the entitlement to Second Injury Fund benefits, the Court again affirmed the Chief Judge because the claimant, following his separation from employment in 2008, actually applied for unemployment benefits.  As the Court said, one must be able to work and be available for work to obtain unemployment benefits underN.J.S.A. 43:21-4 (c) (1).  In essence, the petitioner’s application for unemployment benefits was inconsistent with his contention that he was totally disabled, which is a requirement for Second Injury Fund eligibility.

            The Court also agreed with the Chief Judge that an independent reason to reject the Second Injury Fund claim was that petitioner’s Parkinsons’s condition progressed AFTER the work injury.  The statute precludes Fund benefits“[i]f a person who is rendered permanently partially disabled by the last compensable injury subsequently becomes permanently totally disabled by reason of progressive physical deterioration or preexisting condition or disease.”  N.J.S.A. 34:15-95 (d).

            While it was true that the Parkinson’s condition preexisted the work injury, petitioner had been able to work and had been certified for a CDL license.  The condition apparently worsened after the work accident for reasons unconnected to the accident.  The Court said, “Although Durnien’s physician would not certify him for a CDL, Durnien testified that he was capable of continuing to work at UPS and sought a position that did not require a CDL.  He failed to obtain a lighter-duty job not because of a disability, but due to his lack of seniority.”

            This case illustrates several important points.  First and foremost, practitioners need to spend time choosing the right expert witness. In this case, UPS made a wise choice in selecting its expert because he was well qualified and treated patients with Parkinson’s disease.  Secondly, Second Injury Fund eligibility depends on preexisting conditions and will not be available to those whose prior condition worsens after the work injury and only then become totally disabled.  Lastly, the case illustrates that an expert’s testimony must contain more than just a bald assertion that a given condition is work related.  The Chief Judge rejected the expert opinion of the petitioner’s neurologist because there was no scientific foundation for it. 

Kenneth Nichols worked for Midstates Packaging, Inc. as a mechanic.  He was injured on April 7, 2008, while trying to take the transmission out of a Hyster forklift.  While underneath the forklift, Nichols heard a pop in his shoulder when the forklift rolled off the blocks and over his left shoulder.  He did not notice that his skin was broken by the fork lift; however, he reported the injury to his supervisor immediately and a co-worker drove him to Somerset Medical Center.  An x-ray was taken but was negative for fracture, and petitioner was told he pulled a muscle.

            Nichols returned to work but continued to feel pain, which he reported to his supervisor.  Two weeks later he saw his family doctor, Dr. Berdini, who prescribed antibiotics and pain medication.  One week later he saw an orthopedic surgeon, who said that if the pain did not get better, he might need surgery because he had an infection.  Nichols developed a sore red lump on his collar bone.  In May 2008, his doctor told him he would need to have an abscess drained but Nichols declined because he lacked insurance.

            In June 2008, Nichols drove to Virginia for a family funeral, collapsing upon arrival.  He was diagnosed in the hospital with liver failure, MRSA, a broken collar bone, some broken ribs and a herniated disc, spending 11 days in the hospital.  He needed a PICC line to deliver antibiotics.  On returning to New Jersey, he was advised that his job had been terminated.

            Nichols denied any prior injuries to his lower back, ribs, clavicle or shoulder, and he denied any prior MRSA condition.  He continued to see Dr. Berdini and also continued to develop new health issues, such as infections under his arms and on his scrotum, as well as numbness in his left toes.  He had an MRI done at St. Luke’s Hospital which revealed a swollen spine.  He was referred to a pain specialist, who noted that his right pinkie finger became completely rigid.  He began taking OxyContin and Percocet three to four times a day as well as antibiotics and sleeping pills.

            Respondent denied causation between petitioner’s injury and his MRSA condition.  When petitioner went to Somerset Medical Center, the history said “pain, pop after lifting heavy object this am.”  His Regional Manager testified that Nichols told him he was injured pushing a tow motor.  The records from the hospital in Virginia said he had fallen from a forklift about two months ago, injuring his left shoulder.

            The diagnosis differed among the experts in the case.  Petitioner’s expert, Dr. Theodora Maio, diagnosed a fractured clavicle and fractured rib, although the x-rays of the left shoulder showed no fracture.  She thought that the x-rays may not have included the clavicle portion.

            Dr. Leonard Joachim, an internist for the petitioner, found that the blunt injury made the skin more vulnerable to MRSA, which he felt was probably contracted at Somerset Hospital Emergency Room. 

            Respondent produced Dr. Kenneth Peacock, an orthopedic surgeon, who did not believe that the injuries were consistent with the various descriptions of the accident.  He noted that the x-rays showed no fracture while acknowledging that the x-rays did not show the medial clavicle.  Dr. Peacock felt that it would have been very difficult for petitioner to have carried out daily activities with these fractures had they happened in early April.

            Respondent’s internist, Dr. Monroe Karetzky, felt petitioner had MSSA (methicillin-susceptible staphylococcus aureus), not MRSA.  He said that the scrotal testicular fistula could not be related to an incident that happened a year before the fistula manifested.

            The Judge of Compensation found for petitioner.  She said as follows:

Granted, petitioner’s history of the accident varies a little each time he relates it, but the general idea is constant.  He hurt his shoulder at work and went to the hospital for treatment immediately.  The MRSA infection correlates with the accident in time and area of the body affected as well as treatment in the hospital, a risk factor for MRSA.  Unfortunately, petitioner is not the most articulate communicator, nor is he sophisticated as to medical causation.  He described the accident as a shoulder injury.  The hospital interpreted this to mean the shoulder joint and consequently x-rayed the joint.

The Appellate Division affirmed the ruling for petitioner, stating that the findings of the Judge were supported by credible evidence in the record.  It noted that the standard is one of reasonable probability. While there were discrepancies in the petitioner’s history of the accident, the Appellate Division agreed that these were well evaluated by the Judge of Compensation and were found to be of little weight.  The Court also noted that the petitioner was under the influence of morphine when he described the accident to the hospital staff in Virginia.  The case can be found at Nichols v. Midstates Packaging, Inc., A-2445-12T2 (App. Div. August 1, 2014). It shows how complex MRSA claims can be in workers’ compensation and how important the timeline is in deciding compensability.

In a long awaited decision, the Supreme Court of New Jersey has overturned an award in the matter ofJames P. Renner v AT&T (A-71-11) (068744).  The case has drawn national attention because it dealt with a stroke claim from an employee who telecommuted quite regularly.

            Cathleen Renner worked for AT&T for 25 years as a salaried manager.  She telecommuted three days a week from home and worked the other two days in the office. On September 24, 2007, Ms. Renner worked on a project due the next day.  She spoke with her husband, who was on a business trip, around 11:00 p.m. and told him that she would be working through the night.  Her work was often deadline driven, and she would put in whatever hours were necessary to get the work done on time. 

Her son testified that she started working when they got home from dinner on September 24, 2007.  She was still working when he went to bed around 10:30 p.m.

At 7:50 a.m. she took her son to catch a school bus and grabbed her leg in pain while walking out of the house.  At 9:00 a.m. she told a co-worker by email that she did not feel well but would complete the project.  She did in fact complete the project at 10:30 a.m. and sent an email confirming this to her co-workers.

At 11:34 a.m. she called the Edison Township EMS saying she could not breathe.  She was pronounced dead on arrival at the hospital from a pulmonary embolism. An autopsy confirmed that she died of a pulmonary thromboembolism that became lodged in the main trunk of her pulmonary artery.  Her husband filed a dependency claim which eventually led to an award for petitioner at both the Division level and the Appellate Division level.

Petitioner’s expert, Dr. Leon Waller, testified that sitting at her desk the day before and day of her death contributed to her deep vein thrombosis. He said that the sedentary nature of her work “was the precipitant in her getting a pulmonary embolism which resulted in her demise.”  He gave an opinion that the cause of death was a pulmonary embolism caused by deep vein thrombosis.  He said that the clot was large and probably took hours to form, probably originating in her leg.

Respondent’s expert, Dr. William Kritzberg, said Ms. Renner’s death was caused by her morbid obesity, birth control pills, age and an enlarged heart.  He believed that her risk factors contributed more to her death than extended sitting at her desk.  He also disagreed that there was evidence of a clot in the legs or deep vein thrombosis. 

The Supreme Court reviewed the relevant statute, N.J.S.A. 34:15-7.2 and the leading decision ofHellwig v. J.F. Rast & Co., 110 N.J. 37 (1995). It said that this section of the law “reinstated the presumption that coronary-artery disease and heart attacks are the result of natural causes.” Further, the Court summarized the operative standard:

To sustain a Workers’ Compensation petition premised upon cardiovascular injury, a claimant must demonstrate that the harm was caused by a work effort or strain involving a substantial condition that exceeds ‘the wear and tear of the claimant’s daily living’ outside of the claimant’s work responsibilities. Hellwig, supra., 110N.J. at 42; see also N.J.S.A. 34:15-7.2.

The Supreme Court interestingly did not focus on a comparison between the decedent’s non-work activities and her work activities.  Her husband had testified that his wife was very active with her children both in and outside the home.  Instead, the Court focused on the language regarding a “substantial condition.”  The Court said, “Based on this record, we conclude that there has been no showing that Cathleen’s death resulted from a work effort or strain involving a substantial condition or event.”

            The Court found that her extended sitting while working at home “does not constitute a ‘work effort or strain involving a substantial condition, event or happening’ to support a compensable cardiovascular claim.”  It commented that Ms. Renner “was not confined to a specific space or instructed not to move from her workstation.”  The Court reasoned that Ms. Renner “was free to take breaks, during which she could stand, stretch, leave her workstation for a bathroom break or refreshments, or briefly exercise.”

            The case is important to practitioners because there are precious few reported workers’ compensation cases involving injuries during telecommuting.  It is also important because it focused on that part of the definition on cardiovascular claims involving proof of a substantial condition, event or happening.

Inex Graham worked for the Port Authority of New York and New Jersey.  She began her employment in June 1987 as a toll collector.  She was injured in 1989 when she slipped and fell while working at the Holland Tunnel.  She received an award in 1993 of 30% partial permanent disability for her left leg and 12.5% for her low back.

            On September 11, 2001, petitioner was attending a training session on the sixty first floor of the North Tower of the World Trade Center.  After the American Airlines plane struck the building, she walked down the stairs to safety.  Outside she was told to “run for her life.”  She scraped her knee but walked safely away before the building collapsed.  She was covered in white ash and reached a center where others helped clean her up.  She was transported to University Hospital in Newark where she was decontaminated and sent home.  She never returned to work.

            Petitioner filed a claim petition alleging orthopedic and psychiatric injuries from the events of September 11^th.  She alleged that she injured her back with left radiculopathy while running for her life, and she alleged psychiatric injuries from the day’s events, particularly from witnessing a co-worker being crushed in an ambulance as the tower fell. 

            Petitioner produced two experts at trial:  Dr. Vin Gooriah and Dr. Morris Horwitz.  Respondent produced Dr. David Gallina.  Its orthopedic report of Dr. Philip Keats was introduced into evidence by agreement of the parties.

            The Judge of Compensation awarded petitioner 75% of partial total on a psychiatric basis and 10% for her orthopedic claim with a credit of 5% for a prior low back sprain.  Neither party was aware of the prior 1993 workers’ compensation judgment at the time.  The Port Authority sought reconsideration after it became aware of the prior award, arguing that the two awards together gave petitioner 113% of partial total disability.  The Judge thereafter reduced the award to 75% of partial total with a credit of 12.5%.

            The Port Authority appealed on several grounds, including the failure of the Judge to properly credit the prior award.  The Appellate Division faulted the Judge of Compensation for not explaining why Dr. Gooriah’s testimony on the psychiatric aspect of the case was given credence over Dr. Gallina’s testimony.  Dr. Gooriah only saw petitioner once on October 1, 2007, while Dr. Gallina saw petitioner three times:  June 10, 2004, February 15, 2005, and September 28, 2006.  He opined that petitioner had a 5% disability on a psychiatric basis; Dr. Gooriah opined that petitioner had a 75% disability.

            The Court said:  “In accepting Dr. Gooriah’s recommended disability of seventy-five percent, the court made no findings and gave no explanation as to how it arrived at the figure.  The court simply restated Graham’s complaints, and concluded that the award is ‘fully supported by the testimony of Dr. Gooriah, by the petitioner’s testimony concerning her inability to function both at work and a normal life pursuits.’”

            In the opinion of the Appellate Division, Dr. Gallina had the benefit of three exams and was able to chart petitioner’s progress.  “When Dr. Gallina saw Graham in 2005, he noted that ‘she had really substantially improved.’”  He attributed the improvement to psychological counseling she had received.  “Finally, Dr. Gallina remarked that the medication prescribed by Graham’s psychiatrist had helped to calm down some of the anxiety she had been experiencing.  Dr. Gallina’s assessment after his second evaluation of Graham was that she had demonstrated ‘considerable functional improvement although she still indicated that she had some symptoms.’”

            The Court observed that Dr. Gallina still found petitioner had PTSD in his last exam but it was in partial remission.  Petitioner had no signs of depression, was able to drive a car, go to restaurants, go shopping, and her sexual libido had improved.  In a crushing admission at trial, Dr. Gooriah admitted that he could not state whether petitioner had improved more than three years after he examined her because of the lapse in time since his examination.  “Clearly, Dr. Gooriah could not present a reliable opinion based on objective medical evidence as to whether Graham showed improvement or regressed, as he only saw her on one occasion.”

            The Appellate Division reversed and remanded and reminded practitioners that an expert opinion on partial permanent disability must be supported by a recent medical examination.

            This case may be found at Graham v. The Port Authority of New York and New Jersey, A-5419-11T3 (App. Div. March 12, 2014). It is an unusual case because the Appellate Division seldom reverses a Judge of Compensation on the amount of disability.  This was not a dispute about whether petitioner had psychiatric disability from work:  the issue was how much disability she had.  The key to the victory by defense counsel was in skillfully highlighting the greater familiarity which Dr. Gallina had with the petitioner over Dr. Gooriah, and also in highlighting specific activities which petitioner was able to engage in as of the last examination by Dr. Gallina. By contrast, Dr. Gooriah merely parroted petitioner’s complaints, leaving the Judge very little basis to adopt Dr. Gooriah’s opinion as being more credible.

Mary Liu worked as a dealer at Bally’s Casino in Atlantic City.  On November 10, 2012, she was dealing a game of poker.  A customer whom she knew well “signified a check by forcibly striking the table very hard.” Petitioner was not facing the customer and felt startled by the noise.  She said her heart began to race and her hands cramped up.  Petitioner initially rejected an offer to take her to the hospital.

            An hour or so later, petitioner felt her body shaking with numbness in the back of her head.  She felt her heart rate increase with chest pain and was transported by wheel chair to a taxi, having declined the use of an ambulance.  She was treated and released by the hospital.

            The next day petitioner requested medical leave.  She saw Dr. Arvind Patel, M.D., an authorized physician, who diagnosed an acute anxiety reaction and suggested she could return to work.  The following day petitioner advised Bally’s that she did not feel well enough to return to work.  She said her own family doctor diagnosed a heart problem and took her out for a month.

            On November 16, 2012, petitioner resumed working but again found her heart rate increasing with hand cramping.  She was taken to the ER by ambulance and discharged.

            Dr. Patel saw petitioner again and suggested that she return to see him in a week.  Petitioner did not feel that Dr. Patel was helping her and was sent to Dr. Gary Glass, a psychiatrist.  He recommended a three-week absence from work. 

            Petitioner saw Dr. Glass on January 7, 2013.  He recommended an additional two to three weeks before returning to work.  On January 23, 2013 Dr. Glass saw her for follow-up and recommended a neurological consultation given petitioner’s ongoing complaints of weakness and headaches.  When he saw her again on February 7, 2013, he also recommended that she return to work on February 11, 2013.  At that point petitioner became more animated and began complaining about cramping in her arms and fingers.

            When Dr. Glass saw her on February 9, 2013, he kept her out of work again until March 4, 2013.  In the interim, the neurological evaluation was done, including an EMG, EEG, and MRI, all of which were normal.  The neurologist recommended physical and occupational therapy and found that her problems were caused by anxiety.

            On March 1, 2013, Dr. Glass wrote that he disagreed with the neurologist and felt that petitioner had become accustomed to being off work and simply did not want to return to work any longer.  He cleared petitioner to return to work on March 7, 2013.

            Petitioner claimed that her family doctor, Sun Miao, M.D., prescribed psychiatric care and put her out until May 31, 2013.  She never produced the report, however, from Dr. Miao.

            On March 28, 2013, petitioner contacted Bally’s Las Vegas HR office and sought medical leave with a projected return to work date of May 31, 2013.  She was informed that she was not eligible for FMLA and would need to request a personal leave.  She also called Dr. Glass to report that her symptoms were severe.  Dr. Glass felt petitioner was exaggerating her symptoms and concluded that she was at maximal medical improvement.

            Petitioner next applied for personal leave per the employee contract, which allowed for up to 60 days.  She also requested an IME.  Bally’s arranged a consultation  with Dr. Charles Meusburger, M.D.   When petitioner contacted HR she failed to inform Bally’s that she was departing for an extended trip to China to see her parents.  HR tried to reach her but she had already left for China.  She did reach Bally’s at one point and said that her “phone was not working and she was out of the country relaxing.” 

            Petitioner missed the first appointment with Dr. Meusburger but when she returned from China, she rescheduled the exam for June 6 and June 13, 2013.  In the interim Ballys notified her on May 9, 2013 that her employment was terminated for violating the personal leave policy. 

            Dr. Meusburger saw petitioner in June and opined that petitioner suffered from an adjustment disorder with anxiety and depression as well as a panic disorder related to work.  Petitioner filed a claim petition and motion for medical and temporary disability benefits relying on the opinion of Dr. Meusburger. 

            The Judge of Compensation did not conduct a hearing on the motion.  Instead, he reviewed the papers filed by both parties and entered an order against Bally’s to retroactively reinstate temporary disability benefits.  He also ordered that such benefits would continue into the future.  The Judge of Compensation prepared a supplemental opinion stating that he “abided by Dr. Meusburger’s findings that petitioner’s condition, that of post-traumatic stress, was a direct result of her experience on November 10, 2013.”  He did not comment on why he disregarded the opinion of Dr. Glass, nor why he did not require testimony from the medical experts. The Judge also rejected the applicability of the decision inCunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.),certif.. denied. 188 N.J. 492 (2006).

            The Appellate Division recited numerous reasons for its reversal of the Judge of Compensation in this matter. 

            1) The court said that the Judge of Compensation erroneously relied on a statement Dr. Mesuburger made that petitioner’s family physician kept her out of work from March 26, to May 31, 2013.  No such report was ever produced.

            2) When Dr. Glass wrote his report on March 7, 2013 stating petitioner could work, there was no countervailing medical report from any doctor.  The Appellate Division noted, “Rather, the petitioner decided to take an extended vacation out of the country, claiming that leave was ordered by her family physicians.” 

            3) The Court noted that the Judge of Compensation made no causation findings and completely ignored Dr. Glass’s opinion that petitioner could return to work in March.  There was no analysis of why the Judge of Compensation chose to rely on the IME doctor, who saw petitioner twice, over Dr. Glass, who saw petitioner seven times over many months. 

            4) There was no discussion in the Judge of Compensation’s opinion about why the Judge disagreed with Dr. Glass’s view that petitioner was exaggerating her symptoms because she did not want to return to work, nor any discussion about the Judge’s disregard of Dr. Patel’s opinion.

            5) The Court also pointed out that there was no support in the record for the Judge’s conclusion that Dr. Glass “mistakenly sent petitioner back to work.”  Nor did the Judge evaluate the normal neurological reports that showed no objective explanation for petitioner’s symptoms in her chest, arm or hands.

            6) The Judge of Compensation also assumed facts that were not in the record in deciding that there was a traumatic event at work.  The Court observed that the Judge inaccurately described the work event as “a fight broke out at the petitioner’s table while she was dealing cards.”  There was nothing in the record about such a fight.

            7) The Judge also failed to address the issue of petitioner’s choosing to go on an extended vacation to China without clearing the leave with HR.  The Judge of Compensation found petitioner “did not abandon her job.”  Yet he did not mention anything about the trip to China.

            8) Most significantly, the Court concluded that the Judge erred in finding thatCunningham did not apply.  That case says that when an employee is terminated or quits, he or she is not eligible for temporary disability benefits unless the employee can prove he or she would have been working but for the work injury.  In this case, Bally’s argued that petitioner was not entitled to temporary disability benefits because she had been fired and because she never proved she would have been working.  In an unusually blunt comment, the Court said, “We further note the legal conclusion that Cunningham is inapplicable is wrong.”   The Court commented that “[p]etitioner’s voluntary removal from the work force preceded Dr. Meusburger’s medical evaluation diagnosing her as suffering from post-traumatic stress and other disorders.”

            9) Lastly, the Court cited to the Rules of the Division of Workers’ Compensation which require a Judge of Compensation to conduct a hearing and hear testimony from witnesses when a respondent rebuts the allegations of petitioner’s motion for benefits.  In this case, the Appellate Division concluded that petitioner should have produced live testimony, and the Judge of Compensation should not have ruled on the papers alone. 

            This decision can be found at Liu v. Bally’s Casino, A-0737-13T3 (App. Div. July 18, 2014).  Perhaps the most unusual aspect of the decision is the final paragraph: “Reversed and remanded to a different judge of compensation for review, including an evidentiary hearing, in accordance with our opinion.”