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Disability - Workers Compensation Latridis v. Georgeson Shareholders (A-0284-08T3)

Submitted March 17, 2010 - Decided Before Judges Graves and J. N. Harris. On appeal from the Final Agency Decision of Department of Labor, Division of Workers Compensation, Claim Petition No. 2003-23570. Eudoxia Iatridis, appellant pro se. Rotella & Soriano, attorneys for respondent (Gerald D. Rotella, on the brief). PER CURIAM Petitioner Eudoxia Iatridis appeals from a final judgment of the Division of Workers Compensation (Division) denying her claim for permanent disability. We affirm. We need not recount all the extensive details of the numerous court events, examinations, and incidents described in both the testimony and documentary evidence presented during trial. On March 6, 2003, Iatridis sustained an injury when she slipped and fell at the workplace of her employer, Georgeson Shareholders (Georgeson). She was transported to Hackensack University Medical Centers emergency department where she was examined, treated, and discharged that same day. The extent of her injuries as of that date was limited to her right knee only. Subsequently, she began to experience other complications and sought additional medical treatment for headaches, low back pain, neck pain, wrist pain, and ultimately psychological injuries. However, as early as May 29, 2003, Dr. Wayne J. Altman, M.D.s examination noted, "Ms. Iatridis has multiple areas of pain and tenderness, without evidence of objective orthopedic findings. I have nothing further to offer this individual." He fortified his conclusion as follows: "[h]er complaints appear to be simply subjective without any underlying anatomic basis." Several other physicians concurred in this point of view. By mid-July 2003, Iatridis was cleared by a physician to return to work. When she timely failed to return to her job——claiming multiple unresolved injuries that impeded her ability to work——her employment was promptly terminated by Georgeson. In the ensuing proceeding for temporary and permanent disability benefits pursuant to the Workers Compensation Act (Act), N.J.S.A. 34:15-1 to -142, Supervising Judge Beverly Karch characterized Iatridiss claim as "whether just overly dramatic or frankly disingenuous, I am unable to accept her presentation of her problems as accurate and real." After reviewing the direct and indirect medical and other evidence complied from the reports of more than twenty-four physicians, most of who were selected by Iatridis herself, Judge Karch determined that Iatridis "failed to sustain her burden of proving a permanent disability by a preponderance of evidence." Nevertheless, based upon "the only objective proofs before me, namely the x-rays and MRIs," Judge Karch did find "a permanent disability of [fifteen per cent] of the right leg for the residuals of right knee sprain with tear of the posterior medial meniscus." Additionally, Judge Karch held that Iatridiss claimed psychiatric disability was caused not because of an accidental injury arising out of and in the course of employment, but rather by the termination of her employment. The standard for our review of a determination of a judge of compensation is equivalent to that used for the review of a non-jury case. Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997), appeal after remand, 325 N.J. Super. 582 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000). The reviewing court may not substitute its own fact-finding for that of the judge of compensation, even if this court were inclined to do so. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Generally, in a workers compensation case, the standard of review is limited to: whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and, in the case of agency review, with due regard also to the agencys expertise where such expertise is a pertinent factor. [Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-164 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).] Further, we must give deference to a judge of compensations expertise in assessing the disability of an employee, "so long as the findings are supported by articulated reasons grounded in the evidence" in the record. Perez v. Capitol Ornamental Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996) (citing Lewicki v. New Jersey Art Foundry, 88 N.J. 75, 88-90 (1981)); see also Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div.), certif. denied, 146 N.J. 500 (1996). In workers compensation claims, the petitioner bears the burden of proof in establishing his or her disability. Squeo v. Comfort Control Corp., 99 N.J. 588, 599 (1985); Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 283 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995) (citing Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984)). The petitioner also bears the burden of proving that the causation of the alleged disability actually stemmed from the employment. Lindquist v. City of Jersey City Fire Dept, 175 N.J. 244, 278 (2003) ("The absence of any objective medical or scientific evidence establishing a causal link between petitioners place of employment and a claimed occupational disease will usually be fatal to the petitioners workers compensation case."); Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div.), certif. denied, 146 N.J. 500 (1996); Wiggins v. Port Auth. of N.Y. and N.J., 276 N.J. Super. 636, 639 (App. Div. 1994). We routinely defer to the factual findings of a compensation judge provided they are "supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken," Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006), especially considering the judge of compensations "opportunity to evaluate witnesses credibility" and "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [petitioners] compensation claim," Ramos v. M & F Fashions, 154 N.J. 583, 598 (1998), together with the judge’s "expertise in assessing the nature and extent of the disability," Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995). Furthermore, when reviewing a workers compensation decision, we are mindful "that judges of compensation are regarded as experts." Kovach v. GM Corp., New Departure Hyatt Bearings Div., 151 N.J. Super. 546, 549 (App. Div. 1978). Accordingly, we must "defer to the judge of compensations expertise in analyzing medical testimony and abide by the long-standing principle that a judge of compensation is not bound by the conclusional opinions of any one or more, or all of the medical experts." Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999) (quoting Perez, supra, 288 N.J. Super at 367). Based upon our careful review of the evidential materials as a whole, and in light of our limited scope of review, we are satisfied that the judges factual and credibility findings are amply supported by sufficient credible evidence in the record, and therefore we find no basis to disturb them. Sheffield v. Schering Plough Corp., 146 N.J. 442, 461 (1996). Psychological injuries, whether standing alone or in conjunction with physical injuries, are compensable occupational diseases, as recognized in Williams v. W. Elec. Co., 178 N.J. Super. 571, 577 (App. Div.), certif. denied, 87 N.J. 380 (1981). See also Fiore v. Consol. Freightways, 140 N.J. 452, 474 (1995); Saunderlin v. E.I. DuPont Co., 102 N.J. 402, 406-07 (1986); Wernowski v. Contl Can Co., 261 N.J. Super. 269, 273 (App. Div.), certif. denied, 133 N.J. 437 (1993). In Williams, we recognized that the allowance of awards based solely on a "subjective reaction to the work itself" would transform the compensation laws "into a program of general health insurance——clearly not the intent of our Legislature." Williams, supra, 178 N.J. Super. at 582. Instead, we held "[t]here must be objective evidence which, when viewed realistically, carries petitioners burden of proof to demonstrate that the alleged work exposure was to a material degree a contributing factor" of the claimed injury. Id. at 585. These principles over time developed into a test that has been described in the following way: [ T]he working conditions must be stressful, viewed objectively, and the believable evidence must support a finding that the worker reacted to them as stressful. In addition, for a present day claimant to succeed, the objectively stressful working conditions must be "peculiar" to the particular work place, and there must be objective evidence supporting a medical opinion of the resulting psychiatric disability, in addition to the "bare statement of the patient." [Goyden v. State Judiciary, 256 N.J. Super. 438, 445-46 (App. Div. 1991) (citations omitted), affd, 128 N.J. 54 (1992).] In Brunell v. Wildwood Crest Police Dept., 176 N.J. 225 (2003), the Court amplified on the peculiarity aspect of this test, stating: By "characteristic of or peculiar to" is meant conditions that one engaged in that particular employment would view as creating a likely risk of injury. Those conditions must "cause" the disease as a natural incident of either the occupation in general or the place of employment . . . . In other words, there is attached to that job a hazard that distinguishes it from the usual run of occupations. [Id. at 238.] Examples of conditions that have been held to satisfy the peculiarity requirement include: second-hand smoke exposure from a colleague, Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 11, 15 (App. Div.), certif. denied, 162 N.J. 485 (1999); post-traumatic stress disorder developed by a flight attendant upon learning a plane she was scheduled to be on had been hijacked and crashed, Stroka v. United Airlines, 364 N.J. Super. 333, 340 (App. Div. 2003), certif. denied, 179 N.J. 313 (2004); a firefighters exposure to smoke, Lindquist, supra, 175 N.J. at 264; and exposure to aluminum dust in a can manufacturing plant, Wernowski, supra, 261 N.J. Super. at 275-76. In contrast, we have held that receipt of a layoff notice, Cairns v. City of E. Orange, 267 N.J. Super. 395, 401 (App. Div. 1993), and "merited criticism" during an employee performance evaluation, Goyden, supra, 256 N.J. Super. at 451, are not conditions peculiar to the workplace. In Cairns, we adopted as a "satisfactory outline of [the] parameters" of the definition of "arising out of employment" the following statement set forth in Furda v. Scammell China Co., 17 N.J. Super. 339, 347 (Law Div. 1952): An accident arises out of the employment when it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. Moreover, a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment, owing to the special nature of the employment. [Cairns, supra, 267 N.J. Super. at 399.] Nevertheless, we have recognized, in the context of injuries allegedly arising from receipt of a layoff notice, that "[w]hether a layoff notice would satisfy the requirements of the definition of arising out of employment, most likely depends on underlying policy considerations rather than the clear language of the Act." Ibid. (citing Williams, supra, 178 N.J. Super. at 588). We further analyzed Walck v. Johns-Manville Prods. Corp., 56 N.J. 533 (1970), a case in which compensation was denied to an employee who suffered a fatal heart attack allegedly as the result of his feeling insecure about his job and fear that he might ultimately lose it. There, we concluded that the heart attack did not arise from a risk of the employment and that a finding that it was compensable would make employers the insurers against job insecurity. We also discussed Goyden, in which we found no objective evidence of work-related stress sufficient to lead to compensable injury. We concluded from those decisions that the appropriate focus in matters such as layoffs was on whether the precipitating events were "peculiar" to the workplace or "held some essential relation to the work or its nature." Cairns, supra, 267 N.J. Super. at 400-01 (quoting Goyden, supra, 256 N.J. Super. at 458 and Walck, supra, 56 N.J. at 556). We found that neither requirement had been met by the petitioner in Cairns. In doing so, we recognized that "drastic personnel action may in certain circumstances result in adverse mental and even physical consequences." Id. at 401. Nevertheless, we held: [I]n the absence of evidence of a clear legislative intent to require payment of workers compensation benefits for disability caused by varying personalized responses of employees to bona fide personnel decisions that alter an employees work status, we are constrained to conclude that the burden of providing compensation to such employees may not be imposed upon an employer. Even where instances of such harm may be predictable, the stress or trauma caused by such personnel decisions is an ordinary part of life and is not so peculiar to the specific employment as to be deemed to arise out of the employment. [Ibid.] In essence, we found the risk of employment layoff to be so universal and an emotional response to a layoff notice to be so predictable that this particular cause and effect relationship could not have been envisioned to be compensable. Judge Karchs reliance upon Cairns, based upon the facts presented to her and as she found them to be, was entirely appropriate. The other issues raised on appeal do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed.

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

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p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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