Claims

Euliet Smith worked for Home Instead Senior Care as a caregiver for an elderly woman. Smith said she cooked, cleaned, bathed and dressed the woman and was on duty 24 hours per day, seven days a week with every other weekend off. She said it was the most stressful job she ever had. (more…)

In one of the most important decisions since the 1979 amendments, the Appellate Division reversed in Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div.), certif. denied, 146 N.J. 500 (1996) an award of 35% permanent partial disability for a Jersey City police officer who testified that his breathing was worsened by constant exposure to dusts, fumes, chemicals, and other irritants. Every adjuster and practitioner should keep this case in his or her desk because the Appellate Division, in throwing out the award, spelled out what it means by the phrase “characteristic of or peculiar to a particular trade or occupation.”

The Laffey case is also interesting because the appellate court reiterated the need for scientific proof. The court was not impressed with guesswork from a medical standpoint. Rather, it wanted the claimant to prove that his exposure as a police officer was indeed higher than the degree of exposure to dusts or fumes of any other person living in Jersey City. This idea most closely tracks the idea that Professor Larson gives when he says that there is a difference between diseases that are common to people in every day life and those that are peculiar to the employment. The petitioner in Laffey could not show scientifically that his exposure was any greater than that of others. The court said:

Here, petitioner has done no more than offer subjective characterization about his work environment. He has failed to provide quantitative evidence concerning the level of pollution, or the duration of exposure in any measurable manner. There was no evidence of any articles, treatises or medical studies that link exposure to fumes from vehicles, furnaces, landfills or fires to petitioner’s ailments. Petitioner’s expert’s testimony of a causal relationship was based solely on the subjective characterization of the petitioner and not on any existing medical epidemiological or scientific studies establishing causation.

Id. at 306. The court added:

We are satisfied that Dr. Velez has asserted a causal relationship without credible foundation. Furthermore, petitioner presented no scientific evidence that police officers as a class, or even Jersey City police officers as a sub-class, are more particularly prone to exposure to the environment than any other resident or employee of Jersey City.

Id. at 307.

More than any other factor, medical science determines the outcome in occupational disease claims. Employers need to be aware of the not-so-bright line which the Appellate Division is drawing between cases which utterly fail to meet the standards of Section 31 and those which just barely meet the standards. Subtle differences in the quality of scientific proof can turn a case which would fail under Laffey, supra, into a compensable claim. For example, in Kiczula v. American Nat’l Can Co., 310 N.J. Super. 293 (App. Div. 1998), even though the claimant’s expert could not cite the cause of a severe pulmonary condition known as “Wegener’s granulomatosis,” the Appellate Division nevertheless affirmed an award of 50% permanent partial disability to the claimant who alleged that fumes from solder and from solvents aggravated and accelerated her breathing problem. The Appellate Division held that claimant’s expert listed specific pollutants to which petitioner was exposed, discussed the duration of exposures, and evaluated a medical article which theorizes that Wegener’s granulomatosis is a kind of hypersensitivity disorder and states that many researchers consider it to be “aggravated by inhalation of an environmental agent or agents.” Id. at 303. The court contrasted this evidence with that in Laffey, supra, in which the claimant only identified generally “dust, fumes and pulmonary irritants” and failed to offer any scientific evidence at all.

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When an employee’s worrying is not based on events which actually took place involving the employee but only on what might have happened to the employee, that kind of worrying has been found not compensable. An example is the case of Stroka v. United Airlines, 364 N.J. Super. 333 (App. Div. 2003), certif. denied, 179 N.J. 313 (2004). Kim Stroka worked as a flight attendant for United Airlines. Stroka was originally scheduled to work on September 11, 2001, but she requested the day off several days earlier to pick up her daughter from school.

On September 11, 2001, she went bowling while her daughter was in school. She heard about the World Trade Center attacks while she was bowling. Later her husband, who was also a flight attendant and was working that day, called Stroka to advise her that the plane which crashed in Pennsylvania was the one she was supposed to be flying. Petitioner wept, trembled, and had difficulty sleeping over the next few days. She could not eat for a while, but later she engaged in binge eating.

Petitioner began psychiatric treatment on September 24, 2001 with Dr. Stephen Clarfield for post-traumatic stress syndrome. She told her doctor that she felt guilty that she was alive, while someone else in her place had been killed.

Petitioner did not return to work and continued to treat on a biweekly basis. She filed a claim petition seeking medical and temporary disability benefits. Petitioner testified that her company provided her with training regarding hijackings. Flight attendants viewed a security video and read a Federal Aviation Administration handbook on how to deal with a hijacking crisis.

The judge of compensation found that the petitioner’s stress condition was work-related and awarded medical and temporary disability benefits to the petitioner. As of the time of trial, petitioner was still fearful and was having panic attacks when she would see a runway.

United appealed the decision and argued that petitioner’s psychiatric condition did not arise from work. The Appellate Division agreed:

Petitioner’s post-traumatic stress syndrome originated not while she was at work, but while she was taking a day off. Nothing happened while she was working which led to her current condition. She was not working at the time Flight 93 crashed, nor at the time she heard the news of the crash. In fact, her reaction to the event occurred because she was not working, not because she was working. If we were to accept petitioner’s argument, off-duty police officers, firefighters, and others whose jobs are inherently risky could seek compensation benefits when a fellow employee was injured or killed while taking that employee’s place. No authority exists to support that position.

Id. at 342.

This case is an important one because it delineates a line between compensable occupational stress and non-compensable occupational stress. It is a sensible decision because an employer could not possibly insure for risks of injuries occurring in the minds of workers who were not actually working when traumatic events took place.

The most important occupational stress psychiatric opinion is Goyden v. State Judiciary, 256 N.J. Super. 438 (App. Div. 1991), aff’d, 128 N.J. 54 (1992). Goyden was the first significant post-1980 case construing Section 31. It involved a claim by the supervisor of records in the office of the Clerk of the Supreme Court, who was adjudged at trial in the Division of Workers’ Compensation totally and permanently disabled due to severe depression. Petitioner alleged that conditions at work, including extreme backlog in filing court documents, a change in filing procedures to computers, and vindictive managerial procedures, led to his depression.

The appellate court in Goyden reversed the award of 100% total and permanent disability. First, it negated the petitioner’s allegation of vindictive management procedures, finding a basis for the job evaluations of the petitioner. “Merited criticism cannot fairly be considered to be a ‘cause… and condition… characteristic of or peculiar to a particular trade, occupation, process of place of employment.’” The court went on to say that merited criticism is common to all occupations. This is exactly the analysis of Section 31 that Professor Larson referred to above.

The court then proceeded to find that there was ample evidence in the psychiatric testimony that petitioner had a compulsive personality, which stemmed from his childhood and tied his self-esteem to his job. This underlying compulsive personality condition created the stress petitioner felt on his job and would have done so regardless of “peculiar” workplace conditions. “The existence of such a predisposition precludes compensability not otherwise supported by evidence of ‘peculiar’ conditions which would be stressful to those without such a predisposition,” Goyden at p.459, citing Williams v. Western Electric, 178 N.J. Super. 571, 582 (App. Div.), certif. denied, 87 N.J. 380 (1981).

The court next discussed the purpose of the 1979 Amendments with respect to Section 31.

This definition of ‘compensable occupational disease’ was part of the 1979 legislative amendments which narrowed eligibility for workers’ compensation. Previously, compensation was permitted for all occupational disease arising out of and in the course of employment, not just that ‘peculiar’ to the employment. The purpose of these 1979 amendments was to ‘benefit employers’ and to limit compensation for occupational disease to those which are characteristic of and peculiar to a particular employment.’

Goyden, at p. 443. The test now in occupational psychiatric claims is much more clear and also much more burdensome on claimants. The claimant must prove as follows:

1. Objectively verified stressful work conditions (This will require more than just the testimony of the claimant, as the Williams court noted at p.585).
2. Work conditions peculiar to the workplace (not just common to everyone).
3. Medical evidence showing that these work conditions were the material cause of the psychiatric disability. This is particularly problematic where the worker already has a prior psychiatric problem. If such a preexisting psychiatric problem exists the claimant will have to prove that a person without that preexisting psychiatric condition would have reacted in the same manner to the work stress as the claimant did. Goyden at p.459.

Goyden deals more thoroughly with occupational psychiatric claims than any case before or since its decision. While the standards may seem somewhat confusing, the Goyden case sweeps aside a large portion of psychiatric claims just by stating that merited criticism cannot form the basis of a workers’ compensation claim. Many occupational psychiatric claims emanate from the reaction of an employee to some sort of legitimate work criticism. It is also clear from Cairns v. City of East Orange, 267 N.J. Super. 395 (App. Div. 1993) that a psychiatric reaction to the receipt of a layoff notice is not compensable. The reasoning behind Cairns is that worry over losing one’s job is common to everyone in all occupations. See also Iatridis v. Georgeson Shareholders, No. A-0284-08T3 (App. Div. March 31, 2010). The court said that stress caused from personnel decisions that occur at work is an ordinary part of life and not peculiar to any place of employment.

Goyden and Cairns have little applicability where a traumatic event leads to psychiatric problems, as in Prettyman v. State, 298 N.J. Super. 580 (App. Div. 1997). In that case, detectives wrongly accused petitioner of stealing a key to the receptionist’s desk. A bracelet was allegedly lost from a desk, which petitioner had checked, not knowing she was on film. Petitioner was looking for a key, but the detectives thought she was trying to steal the bracelet. The Appellate Division said, “… Even if the detectives’ actions were legitimate law enforcement techniques, the fact that their actions caused petitioner’s psychiatric disability is sufficient for an award of benefits. …” Id. at 597.