S.W. v. PRINCETON UNIVERSITY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3329-04T13329-04T1

S.W.,

Claimant-Respondent,

v.

PRINCETON UNIVERSITY,

Respondent-Appellant.

_________________________________

 

Submitted March 20, 2006 - Decided May 16, 2006

Before Judges Lintner and Parrillo.

On appeal from a Final Determination of the

Department of Labor, Board of Review, Docket

No. BRPP04-0049.

Sankar Suryanarayan, Office of General Counsel for appellant, Princeton University (Hannah S. Ross, on the brief).

S.W., respondent pro se.

PER CURIAM

Appellant, Princeton University (University), appeals from a final administrative determination issued on behalf of the Board of Review (Board), finding claimant, S.W., eligible for temporary disability benefits from March 18, 2004, to November 30, 2004, and ordering appellant to pay these benefits to claimant. We affirm.

The facts are relatively straightforward. Claimant was employed by the University, on a contract basis, for over a five-year period, ultimately terminating on November 28, 2003. In the last three years of his employment, claimant functioned as an analyst in the University Treasurer's Office. His duties, in that capacity, included, among other things, reviewing deeds of gifts to the University, extracting and analyzing information from data bases and preparing spread sheets on the computer.

In November 2003, claimant began experiencing feelings of depression, manifested by insomnia, weight loss, and difficulty in focusing. Commencing November 11, 2003, claimant treated once a week with Wendy Wright, a licensed clinical social worker and psychoanalyst, who found him to be in severe distress, anxious and depressed, and who recommended that he come under the care of a psychiatrist. As a result, on December 9, 2003, less than two weeks after he left the University's employ, claimant consulted with Dr. Senekjian, a psychiatrist, who diagnosed claimant's condition as major depression, generalized anxiety disorder and a panic disorder, and concluded that he was unable to work. Claimant, however, saw Dr. Senekjian for only two more sessions - December 17 and December 23, 2003 - and scheduled no other appointments apparently due to either a fee dispute or dissatisfaction with the level of progress. Dr. Senekjian never certified that claimant was disabled in December 2003.

In any event, claimant continued to see Ms. Wright and on March 18, 2004, he came under the care of another psychiatrist, Dr. Borthwick, who treated claimant until November 14, 2004. On April 15, 2004, Dr. Borthwick completed a medical certificate, certifying that claimant came under his care for "depression, anxiety, panic attacks," and was totally unable to perform his job from December 1, 2003.

On May 23, 2004, five months after his employment contract with the University expired, claimant signed and dated forms in support of a claim for temporary disability benefits. Claimant submitted his claim under the State plan of disability benefits to the Division of Temporary Disability Benefits (Division) in the Department of Labor. The Division, however, re-directed the paperwork to the University, a self-insured employer, because the claim dates of disability - beginning on December 1, 2003 - fell within the two-week period after the end of claimant's employment with the University. See N.J.S.A. 43:21-27.

By letters of September 28, 2004, October 8, 2004, and November 22, 2004, the University denied the claim for temporary disability benefits finding claimant ineligible under the University's private plan because claimant did not file his claim within thirty days of the onset of disability, see N.J.S.A. 43:21-49, and provided no medical evidence that his disability occurred within fourteen days of his last day of work at the University, see N.J.S.A. 43:21-27.

Claimant appealed the University's decision to the Division pursuant to N.J.S.A. 43:21-50. Following a hearing, the Division, on January 28, 2005, determined that claimant was eligible, and the University's self-insured private plan was liable for temporary disability benefits for the period March 18, 2004 to November 30, 2004. On the issue of disability, the Division specifically found:

The claimant has presented specific, convincing and therefore credible testimony, corroborated by Ms. W[right]'s detailed recollections and by the bill from Dr. S[enekjian] dated December 23, 2003, to support the fact that the claimant became totally unable to perform the duties of his employment as a result of a depressive disorder from at least December 9, 2003, which was within 14 days of his last day of work of November 28, 2003. While the employer argued that Ms. W[right] is not a physician and that Dr. S[enekjian]'s certification did not show a disabling condition, the diagnoses given by Dr. S[enekjian] are consistent with Ms. W[right]'s evaluation of the claimant and Dr. B[orthwick]'s subsequent treatment of the claimant. Hence, the claimant must be considered a covered individual for the claiming of benefits under the employer's Private Plan.

. . . .

As the claimant was under medical care and totally disabled from March 18, 2004 to December 1, 2004, the claimant met the eligibility requirements during that period. The claimant is entitled to Temporary Disability Benefits under the employer's Private Plan No. 38879 from March 18, 2004 through November 30, 2004, subject to the exhaustion of benefits.

The Division also excused claimant's delay in filing his claim, finding specifically:

From December 1, 2003 until December 1, 2004, the claimant did not feel able to work. He was anxious and depressed, with suicidal thoughts. The claimant followed Dr. B[orthwick]'s prescribed medication, but found some side effects, requiring adjustments. The claimant experienced panic attacks, fatigue, insomnia, disorientation, and confusion. His delay in filing a disability claim was due to his lack of knowledge and due to the emotional problems he was experiencing. He consulted with Dr. B[orthwick] and Ms. W[right] on a regular basis.

. . . .

Due to the claimant's medical problems, his confusion about disability benefits was understandable. The claimant filed the claim as soon as reasonably possible.

On appeal, the University raises the following issues:

I. CLAIMANT DID NOT PROVIDE NOTICE OF HIS CLAIM "AS SOON AS REASONABLY POSSIBLE."

A. Claimant Had the Assistance of His Wife Yet Did Not File the Forms for Nine months.

B. Claimant Traveled Out-of-State on Family Business During the Period of Claimed Disability.

II. CLAIMANT IS NOT A COVERED INDIVIDUAL BECAUSE THERE IS NOT COMPETENT MEDICAL EVIDENCE OF TOTAL DISABILITY WITHIN FOURTEEN DAYS OF TERMINATION OF EMPLOYMENT.

A. The Diagnosis Codes Noted on the Invoice from Dr. Senekjian Are Not Competent Medical Evidence of Disability and Reliance on such Codes Circumvents the Plain Language of the Statute Requiring Health Care Providers to Certify Disability.

B. The Testimony of Social Worker Wright Is Not Competent Medical Evidence and Reliance on such Testimony Contravenes the Statutory Limitation that Only Certain Health Care Professionals Are Authorized to Certify Disability.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and respondent pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) & (E). We affirm substantially for the reasons stated in the final administrative decision of January 14, 2005. We add only the following comments.

Our scope of review of an agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of correctness. Gloucester County Welfare Bd. v. State of N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). We also "accord substantial deference to the interpretation given to a statute by the agency charged with enforcing that statute." Bd. of Educ. of Tp. of Neptune v. Neptune Tp. Educ. Ass'n., 144 N.J. 16, 31 (1996). We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County Welfare Bd., supra, 93 N.J. at 391; Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).

Applying these principles, we are in accord with the administrative decision granting claimant benefits. The governing statute, N.J.S.A. 43:21-27, provides that temporary disability benefits are available to any "covered individual," defined as "any person who is in employment . . . for which he is entitled to remuneration from a covered employer, or who has been out of such employment for less than two weeks." N.J.S.A. 43:21-27(b). To establish eligibility as a "covered individual" under both the statute and the University's private plan, a claimant must have become disabled within two weeks of the termination of his employment. A compensable "disability," in turn, is one suffered in "any accident or sickness not arising out of and in the course of the individual's employment . . . resulting in the individual's total inability to perform the duties of employment." N.J.S.A. 43:21-29. The period of disability is "the entire period of time during which the individual is continuously and totally unable to perform the duties of his employment . . . .", N.J.S.A. 43:21-27(g), but excludes "any period during which the claimant is not under the care of a legally licensed physician, dentist, optometrist, podiatrist, practicing psychologist, advanced practice nurse, or chiropractor . . . ." N.J.S.A. 43:21-39(d). For a claimant to qualify, the medical professional, at the Division's request, must certify "the disability of the claimant, the probable duration thereof, and, where applicable, the medical facts within the practitioner's knowledge . . . ." Ibid. Consistent with the statutory requirement, the University's private plan requires a medical certificate stating that the "[d]isability is based on: 1) patient's inability to perform the essential functions of his/her job; 2) diagnosis."

The certification requirement was satisfied in this case. Claimant's treating psychiatrist, Dr. Borthwick, certified that claimant was under his care from March 18, 2004, for "depression, anxiety panic attacks" and that claimant was totally unable to perform his job from December 1, 2003. Dr. Borthwick's diagnoses were consistent with those of Dr. Senekjian which, in turn, and as noted in the administrative determination, conformed with Wright's evaluation as well as with claimant's subjective complaints. Contrary to the University's contention on appeal, the administrative determination of disability was not based exclusively on Wright's evaluation or Dr. Senekjian's diagnostic codes - neither of which would have sufficed to meet the statutory requirement - but rather on Dr. Borthwick's certification, corroborated by this other evidence. Thus, we are satisfied that the decision finding claimant eligible for temporary disability benefits was "supported by substantial credible evidence in the record as a whole." Barry, supra, 100 N.J. at 71. We discern no basis to disturb the administrative determination.

We find likewise as to the decision excusing claimant's filing delay. A claimant is required to file a claim for disability benefits within "30 days after the commencement of the period of disability . . . ." N.J.S.A. 43:21-49(a)(2). The University's private plan also incorporates this notice requirement. However, failure to timely file is not per se disqualifying. The statutory requirement may be relaxed in certain circumstances. Thus, N.J.S.A. 43:21-49 provides:

Failure to furnish notice and proof within the time or in the manner above provided shall not invalidate or reduce any claim if it shall be shown . . . not to have been reasonably possible to furnish such notice and proof and that such notice and proof was furnished as soon as reasonably possible.

[N.J.S.A. 43:21-49(a)(2).]

"[T]he statutorily prescribed filing period is[,] [therefore,] subject to tolling or extension for reasons grounded in equitable considerations . . . ." Mazzarella v. Bd. of Review, 172 N.J. Super. 459, 462-63 (App. Div. 1980). Indeed, the tolling standard of "reasonably possible" was not intended by the Legislature to refer only to physical capacity to make a claim, i.e., a medical impossibility, but rather was intended to encompass as well the general equitable concept of good cause for the filing delay. Id. at 463. The standard then encompasses the "totality of relevant factors." Id. at 464.

Here, the administrative tribunal concluded: "[d]ue to the claimant's medical problems, his confusion about disability benefits was understandable. The claimant filed the claim as soon as reasonably possible." Thus, any neglect or culpability on claimant's part was deemed excused by the external forces at play, including confusion over the applicable benefits plan, the failure of Dr. Senekjian to complete the forms timely provided to her, and claimant's overall mental health condition. Especially given the remedial nature of the Temporary Disability Benefits Law, Mazzarella, supra, 172 N.J. Super. at 464, we perceive no reason, under present circumstances, to interfere with the administrative determination that claimant acted reasonably and diligently.

Affirmed.

 

The Division also found claimant ineligible for temporary disability benefits under the employer's private plan from December 1, 2003 to March 17, 2004, in accordance with N.J.S.A. 43:21-39(d), because, although disabled, he was not under the care of a physician who could certify to claimant's condition until March 18, 2004.

(continued)

(continued)

11

A-3329-04T1

May 16, 2006