LORI ROSS v. CITY OF ASBURY PARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0379-08T30379-08T3

A-2174-08T3

LORI ROSS,

Petitioner-Respondent,

v.

CITY OF ASBURY PARK,

Respondent-Appellant.

___________________________________________________

 

Argued November 5, 2009 - Decided

Before Judges Axelrad, Fisher and

Sapp-Peterson.

On appeal from the New Jersey Department of Labor, Division of Workers Compensation, CP No. 2006-28659.

Thomas W. Polaski argued the cause for appellant (Coronato, Brady & Kunz, attor-neys; Thomas E. Kunz, of counsel; Mr. Polaski, of counsel and on the brief).

Danielle S. Chandonnet argued the cause for respondent (Shebell & Shebell, attorneys; Raymond P. Shebell, of counsel; Ms. Chan-donnet, on the brief).

PER CURIAM

After a trial, the workers' compensation judge found that petitioner-employee Lori Ross (petitioner) had suffered compensable mental stress as a result of prolonged exposure to a hostile work environment. We affirm because the judge was entitled to conclude from her findings, which were supported by credible evidence, that petitioner was subjected to objectively stressful working conditions.

We need not recount all the details of the numerous incidents described in the testimony presented during trial. According to testimony the judge credited, petitioner was hired by respondent City of Asbury Park in late 1998. Before long she was repeatedly asked, at least two or three times a week, to assist the city manager at the time, Wilbur Russell. This was necessary due to the fact that Russell's secretary, Cassandra Dickerson, was frequently absent. The city manager's requests for assistance were made directly to petitioner; this bypassed petitioner's supervisor and created an atmosphere of resentment.

On one occasion when petitioner was assisting, Russell reprimanded Dickerson for arriving at work on Monday "in Friday night clothes" and questioned why Dickerson did not dress like petitioner. This indirect commendation of petitioner's professionalism generated problems between petitioner and Dickerson, resulting in a smear campaign directed at petitioner. This campaign took on sexual overtones and included the circulating and posting of a pornographic cartoon referring to petitioner and assistant city manager, James Famularo. When petitioner brought the cartoon to Famularo, he acknowledged it was inappropriate and ripped it up, but took no other action. Petitioner testified that she approached Dickerson about the cartoon and Dickerson acknowledged responsibility. This admission was made in the presence of Famularo, but still no disciplinary action was taken.

Petitioner also testified to the circulation of a rumor in the City's offices that petitioner had a sexual relationship with other coworkers while attending a League of Municipalities conference in Atlantic City in November 2005. Dickerson spoke loudly of this false rumor in order to widely disseminate it in the City's offices. The assistant city manager discussed the rumor with petitioner, but proposed no solution. Instead, the assistant city manager only denied his personal involvement in spreading the false rumor and placed blame on another employee.

Indeed, rather than remedy this chronic problem, Terry Weldon, who served as city manager for a while, attempted to have petitioner laid off from her job based on erroneous information. On another occasion, a false rumor was spread that petitioner was resigning.

Petitioner asserted that all these events evoked in her feelings of humiliation, shock and anger, and caused her to lose sleep. Ultimately, as a result of the failure of the city managers to address the problems or alter the hostile atmosphere, petitioner eventually retained counsel.

During trial, the judge was provided with a report of a psychiatrist that diagnosed petitioner with "Adjustment Disorder with Mixed Anxiety and Depressed Mood." The psychiatrist described this as "a development of significant emotional and behavioral symptoms in response to identifiable psychosocial stressor or stressors," which were related to "an unhealthy work environment." The psychiatrist also opined that the adjustment disorder "is gradually transforming itself into a Depressive Disorder, NOS, and Anxiety Disorder, NOS," and that petitioner was "in urgent need" of treatment.

In finding in petitioner's favor, Judge Leslie A. Berich applied correct legal standards. The Workers' Compensation Act is "humane social legislation designed to place the cost of work connected injury upon the employer who may readily provide for it as an operating expense." Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 586 (1959). Among other things, the Act permits recovery for "all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." N.J.S.A. 34:15-31. Psychic 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. Cont'l Can Co., 261 N.J. Super. 269, 273 (App. Div.), certif. denied, 133 N.J. 437 (1993).

Williams 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." 178 N.J. Super. at 582. Instead, Williams held "[t]here must be objective evidence which, when viewed realistically, carries petitioner's burden of proof to demonstrate that the alleged work exposure was to a material degree a contributing factor." 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 evi-dence 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 re-sulting 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), aff'd, 128 N.J. 54 (1992).]

In Brunell v. Wildwood Crest Police Dept., 176 N.J. 225, 238 (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.

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 was hijacked and crashed, Stroka v. United Airlines, 364 N.J. Super. 333, 340 (App. Div. 2003), certif. denied, 179 N.J. 313 (2004); a firefighter's exposure to smoke, Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 264 (2003); 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 East Orange, 267 N.J. Super. 395, 401 (App. Div. 1993), and "merited criticism" during an evaluation, Goyden, supra, 256 N.J. Super. at 451, are not conditions peculiar to the workplace.

Whether the test described in these cases has been met requires a careful analysis of the facts. Here, Judge Berich provided a comprehensive and thoughtful oral decision in which she accurately described the applicable legal principles and the facts she found credible. The judge found petitioner to be credible, describing her testimony as having been presented in a "straightforward" manner; what petitioner said, according to the judge, "seemed reasonable, consistent and logical."

The judge recounted the events she found to have occurred, including the supervisor's resentment about petitioner being repeatedly called to the city manager's office, the obscene cartoon flier, and the City's failure to alleviate the poisonous work environment. The judge concluded that in light of the "numerous events, some of which are sexually suggestive, the length of time over which these events occurred, and the threat of loss of employment to [p]etitioner, . . . [p]etitioner's working conditions were objectively stressful." In describing how these circumstances were peculiar to the workplace, Judge Berich held:

[t]he aforementioned events cannot be characterized as an honest attempt to ensure that an office is running in an efficient and effective manner. Here, [p]etitioner was subjected, in part, to a resignation rumor, a potentially improper layoff, together with the aforementioned . . . sexual propaganda . . . . [I]t shocks the conscience that same would have occurred over such a long period of time without otherwise being addressed by the employer.

The judge analyzed the psychiatric evidence and concluded that petitioner's exposure to this hostile work environment, which management made no attempt to correct, had brought on petitioner's condition.

These findings fully rest on evidence Judge Berich was entitled to credit and are therefore entitled to our deference. See Tlumac v. High Bridge Stone, 187 N.J. 567, 573-74 (2006); Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965). In light of those factual findings, the judge was empowered to conclude that petitioner provided ample proof of all the elements required by Goyden and the other cases cited in making an award in petitioner's favor.

Affirmed.

 

Famularo testified he did not remember the cartoon but once his recollection was refreshed he indicated he vaguely remembered and thought the cartoon was "funny."

The City also appealed the judge's denial of a motion for a stay. In light of our disposition of the chief appeal, the second appeal of the order denying a stay has been rendered moot.

(continued)

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A-0379-08T3

November 23, 2009