CYNTHIA MILLAR v. DARREN J. DEL SARDO ESQ.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4388-10T1

CYNTHIA MILLAR,

Plaintiff-Appellant,

v.

DARREN J. DEL SARDO, ESQ., and

DAMICO, DEL SARDO & MONTANARI, LLC,

Defendants-Respondents.

________________________________________

April 27, 2012

 

Submitted March 5, 2012 - Decided

 

Before Judges Parrillo, Grall and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1553-07.

 

McKenna McIlwain, LLP, attorneys for appellant (Keith A. McKenna, of counsel and on the brief).

 

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, attorneys for respondents (Thomas F. Quinn, of counsel and on the brief; John P. O'Toole, on the brief).

PER CURIAM

This is an appeal from a grant of summary judgment to the defendants in a legal malpractice case. We affirm.

Plaintiff Cynthia Millar retained defendant Darren J. Del Sardo and his firm1 to file an action against her former employer Cablevision Systems Corp. Cablevision terminated her employment when she was unable to return to work and had exhausted all of her leave. She retained defendant just under two years after her termination.

Defendant filed a complaint against Cablevision on plaintiff's behalf asserting various claims relating to sexual harassment. Cablevision and plaintiff eventually settled that case, but prior to that settlement plaintiff retained new counsel and filed a compliant charging defendant with legal malpractice based on his failure to take additional action on her behalf. Pertinent here, she alleged that defendant failed to pursue a claim for workers' compensation and should have included counts in her complaint against Cablevision alleging wrongful, retaliatory termination and failure to accommodate her disability.

On defendant's motion, the court granted summary judgment on all allegations other than defendant's omission of a claim that Cablevision discharged plaintiff in retaliation for seeking workers' compensation benefits. On cross-motions for reconsideration, the judge dismissed that claim as well. The court determined that plaintiff could not establish professional error because the workers' compensation claim and the claim for failure to accommodate were time-barred before plaintiff retained defendant. Further, as to the remaining claims allegedly omitted, the court found plaintiff could not establish damages, as she was already disabled at the time of her termination. For those reasons, we agree that defendant was entitled to judgment as a matter of law.

I.

Plaintiff, who is now fifty years old, began working for Cablevision in 1997 as an account executive. In that capacity, plaintiff marketed and sold air time for television commercials.

In February 1999, plaintiff was diagnosed with Epstein-Barr virus, a condition characterized by symptoms such as fatigue, fever, weakness, swollen lymph nodes, pain in the joints and muscles, and throat soreness. In the same year, plaintiff was also diagnosed with Chronic Fatigue Syndrome and fibromyalgia. As a result of her diagnoses, plaintiff missed considerable time from work. Cablevision approved her request for medical leave from April 20, 2001 through July 12, 2001. Immediately following this leave, plaintiff began a subsequent leave under Cablevision's Non-Family/Medical Leave policy that extended her leave time through October 4, 2001.

Plaintiff began treatment for symptoms of stress and depression with Dr. Cheryl Kleefeld, a psychologist, on April 14, 2001. Plaintiff had been referred to her by plaintiff's physician, Dr. Marco Tartaglia, for symptoms of fatigue, malaise, and depression. Dr. Kleefeld initially diagnosed plaintiff with mood disorder due to Chronic Fatigue Syndrome, with depressive features; fibromyalgia; and "[o]verwork, stressors from work situation." In addition, Dr. Kleefeld noted, "[u]nfortunately, there have been ongoing stressors from work even when she is not there . . . . Ongoing stressors appear to have interfered with proper rest and treatment."

After her return to work in October 2001, plaintiff was subjected to inappropriate and sexually harassing behavior by one of her superiors. In July 2002, one of plaintiff's co-employees contacted the Human Resources Department at Cablevision and reported that plaintiff had been the subject of workplace harassment. Following this report, plaintiff claimed she was retaliated against, and that Cablevision was no longer willing to accommodate her physical ailments. For the balance of 2002 and into 2003, plaintiff had continuing health issues, requiring additional leaves of absence.

Even after plaintiff's extended absences, she continued to suffer from medical problems. The last leave of absence Cablevision granted plaintiff was from February 19, 2003 to April 16, 2003. Once this leave began, Dr. Kleefeld noted in a report: "As a psychologist and stress/pain/illness management specialist, I attributed much of her relapse to the stress she was experiencing at work." Plaintiff returned to work on April 17, 2003. Shortly after she returned, plaintiff missed an additional two weeks of work due to more health issues and the death of her father.

On May 23, 2003, plaintiff claims she slipped on a wet floor in a bathroom at work and suffered an injury to her leg. In addition, she complained of chest pains and stated that she was having a "nervous breakdown." As a result, plaintiff was taken by ambulance to the emergency room. Plaintiff never returned to work after this date.

By letter dated May 30, 2003, Cablevision informed plaintiff that all her available leave time had been fully expended, and requested additional medical information from her. Dr. Tartaglia responded by letter to Cablevision's request, indicating that plaintiff required further leave due to a "relapse of previous [Epstein-Barr virus] symptoms following the remission of fatigue symptoms."

On June 10, 2003, plaintiff completed an application for state-administered temporary disability benefits. Under the application heading, "Describe your disability (How, when, where it happened)," plaintiff wrote: "Working overtime, 4/17/03 5/23/03 . . . returned to work with medical restrictions company did not respect them[,] sent to hospital in ambulance from work on 5/23/03." Significantly, plaintiff indicated that her claimed disability was caused by her job. Dr. Tartaglia, who completed a portion of the application, also indicated that plaintiff's disability was "[d]ue to a condition which developed because of the nature of [her] work."

In a report dated June 11, 2003 directed to Cablevision's independent medical examiner, Dr. Kleefeld stated:

[B]y Ms. Millar's account, the work environment has become even more punitive and threatening. She has been under more stress at work than ever before . . . .

 

It would be impossible for anybody to recover from illness in the present work environment as Ms. Millar is experiencing it. Ms. Millar has developed even deepening symptoms, including the following new symptoms: heart palpitations and pains, very severe anxiety, and vertigo.

 

On June 24, 2003, plaintiff submitted a workers' compensation Employer's First Report of Injury Form, indicating an injury date of May 23, 2003. Plaintiff described her injury as "mental stress" caused by "working over-time." She listed the body part affected as "chest pains and shortness of breath."

Ultimately, plaintiff was informed, by letter dated July 3, 2003, that her employment with Cablevision was being terminated. That letter stated:

Since your physician has determined that you are unable to safely and satisfactorily perform the essential functions of your job, at this time or in the near future, our business needs require us to fill your position at this time. Accordingly, your last day of employment with the Company is July 3, 2003.

 

During the ensuing months, Dr. Tartaglia submitted medical reports to Cablevision's workers' compensation carrier in support of her claim. Notwithstanding these reports, the carrier notified plaintiff, by letter dated November 5, 2003, that it was denying her claim for benefits, based on its conclusion that plaintiff's condition was not causally related to her employment. Despite this notification, plaintiff failed to take any action to formally file a claim petition for workers' compensation benefits within two years of May 23, 2003.

On June 23, 2005, plaintiff first met with defendant in connection with her potential claims against Cablevision, and retained him shortly thereafter. Approximately one week after being retained by plaintiff, defendant prepared and filed a complaint against Cablevision, asserting various claims relating to sexual harassment. The complaint did not assert any claims relating to retaliation for seeking workers' compensation benefits or failure to accommodate plaintiff's disability.

In February 2006, Dr. Kleefeld sent a letter to defendant stating that she had diagnosed plaintiff with Post Traumatic Stress Disorder (PTSD). The letter did not indicate the exact date of the initial diagnosis but stated, however, that plaintiff's PTSD symptoms "[began] to appear in 2003."

Significantly, on June 17, 2009, plaintiff was approved by the Social Security Administration for monthly disability benefits. The letter stated that for purposes of Social Security Disability benefits, plaintiff became totally disabled on May 23, 2003.

II.

On appeal, plaintiff makes the following arguments:

I. THE TRIAL COURT ERRED IN DISMISSING THE LEGAL MALPRACTICE ACTION BY MISAPPLYING STATUTE OF LIMITATIONS TO UNDERLYING CLAIM.

 

II. THE TRIAL COURT IMPROPERLY SERVED AS A FACT FINDER AND EXPERT- IGNORING THE ONLY EXPERT OPINIONS THAT CONCLUDED THAT PTSD WAS DIAGNOSED WITHIN THE STATUTE OF LIMITATIONS.

 

III. THE TRIAL COURT ERRED IN DISMISSING THE LEGAL MALPRACTICE CLAIM BASED UPON THE RESPONDENT'S FAILURE TO PLEAD A CLAIM FOR RETALIATORY DISCHARGE IN THE UNDERLYING ACTION.

 

IV. THE TRIAL COURT MISAPPLIED THE SUMMARY JUDGMENT STANDARD.

 

V. THE TRIAL COURT MISAPPLIED THE RECONSIDERATION STANDARD.

 

III.

 

A. Standard of Review for Grant of Summary Judgment in a Legal Malpractice Case

 

"In legal malpractice cases, as in other cases, summary disposition is appropriate only when there is no genuine dispute of material fact." Ziegelheim v. Apollo, 128 N.J. 250, 261 (1992). On appeal, a motion for summary judgment is reviewed de novo under the same legal standard applied by the trial court, and the inquiry should focus on "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Attorneys owe a duty to their clients to provide their services with reasonable knowledge, skill, and diligence. St. Pius X House of Retreats v. Diocese of Camden, 88 N.J. 571, 588 (1982). The Supreme Court has consistently recited that command in broad terms, for lawyers' duties in specific cases vary with the circumstances. Ziegelheim, supra, 128 N.J. at 260. Accordingly, "[w]hat constitutes a reasonable degree of care is not to be considered in a vacuum but with reference to the type of service the attorney undertakes to perform." St. Pius, supra, 88 N.J. at 588.

Included within this duty is the obligation to take "any steps reasonably necessary in the proper handling of the case." Passanante v. Yormark, 138 N.J. Super. 233, 239 (App. Div. 1975), certif. denied, 70 N.J. 144 (1976). Those steps will include, among other things, a careful investigation of the facts of the matter, the formulation of a legal strategy, the filing of appropriate papers, and the maintenance of communication with the client. Id. at 238-39.

To present a prima facie legal malpractice claim, a plaintiff must establish the following elements: "(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff." Jerista v. Murray, 185 N.J. 175, 190-91 (2005) (internal quotation omitted). In the context of a failure to assert a claim in an underlying action, a breach of duty is established by showing an ability to prevail on the unasserted claim. Id. at 191. The "ultimate issue in the legal malpractice action is whether the defendant-lawyers' decision to omit [a claim or party] was a reasonable exercise of professional judgment." Prince v. Garruto, Galex & Cantor, 346 N.J. Super. 180, 189 (App. Div. 2001). The proximate causation prong is satisfied when the attorney's negligent conduct is a substantial contributing factor in causing the client's loss. Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983).

B. Plaintiff's Claim Based on Failure to File a Workers' Compensation Claim

Plaintiff's legal malpractice claim depends, in part, on defendant's failure to assert a claim under the Workers' Compensation Act. The merits of this aspect of her legal malpractice claim depends on whether that claim was already time-barred at the time of her initial meeting with defendant, on June 23, 2005. Were the claim in fact time-barred, then defendant's failure to file such a claim in the course of his representation of plaintiff could not be deemed "unreasonable." Accordingly, a brief discussion of the applicable law is appropriate.

Pursuant to the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, a statutory remedy is available to an employee who suffers an injury "arising out of and in the course of employment" either by accident, N.J.S.A. 34:15-7, or by contracting a "compensable occupational disease," N.J.S.A. 34:15-34. Arguably, both are at issue here. N.J.S.A. 34:15-31 defines "compensable occupational disease" as "includ[ing] all diseases arising out of and in the course of employment, which [is] 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." In other words, the disease "must be due in some realistic sense . . . to a risk reasonably incidental to the employment." Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 238 (2003) (internal quotation omitted). Plaintiff's claim for compensation based on conditions attributable to work-related stress is of that nature. The record establishes that she was aware of the link between the conditions and the stress as early as 2001, and certainly by May 2003. By the time she consulted defendant, more than two years had passed.

An "accident" as used in the workers' compensation context, is "an unlooked for mishap or an untoward event which is not expected or designed." Klein v. New York Times Co., 317 N.J. Super. 41, 44 (App. Div. 1998). To be an accident, there must be an "unintended or unexpected occurrence which produces hurt or loss." Brunell, supra, 176 N.J. at 236-37 (internal quotation and emphasis omitted). Plaintiff's slip and fall is a claim of accident.

In the accidental injury context, a claim petition must be filed within two years after the date on which the traumatic accident occurred. N.J.S.A. 34:15-51; Brunell, supra, 176 N.J. at 250. In the occupational injury context, a claim petition must be filed within two years from the date that the injured person knew the nature of the medical condition and its relation to the person's employment. N.J.S.A. 34:15-34. Plaintiff's accident occurred on May 23, 2003, which obviously is more than two years before her first meeting with defendant.

Notwithstanding these two categories, and their corresponding statute of limitation rules, the New Jersey Supreme Court in Brunell recognized that certain types of work-related claims could have "accidental" origins, but are more analogous to "occupational disease" claims in terms of their latency and the failure of the worker to become aware of a compensable injury. As such, the Court created a hybrid "third" limitations period for certain accident-related workers' compensation petitions, such as a petition grounded in delayed-onset PTSD:

[I]n the limited class of cases in which an unexpected traumatic event occurs and the injury it generates is latent or insidiously progressive, an accident for workers' compensation filing purposes has not taken place until the signs and symptoms are such that they would alert a reasonable person that he had sustained a compensable injury.

 

[Id. at 252-54.]

 

The Court cautioned, however, that its holding did not apply to all accident-related cases:

That is not to suggest a wholesale importation of the discovery rule that is a part of the occupational disease statute into all accidental injury cases. Notice and claim limitations in classic industrial accidents involving simultaneous traumatic event and injury will continue to be calculated from the date of the traumatic event. It is only in the narrow band of accident cases involving latency and insidious onset diseases that we think the Legislature would have intended the kind of leeway it developed to avoid a legitimately injured worker losing an occupational claim to be equally applicable to latent injury accidents.

 

Moreover, it should be noted that applying a discovery-type rule to that narrow class of accident cases will not result in the obliteration of the distinction between accidental injury and occupational disease for notice and filing purposes. It remains the fact that the accident calculation begins when the worker knows or should know he has incurred any compensable injury (for example, medical bills, temporary disability, or permanent disability).

 

[Id. at 261 (emphasis added).]

 

Because the record does not support a claim that plaintiff's PTSD is related to the fall, Brunell is not implicated. We further conclude, however, that even if we were to find that the fall and work-related stress bring this case within the rule established in Brunell, that case would not aid plaintiff. With respect to plaintiff's stress-related occupational disease claim, the record clearly establishes that plaintiff, beginning in 2001, the same year she claimed the sexual harassment began, received treatment from Dr. Kleefeld for stress and depression. As Dr. Kleefeld noted, "[u]nfortunately, there have been ongoing stressors from work even when she is not there . . . . Ongoing stressors appear to have interfered with proper rest and treatment." Thereafter, in a report dated June 11, 2003 directed to Cablevision's independent medical examiner, Dr. Kleefeld reported that plaintiff had developed "even deepening symptoms," including heart palpitations and pains, very severe anxiety, and vertigo.

In addition, plaintiff, on June 10, 2003, applied for temporary disability benefits, and indicated on the application that her disability was caused by her job. On this application, Dr. Tartaglia confirmed the disability was work-related. On June 24, 2003, plaintiff filed the First Report of Injury Form, indicating an injury date of May 23, 2003, and describing the injury as "mental stress." Thus, although plaintiff claims not to have been aware of the extent of her condition, it is abundantly clear that, as early as April 2001, and as late as May 2003, plaintiff knew or should have known that she had incurred a compensable injury. This conclusion is supported by Dr. Kleefeld's statement that plaintiff's PTSD symptoms "[began] to appear in 2003."

This case is unlike Earl v. Johnson & Johnson, 158 N.J. 155 (1999), in which the Court held that the statute of limitations for workers' compensation purposes did not begin to run until the date the claimant first became aware of the full extent of her permanent loss of respiratory function, despite her repeated bouts of bronchitis and sinus and respiratory infections beginning five years earlier. The claimant in that case, which was decided four years before Brunell, missed only two weeks of work as a result of her respiratory problems, which were caused by a workplace condition. Id. at 159. Her duties were subsequently changed to lessen her exposure to the condition, and she eventually accepted her employer's offer of early retirement. Notably, however, the claimant testified that she could have continued to work beyond her retirement date. Ibid.

In this case, however, plaintiff's health problems caused her to be absent from work for repeated periods, including extended absences from 2001 to 2003. Additionally, plaintiff was absent for over one month from May 23, 2003 until her termination on July 3, 2003. Plaintiff's health problems in this case were far more severe and caused plaintiff to miss considerably more work than the plaintiff's condition in Earl. Accordingly, Earl is readily distinguishable on its facts.

Rather, this case is more analogous to Adams v. New York Giants, 362 N.J. Super. 101 (App. Div.), certif. denied, 178 N.J. 33 (2003). In that case, George Adams, a former running back for the New York Giants, suffered a hip injury during an intrasquad scrimmage in August 1986. Id. at 103. According to Adams, he knew that he had hurt himself, but was unaware of the severity of the injury. Ibid. Adams was treated by the Giants medical staff and proceeded to play football until 1991. Id. at 104-05. After retiring from football, Adams' hip condition significantly worsened, eventually requiring a total hip replacement, which proved unsuccessful. Id. at 106. On July 25, 1996, Adams filed a claim petition against the Giants. Ibid. The court relied on Brunell in concluding that Adams' claim petition was time-barred:

We hold that Adams does not fall within the narrow class of cases which Brunell denotes as accident cases calling for application of the discovery rule. According to his own testimony, Adams knew that he suffered a serious injury right after the play in the August 1986 Giants training camp. The serious nature of the injury was underscored by the fact that he was unable to play for the entire 1986 season and was only able to perform at the level of seventy-five to eighty percent of his prior athletic ability during the remainder of his football career. Moreover, after his football career ended, Adams' hip pain and limited mobility accelerated. Nonetheless, he did not file his petition for workers' compensation until July 1996, five years after his football career ended and ten years after he suffered his hip injury in the Giants' training camp.

 

[Id. at 111.]

 

The court also distinguished the facts in that case from the facts in Brunell. According to the court, "while Adams clearly did not anticipate the severity of his disability ten years after the accident, he either was aware or, as a reasonable person, should have been aware of the disabling nature, seriousness and probable compensable character of his injury well before two years preceding his filing of a claim for compensation." Id. at 111-12. This, the court reasoned, was unlike the situation in Brunell, where both petitioners were not at all aware of their condition until well over two years later. Ibid.

Like the plaintiff's injury in Adams, and unlike the injury in Brunell, plaintiff's injury in this case is decidedly not "an example of an insidious disease process of which the worker is unaware at the time of the original traumatic event." Brunell, supra, 176 N.J. at 251. Significantly, plaintiff's expert certified that plaintiff suffered from chronic PTSD, not delayed-onset PTSD, as presented in Brunell. Accordingly, we conclude that had defendant filed a workers' compensation claim on behalf of plaintiff, it would have been time-barred. Plaintiff is therefore unable to establish that defendant committed professional error by failing to file a workers' compensation claim.

 

C. Plaintiff's Claim that Defendant Failed to Request Relief Based on Wrongful Termination and Failure to Accommodate

 

We also find ample support for the trial court's finding that, even assuming that plaintiff's termination was retaliatory, plaintiff could not show that she suffered damages as a result of her termination. By the date of her termination, July 3, 2003, plaintiff admits she was unable to work, a fact corroborated by the determination of total disability for Social Security purposes, effective May 23, 2003, and not contradicted or called into question by any other evidence.

As for plaintiff's claim of damages for defendant's failure to assert a claim of failure to accommodate under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 ("LAD"), we find Raspa v. Office of the Sheriff of Gloucester Cnty., 191 N.J. 323 (2007), to be on point and controlling. In that case, the Court held that "[a]n employer may, consistent with the LAD, terminate the employment of an employee who, after consideration of available reasonable accommodations, nevertheless is no longer able to perform the essential functions of his [or her] job." Id. at 341. In this case, the trial court, applying Raspa, found that "[p]laintiff was not physically capable of work after [May 23, 2003]," and that Cablevision therefore had no duty to accommodate her disability. The record fully supports that conclusion.

There is some evidence that Cablevision failed to accommodate plaintiff's condition prior to her last day at work, which was the day she fell, May 23, 2003. Like her workers' compensation claim, however, any claim of a failure to accommodate prior to May 23, 2003 was subject to a two-year limitations period, and was therefore time-barred when she first met with defendant on June 23, 2005. See Montells v. Haynes, 133 N.J. 282, 292 (1993).

Accordingly, we find no genuine issue of material fact regarding plaintiff's knowledge that she suffered a compensable injury more than two years prior to her first visit with defendant. Moreover, the record before this court supports the conclusion of the trial court that plaintiff did not otherwise suffer any damage or harm as a result of any alleged malpractice of defendant. The trial court therefore properly granted summary judgment in favor of defendants.

We conclude that plaintiff's remaining arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 For ease of reference, "defendant," as used in this opinion, refers to Del Sardo individually.