Opinion
DOCKET NO. A-0986-11T2
09-11-2014
KATHRYN ROBINSON, Petitioner-Appellant, v. FIRST ENERGY and SECOND INJURY FUND, Respondents-Respondents.
Danielle S. Chandonnet argued the cause for appellant (Shebell & Shebell, LLC, attorneys; Ms. Chandonnet, on the brief). Louis M. Masucci, Jr., argued the cause for respondent First Energy (Weiner Lesniak, LLP, attorneys; Mr. Masucci, of counsel; Laura P. Murray, on the brief). Jane G. Lafferty, Deputy Attorney General, argued the cause for respondent Second Injury Fund (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lafferty, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall & Nugent. On appeal from Division of Workers' Compensation, Department of Labor and Workforce Development, Docket No. 2004-30601. Danielle S. Chandonnet argued the cause for appellant (Shebell & Shebell, LLC, attorneys; Ms. Chandonnet, on the brief). Louis M. Masucci, Jr., argued the cause for respondent First Energy (Weiner Lesniak, LLP, attorneys; Mr. Masucci, of counsel; Laura P. Murray, on the brief). Jane G. Lafferty, Deputy Attorney General, argued the cause for respondent Second Injury Fund (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lafferty, on the brief). PER CURIAM
Petitioner Kathryn Robinson, formerly employed by respondent First Energy, appeals from the September 23, 2011 order that dismissed with prejudice her workers' compensation claim petition seeking compensation for emotional distress. The Judge of Compensation (JOC) determined that petitioner had not suffered a compensable accident. Six years earlier, following a plenary hearing on petitioner's motion for temporary disability and medical benefits, a different JOC had ruled that petitioner had suffered a compensable accident. In this appeal, petitioner does not challenge the determination by the second JOC that she suffered no compensable accident; rather, she argues that he never should have retried the issue because the earlier decision was the law of the case. She also argues that the pre-trial order entered in anticipation of the 2011 trial did not identify as a trial issue whether she had suffered a compensable accident. Having considered petitioner's arguments in light of the record and controlling law, we affirm.
Petitioner worked as a customer service representative for First Energy from 1991 through March 24, 2004, the day after the incident that triggered her emotional distress. That incident occurred shortly before eight o'clock on the morning of March 23 when she drove into the employee parking lot. Although the parking lot had two entrances for entering vehicles, petitioner routinely entered the lot through a rear gate where vehicles exited, which she understood she was not supposed to do. However, she suffered from rheumatoid arthritis and entering through the rear gate enabled her to more easily turn into a handicapped parking space.
As petitioner turned into the rear gate on March 23, two of the company's meter readers were stopped in their pick-up trucks, side-by-side, "right there at the entrance blocking [her]." The trucks were pointing straight out and it appeared as though the drivers were talking.
Petitioner recognized the truck drivers as meter readers employed by the company because they were in company trucks and in company uniforms, but she did not know them. The driver on the left waved and crossed his hands and mouthed words she interpreted to mean, "Ooooh no." The driver also shook his head "no." The driver on petitioner's right moved his truck so that she could pass, which she did.
Petitioner claimed when the incident occurred, she froze. She was scared. When asked why, she explained: "They scared me. Here I was in the parking lot at a quarter to eight. Nobody was around. I mean, I had this guy - - these two guys. I was scared to death. There was no reason for them – I didn't know what was happening." Petitioner kept repeating to herself, "I'm getting out of here. I have to get out of here. I'm going to call the cops. I don't know what's going on."
Petitioner thought she was going to be attacked. There was no doubt in her mind "that man was going to do something to [her] and it wasn't going to be nice." She made those assumptions based on the anger that was coming out of his eyes. The look on his face was "like he was going to get [her] for something."
After driving to her handicapped parking spot, petitioner looked back and saw that the trucks were gone. She "was shaking like a leaf [and] . . . was scared to death." She sat in her car for a few minutes then went to work.
When she arrived at her office, she told the meter readers' boss what happened. Then she sat down at her desk, feeling "very disoriented." She was "very upset and very nervous" the rest of the day, but the computers were down so there was little work to do and she was able to get through the day. Petitioner "was probably more upset when [she] got home." She was afraid to return to work the next day because "there was no guarantee that that wasn't going to happen again, . . . and [she] didn't know why it happened in the first place."
Nevertheless, she returned to work the next day. A co-employee in human resources, Pam D'Emery, told petitioner the truck drivers' supervisor had assured the company that the situation would not recur. D'Emery asked petitioner what petitioner wanted the company to do. Petitioner said that was something D'Emery had to determine, but did not "think a slap on the wrist and 'don't do that again' warrant[ed] [her] going through what [she had] gone through and all last night and the ride [t]here." Petitioner thought D'Emery was unsympathetic, particularly when she pointed out that petitioner had gone through a part of the parking lot that said "[d]o not enter."
When petitioner returned to her desk, another supervisor, Joe, came "right into [her] face in front of everybody" and said "when do you think you are going to start working?" When he walked away, petitioner looked around and noticed two employees in the vicinity talking to other people. Her supervisor had not said a word to any of the other employees. She got up, went into a closet with a co-employee, and "just lost it"; she could not stop shaking and crying. She left work and has not returned.
Six months after leaving her job, petitioner filed a claim petition seeking damages for emotional distress. First Energy answered and denied that a compensable event had occurred. A month after petitioner filed her claim petition, she filed a motion seeking temporary disability and medical benefits.
Following petitioner's filing of the motion, a JOC conducted a hearing on six non-consecutive days over four months to determine whether petitioner had sustained a compensable accident. At the hearing, petitioner testified to the facts that we have recounted above. First Energy presented the testimony of several lay witnesses, including the meter readers who had encountered petitioner when she entered the parking lot, and Pamela D'Emery.
Petitioner and First Energy each presented an expert psychiatrist. Petitioner's expert testified that had First Energy's human resources department and manager handled the situation differently, petitioner would not be suffering from the severe anxiety disorder for which she required psychiatric medicines, mental health counseling, and psychotherapy. The expert opined that a significant part of petitioner's reaction was how she was treated after the incident in the parking lot, "and lack, in her mind, of support by her company and the comment made by her manager."
According to the doctor, petitioner reported that when she attended the human resources meeting the day after the incident, "'it was turned around to be [her] fault as [she] went into the spot the wrong way.'" Petitioner felt "that the rug had been pulled out from under [her] and [she] was being singled out." She "lost it." She felt she had to get out of the meeting, and was crying considerably. In the doctor's opinion, the mishandling of the situation by First Energy's human resources department and petitioner's manager aggravated whatever occurred on the day of the incident. That was primarily due to petitioner's sense of having been betrayed by the company.
First Energy's medical expert opined that petitioner suffered from a borderline personality disorder and that such disorders "tend to be persistent and long term," and "they interfere with social or occupational functioning." The doctor also felt petitioner suffered from a major depressive disorder and a panic disorder. According to the expert, petitioner's disorder caused her to react with a "hysterical response" during her meeting with human resources personnel when they "seemed to take the side of the two meter readers in the sense that they ask[ed] her well, why were you driving the wrong way down the road." In short, the doctor "felt that the patient's psychiatric disorders are due not to the peculiar circumstances of her work, but rather are due to peculiarities that are unique to the particular patient and were pre-existing."
After hearing the evidence, the JOC determined petitioner had sustained a compensable accident. Recounting how petitioner encountered the two meter readers, the JOC reasoned: "most people would get upset by this. There's something objective there. It's not something she imagined. It's something that really happened." Reiterating that petitioner had felt betrayed by her human resources department, the JOC stated, "I think that's a situation that would upset most human beings. I think I'd be upset by it." The JOC acknowledged that petitioner had an underlying problem, but determined there was "something which is to a material degree a contributing factor here and it's objective, it's real, and it's something that caused [petitioner] to react and to react in such a way that she, for want of a better term, she really went off the deep end." The JOC ordered First Energy to pay to petitioner medical and temporary disability benefits.
The JOC signed an implementing order on April 28, 2005. On June 29, 2005, we denied as interlocutory First Energy's notice of appeal and motion for leave to appeal. More than three years later, in October 2008, petitioner filed a petition impleading the Second Injury Fund. A year later, in October 2009, a JOC signed an order converting petitioner's temporary total disability benefits to total permanent benefits. The order provided explicitly that "upon final resolution of this matter, either by way of settlement or judgment, [respondent] shall have the right to appeal the finding . . . that [p]etitioner's injuries arose out and in the course of employment."
Currently, reported cases are conflicting as to whether an order granting or denying medical and temporary disability benefits is final. See, e.g., Anderson v. Well-Built Homes of Cent. Jersey, Inc., 69 N.J. Super. 246, 254 (App. Div. 1961) (stating an award of temporary disability benefits not appealable as of right prior to a final judgment); Hodgdon v. Project Packaging, Inc., 214 N.J. Super. 352, 358-60 (App. Div. 1986), certif. denied, 107 N.J. 109 (1987) (explaining there is no need to certify an order of temporary disability benefits as final for it to be appealed).
The parties signed a pre-trial memorandum in November 2010. Following the form's printed instruction, "Check if at issue," the parties checked a box in front of "Nature and extent of Permanent Injury." They did not check the boxes in front of "Accident," "Arise out of Employment," or "In course of Employment."
At its inception, the Deputy Attorney General representing the Second Injury Fund informed the court that "[t]here is an issue as to the petitioner's total disability, her eligibility for Second Injury Fund benefits and compensability." The court asked petitioner's attorney if he concurred and he responded, "That's correct, your Honor." The trial then commenced and petitioner testified about how the incident occurred and how she reacted. She also testified about the degree of emotional distress she had continued to suffer since the incident, and about how that emotional distress had affected her life.
Following petitioner's testimony, the JOC announced that he was willing to decide "whether on the facts[,] it meets the legal standard for compensable psychiatric disability." The JOC explained that he would accept petitioner's testimony as factually accurate in deciding the compensability issue. Petitioner's attorney, who by then had submitted a six-page brief on the issue of "whether the [c]ourt can address the issue of compensability," pointed out that the pre-trial memorandum had not included this issue. The JOC gave all counsel additional time to brief the issue. Thereafter, the JOC determined that petitioner had not sustained a compensable accident. He signed two dismissal orders, one dismissing petitioner's petition against First Energy, the other dismissing her claim against the Second Injury Fund. The JOC issued a written decision dated September 23, 2011, which he supplemented on November 9, 2011. This appeal followed.
Petitioner first argues that the 2005 order requiring First Energy to pay medical and temporary disability benefits "should be considered the law of the case which precluded a subsequent hearing on the issue of compensability." That argument is unsupported by precedent and contrary to the "well established [principle] that 'the trial court has the inherent power to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment.'" Lombardi v. Masso, 207 N.J. 517, 534 (2011) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).
Petitioner also argues that the JOC who presided over her trial improperly exercised his discretion. She maintains that "the issue of compensability was previously determined by another [JOC] after a full and complete trial." Petitioner reasons that "[u]nder the Law of the Case Doctrine, the subsequent trial judge lacked the good cause necessary to warrant relitigation of the compensability of petitioner's claim." We disagree.
Petitioner correctly points out that a trial court's inherent power to reconsider interlocutory orders is not without limits. "[T]he power to reconsider an interlocutory order should be exercised 'only for good cause shown and in the service of the ultimate goal of substantial justice.'" Lombardi, supra, 207 N.J. at 536 (quoting Johnson, supra, 220 N.J. Super. at 263-64). The JOC who presided over the trial had good cause to reconsider the previous decision: the decision appeared to be unsustainable, and in any event, it was not binding on the Second Injury Fund, which was not a party when the motion for medical and temporary disability benefits was litigated.
Petitioner does not challenge the second JOC's determination that her emotional distress was not compensable. Because she does not appeal that issue, we do not decide it. But the issue was certainly significant at trial, particularly because the Second Injury Fund had raised it and because no one had disputed, at that time, that the Second Injury Fund was not bound by the earlier determination.
More than thirty years ago, we explained in the context "of mental illness alleged to have been produced by gradual mental stimuli" that
the employee's subjective reaction is not to be disregarded but it cannot be the sole ingredient of the formula for compensability. There 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. Cases such as this one must be approached with caution so that in the end result natural sympathy and the concomitant desire to aid the plight of a mentally ill individual is not substituted for the statutory requirement that the mental condition arise out of the employment.
[Williams v. W. Electric Co., 178 N.J. Super. 571, 585 (1981), certif. denied, 87 N.J. 380 (1981).]
Thus, for petitioner's mental condition to have been compensable, the "working conditions must [have been] stressful, viewed objectively, and the believable evidence must [have] support[ed] a finding that the worker reacted to them as stressful." Goyden v. State, Judiciary, Superior Court of N.J., 256 N.J. Super. 438, 445 (App. Div. 1991), aff'd o.b., 128 N.J. 54 (1992). The significant questions as to whether the first JOC misapplied those legal principles and whether his determination was supported by credible evidence in the record, as well as the non-participation of the Second Injury Fund in the hearing on petitioner's motion for medical and temporary disability benefits, provided ample reasons for the second JOC to try the issue of compensability.
Petitioner further contends that "[t]he only issue for the court at the time of trial was the nature and extent of permanent disability, including Second Injury Fund Involvement and date of total disability." She points out that before the trial began, her "temporary total disability benefits were converted to permanent total disability benefits." She also points out that the pre-trial memorandum, signed by all parties, identified the issues to be tried as the nature and extent and permanent disability, the date of totality, and Fund contribution. She emphasizes that "[a]t no time was the issue of compensability raised, or any issue with regard to the handling of the trial by [the first JOC], which would give the new trial judge cause to not follow the law of the case."
We find no merit in petitioner's claim that the court should not have tried the issue of compensability because it was not in the pretrial order. As previously noted, at the trial's inception when the Deputy Attorney General representing the Fund identified compensability as one of the issues to be tried, petitioner's attorney concurred. Petitioner was examined and cross-examined on the issue. Indeed, she makes no argument that she withheld testimony due to a mistaken impression that compensability was not at issue. In view of petitioner's concurrence that compensability was a trial issue, her presentation of testimony on that point, and the absence of any demonstrable prejudice, her argument that the JOC was precluded from trying the issue of compensability must be rejected.
Petitioner's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION