On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2001-32491.
Before Judges Axelrad, Winkelstein and
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This case arises out of the tragic events of September 11, 2001. Petitioner is a flight attendant for United Airlines (United). She was scheduled to work Flight 93 from Newark to San Francisco on September 11, but several days earlier she had requested and received the day off. Consequently, she was not aboard the flight when it was attacked by terrorists and crashed in Shanksville, Pennsylvania. After learning of the crash, and the horrific way her fellow flight attendants died, petitioner developed post-traumatic stress syndrome, for which she sought and received medical and temporary total disability benefits. The workers' compensation judge also ordered United to pay petitioner's counsel fee. The judge stayed his order pending this appeal.
United concedes that petitioner's post-traumatic stress syndrome is directly related to the events of September 11, but argues that she does not qualify for worker's compensation benefits because her disability did not arise out of or in the course of her employment. Although petitioner presents a very sympathetic case, she does not qualify for workers' compensation benefits because her condition did not arise in the course of her employment. Accordingly, we reverse the decision of the workers' compensation court and remand for judgment to enter in favor of United.
The following facts were stipulated between the parties and are not in dispute. Petitioner was hired as a flight attendant by United in 1984. She attended a training program that included safety issues, such as the evacuation of an aircraft under emergency circumstances. United did not provide her with training specific to hijackings; but, each year flight attendants were shown a security video which touched on the issue. In addition, United provided flight attendants with a Federal Aviation Administration (FAA) handbook that devoted a chapter to how flight attendants should handle a hijacking crisis, and what stressors flight attendants should expect as a result of their job. Petitioner read that chapter before September 11.
On August 17, 2001, petitioner was assigned to fly a line, or a combination of flights, for the month of September. One of the flights was Flight 93, scheduled to leave Newark for San Francisco on September 11, 2001. On September 6, 2001, however, she requested that she be given September 11 off because her former husband, also a flight attendant, was scheduled to work that day, and she needed the day off to pick up her daughter from school. Her request was granted and she was given September 11 off without pay. Thus, she was admittedly not working on September 11. Instead, she went bowling while her daughter attended school.
Petitioner became aware of the terrorist attacks on the World Trade Center while at the bowling alley. She watched television after the first plane struck the North Tower, and realized after the second plane struck the South Tower that one of the jets was an American Airlines flight and the other a United flight. She also learned that a United flight crashed in Pennsylvania, but she did not know that the flight had originated in Newark.
While she was on route from the bowling alley to pick up her daughter, her husband called and told her that the plane that had crashed in Shanksville was Flight 93 -- the flight she was scheduled to be on board. Petitioner immediately became upset and emotionally distraught. She was sobbing and trembling, nauseous, and began to have problems with her stools. She knew three of the flight attendants on Flight 93, and had flown with the pilots.
Petitioner watched the tragedy replayed on television over the next few days. She cried, trembled and could not sleep. Initially, she was unable to eat; then she began to binge.
Since September 24, 2001, Dr. Stephen Clarfield, a psychologist, has treated petitioner for post-traumatic stress syndrome on a biweekly basis. Petitioner has been upset, forgetful and has had trouble sleeping. She has not returned to work. She remains afraid, having learned of the brutal way the hijackers murdered the flight attendants on the plane. She has panic attacks when she sees a runway. Petitioner is overwhelmed by guilt, knowing that her vacation day caused a co-employee to die. Her best friends were tortured and killed. The parties agree that petitioner is temporarily totally disabled as a result of her disorder, and requires ongoing psychiatric treatment.
To be entitled to compensation under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142, an employee's accidental injury must"aris[e] out of and in the course of employment." Jumpp v. City of Ventnor, 177 N.J. 470, 476 (2003); N.J.S.A. 34:15-7. Although the Act has been broadly interpreted to bring as many cases as possible within its coverage, Silagy v. State, 105 N.J. Super. 507, 510 (App. Div.), certif. denied, 54 N.J. 506 (1969), it was amended by the Legislature in 1979 to"reduce costs by, among other things,'sharply curtail[ing compensability for] off-premises ...