August 1, 2007
OLGA KARAK, PETITIONER-APPELLANT,
E.I. DUPONT, RESPONDENT.
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 95-014893.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 5, 2007
Before Judges Lintner, S.L. Reisner and Seltzer.
This appeal arises from the suicide of John Karak in May 1993. His widow, Olga Karak (petitioner), filed this workers' compensation claim alleging that her husband's suicide was brought on by severe depression that was not properly diagnosed by three co-employees who were associated with an Employee Assistance Program (EAP) established by Karak's employer, respondent E. I. DuPont (DuPont). Petitioner appeals from a dismissal of the claim on the merits, and we affirm.
Petitioner filed her claim petition on April 17, 1995. At the same time, she filed a Superior Court action against, among others, Stephen J. Glass, a psychiatrist not employed by DuPont, and three employees of DuPont who comprised DuPont's EAP: John Gamballe,*fn1 a counselor licensed as a psychologist in Pennsylvania but not in New Jersey; Robert Weiss, M.D.; and Everett Sparks, R.N.*fn2 The civil action was stayed pending a decision, by a judge of compensation, whether Karak's death arose "out of and in the course of his employment." N.J.S.A. 34:15-1. A trial was conducted, after which the compensation judge concluded that Karak's suicide did not arise out of and in the course of his employment and was therefore not compensable. The complaint was then dismissed. The judge also found that there was no jurisdiction to address the malpractice claim against Glass because he was not employed by DuPont. The judge did not address the alleged malpractice of co-employees Sparks, Gamballe, and Weiss.
On petitioner's appeal, we affirmed the ruling that the suicide was not a compensable work-related event. We found, however, that the compensation court was the appropriate forum for addressing petitioner's claim that co-employees Sparks, Gamballe, and Weiss had failed to treat, or had negligently treated, Karak's depression thereby causing his suicide. Karak v. E.I. DuPont Co., No. A-6792-00 (App. Div. Dec. 2, 2002) (slip op. at 17). The matter was remanded for consideration of the malpractice claims against Sparks, Gamballe, and Weiss. See Hawksby v. DePietro, 165 N.J. 58 (2000).
Trial commenced on December 7, 2004, and continued for six days. The parties agreed to submit into evidence the exhibits in testimony from the first trial, recalled some of the witnesses from the first trial, and produced additional evidence. The judge considered the testimony of petitioner's expert, Clancey D. McKenzie, M.D., and respondent's expert, Barbara Ziv, M.D.
Judge Richard E. Hickey, III authored a thoughtful and comprehensive eleven-page opinion, dated February 16, 2005, in which he found that in this case there were three very distinct medical providers. There is a certified counselor [Gamballe], a doctor certified in internal medicine and occupational medicine [Weiss], and a registered nurse [Sparks] who in combination make up the . . . [EAP]. Model Jury Charge 5.36A § 54 defines the standard of care of a general practitioner: "A person who engages in the general practice of medicine represents that he/she will have and employ knowledge and skill normally possessed by the average physician practicing his/her profession as general practitioner."
The function of an [EAP] is to provide counseling on a voluntary basis and to act as a triage for the assessment and referral to specialized fields of medicine. Since the three professionals operated as a unit as the [EAP], they should be held to a standard consistent with employee assistance programs in identifying employees with personal problems and referring them for treatment, support, and motivating them to complete treatment and assist in their rehabilitation. When applying a standard of care it is appropriate to look at the skills possessed by each of the members of the [EAP] but at no time would that standard of care rise to the level of the standard of care to be imposed on a board certified psychiatrist.
The judge then analyzed the actions of the three co-worker defendants and concluded
[t]he steps taken by the DuPont Employees Assistance Program staff were consistent with the purpose and function of such a program and that they observed, gathered information, and referred for the specialized treatment they felt appropriate. Mr. Karak's death, however tragic, is not the result of deviation from the appropriate standard of care for the Employees Assistance Program or that of Nurse Sparks, Mr. Gamballe, or Dr. Weiss.
On appeal, petitioner argues that the credible evidence did not support the judge's conclusions and that an incorrect standard of care was applied. We reject those claims and affirm substantially for the reasons set out by Judge Hickey in his written opinion of February 16, 2005.
As to the first argument, we note that our review of the judge's decision is limited to whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor. [Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).]
Our independent review of the record satisfies us that the judge's conclusions are well-supported by the evidence and that petitioner's claims to the contrary are without sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(1)(D), (E). We add only that the evidence fully supports the judge's findings, based on Ziv's testimony, that the signs of depression identified by McKenzie as requiring further action by Karak's co-workers were never communicated to them by petitioner and were denied by Karak on appropriate inquiry. The judge's conclusion that, given the information available to Gamballe, Sparks and Weiss, appropriate referrals were made, is unassailable.
As to the argument that the wrong standard of care was applied, we note initially that since no information reasonably suggesting imminent danger of suicide was available, petitioner does not explain, and we are at a loss to understand, how the application of a different standard would have permitted a different result. In any event, we are convinced that the judge applied the correct standard.
The applicable standard of care "must be established by expert testimony." Sanzari v. Rosenfeld, 34 N.J. 128, 135 (1961). Here, Ziv supplied that standard as to each of the EAP members, opining that it required the evaluation and referral for treatment. To the extent McKenzie supplied a different standard, the judge was free to resolve the conflict in the expert testimony as he did. See Lanzet v. Greenberg, 126 N.J. 168, 186 (1991) (quoting James v. City of E. Orange, 246 N.J. Super. 554, 563 (App. Div. 1991).
Moreover, the judge's decision is entirely consistent with the principle that a medical professional must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field. Marshall v. Klebanov, 188 N.J. 23, 33-34 (2006); Velazquez v. Portadin, 163 N.J. 677, 686 (2000); Adams v. Cooper Hosp., 295 N.J. Super. 5, 8 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997). The judge's decision reveals that he faithfully adhered to that principle in accordance with the competent expert opinion of Ziv, considering each of the co-workers individually.