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Rauch v. Drazin and Warshaw

March 19, 2008

SUSAN RAUCH, PLAINTIFF-APPELLANT,
v.
DRAZIN AND WARSHAW, A PROFESSIONAL CORPORATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1418-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued December 20, 2007

Before Judges Lisa, Lihotz and Simonelli.

Plaintiff, Susan Rauch, was a legal secretary for defendant, Drazin and Warshaw. Upon being diagnosed with work-related carpal tunnel syndrome, plaintiff filed a claim against defendant under the Workers' Compensation Act. N.J.S.A. 34:15-1 to -142. About a year later, defendant terminated plaintiff's employment. Plaintiff filed a three-count complaint alleging retaliatory discharge in violation of the Workers' Compensation Act, specifically N.J.S.A. 34:15-39.1, the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Family and Medical Leave Act (FMLA), 29 U.S.C.A. §§ 2601-2654. The trial court dismissed the count under the Workers' Compensation Act on summary judgment. The remaining counts were the subject of a jury trial. The court dismissed the LAD claim by way of a directed verdict. The jury returned a no cause for action verdict on the FMLA count. Plaintiff's new trial motion was denied.

Plaintiff argues on appeal that she presented sufficient evidence to withstand summary judgment on her Workers' Compensation Act retaliation claim, that her LAD claim should have gone to the jury because she established a prima facie case of disability discrimination, and that the trial court's jury charge under the FMLA was erroneous and led to the no cause verdict on that claim. Plaintiff further argues that in ruling upon the new trial motion, the trial judge exhibited bias towards her, which tainted his decision on the motion as well as certain trial rulings. Finally, plaintiff argues that the trial court erred in excluding evidence relating to a medical note issued by Dr. Paul Friedman. We reject these arguments and affirm. Plaintiff's last two arguments, pertaining to alleged bias by the trial court and the note by Friedman, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We discuss fully plaintiff's other arguments.

I.

Plaintiff began working for defendant in 1998. She worked directly for attorney Richard A. Amdur, Jr., along with another secretary, Pauline Parker. In November 2000, plaintiff began experiencing problems with her wrists and hands. She discussed this with her primary care physician, Dr. Frank C. Alario, who referred plaintiff to a physiatrist, Dr. Khang. After performing an EMG in February 2001, Khang diagnosed plaintiff with bilateral carpal tunnel syndrome and bilateral ulnar nerve neuropathy. This diagnosis was confirmed by a neurologist, Dr. Vicki Rab.

For the next several months, plaintiff attended physical therapy three times a week after work. She began wearing wrist braces to work. Defendant provided various accommodations, including a wrist rest, a new chair, and a new shelving system on which to place her files so she did not have to pick them up off of the floor.

On April 20, 2001, plaintiff advised Dennis A. Drazin, a partner in the firm, that she intended to file a workers' compensation claim. She advised she had met with an attorney for that purpose and, in her memo to Drazin said, "I will do my best to continue working because my job is very important to me."

Plaintiff filed a workers' compensation claim on May 2, 2001. In August 2001, defendant's compensation insurance carrier referred plaintiff to Dr. Christopher D. Johnson, who examined plaintiff and wrote several reports regarding her progress on August 21, 2001, October 11, 2001, and February 5, 2002. Johnson recommended that plaintiff take "rest periods of at least five minutes every half an hour, to stretch, and not to lift anything over maybe five or ten pound[s] tops." He also ordered an ergonomic assessment, which would insure that plaintiff's keyboard and chair were at the appropriate levels.

In January 2002, Johnson referred plaintiff for physical therapy at a facility in Tinton Falls. Plaintiff was unable to schedule her appointments after work at that facility, as a result of which she had morning appointments beginning at 8:30 a.m. and would arrive at work late at 10:00 a.m. Drazin worked along with the compensation carrier in an effort to have plaintiff paid for time lost at work due to her physical therapy, and he also made arrangements to make up for her lost time. Thus, plaintiff's work schedule was adjusted as a further accommodation.

On February 20, 2002, plaintiff suffered a back and neck injury during her physical therapy. On February 25, 2002, plaintiff went to work and "was not feeling well." She prepared a memorandum addressed to Amdur and Parker indicating what needed to be done on each file. The memo stated:

AS I TOLD YOU, I AM HAVING HAND PROBLEMS AND SOME NEW LOWER BACK PROBLEMS CAUSED FROM THE THERAPY I AM GOING FOR AT HEALTHSOUTH THROUGH WORKMEN'S COMP. IN THE EVENT THAT I HAVE TO GO OUT ON DISABILITY BECAUSE I AM IN SOME MAJOR PAIN, I THOUGHT I'D PREPARE THE FOLLOWING STATUS REPORT FOR YOU.

On that date, Alario provided a medical note excusing plaintiff from work because of back and hand pain, and stating that she could return to work on April 1, 2002. Plaintiff went out on disability on February 26, 2002. Alario completed a medical certificate for disability on February 27, 2002, specifying April 1, 2002 as the expected return to work date.

On March 10, 2002, plaintiff experienced flu-like symptoms, which developed into bronchitis ten days later. On March 25, 2002, Alario wrote a note, revising plaintiff's return date to April 4, 2002 and stating, "The above patient is being treated for back and hand pain." Plaintiff never presented this note to defendant. Alario referred plaintiff to Friedman, a pulmonary specialist.

On March 25 or 26, 2002, plaintiff contacted Amdur to inform him of the extended disability leave. Amdur was in trial, and plaintiff spoke to Parker, informing her she would be out until April 4, 2002. Parker testified that plaintiff informed her she would be out for an additional week. Upon receiving the message, Amdur contacted plaintiff and, according to him, plaintiff advised that her leave would be extended an additional ten days. Amdur said he considered that information "alarming" and that he was "getting pressure from Pauline Parker, [he] was getting pressure from Dennis Drazin about the work that's not being done, and that was cause for concern." Amdur was also concerned about plaintiff returning on "light duty." After this conversation, Amdur met with the managing attorney at the firm, Thomas DiChiara, to discuss plaintiff's "serious absenteeism issue" and the fact that she would be returning on "light duty."

According to plaintiff, Amdur contacted her on March 28, 2002, and informed her that DiChiara and Drazin would not hold her job open for her any longer. On April 3, 2002, plaintiff received a letter from DiChiara notifying her that her employment was being terminated because of thirty-six unexcused absences over the past three years "excluding Holidays, Vacation and Sick/Personal days and your recent disability [period]." The letter further stated that "[m]ost recently, you were expected to return on April 1, 2002 from disability, but informed Mr. Amdur, that, due to Bronchitis, you would be out for approximately a 1-week period and that even when you returned it would be on a limited and restricted basis."

On March 27, 2003, plaintiff filed this action.

II.

On September 29, 2005, Judge Perri granted partial summary judgment to defendant, dismissing plaintiff's retaliation claim under the Workers' Compensation Act. The judge found that plaintiff failed to establish a causal connection between the filing of her workers' compensation claim and her subsequent termination from employment. The judge explained:

Accepting plaintiff's allegations as true, as required under [Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995)], she sustained a work related injury to her wrists, and filed a worker's compensation claim. Approximately one year elapsed between the decision to file the worker's compensation claim and the employer's decision to terminate plaintiff's employment, during which time the defendant employer made ...


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