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Ross v. City of Asbury Park

November 23, 2009

LORI ROSS, PETITIONER-RESPONDENT,
v.
CITY OF ASBURY PARK, RESPONDENT-APPELLANT.



On appeal from the New Jersey Department of Labor, Division of Workers Compensation, CP No. 2006-28659.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 5, 2009

Before Judges Axelrad, Fisher and Sapp-Peterson.

After a trial, the workers' compensation judge found that petitioner-employee Lori Ross (petitioner) had suffered compensable mental stress as a result of prolonged exposure to a hostile work environment. We affirm because the judge was entitled to conclude from her findings, which were supported by credible evidence, that petitioner was subjected to objectively stressful working conditions.

We need not recount all the details of the numerous incidents described in the testimony presented during trial. According to testimony the judge credited, petitioner was hired by respondent City of Asbury Park in late 1998. Before long she was repeatedly asked, at least two or three times a week, to assist the city manager at the time, Wilbur Russell. This was necessary due to the fact that Russell's secretary, Cassandra Dickerson, was frequently absent. The city manager's requests for assistance were made directly to petitioner; this bypassed petitioner's supervisor and created an atmosphere of resentment.

On one occasion when petitioner was assisting, Russell reprimanded Dickerson for arriving at work on Monday "in Friday night clothes" and questioned why Dickerson did not dress like petitioner. This indirect commendation of petitioner's professionalism generated problems between petitioner and Dickerson, resulting in a smear campaign directed at petitioner. This campaign took on sexual overtones and included the circulating and posting of a pornographic cartoon referring to petitioner and assistant city manager, James Famularo. When petitioner brought the cartoon to Famularo, he acknowledged it was inappropriate and ripped it up, but took no other action.*fn1

Petitioner testified that she approached Dickerson about the cartoon and Dickerson acknowledged responsibility. This admission was made in the presence of Famularo, but still no disciplinary action was taken.

Petitioner also testified to the circulation of a rumor in the City's offices that petitioner had a sexual relationship with other co-workers while attending a League of Municipalities conference in Atlantic City in November 2005. Dickerson spoke loudly of this false rumor in order to widely disseminate it in the City's offices. The assistant city manager discussed the rumor with petitioner, but proposed no solution. Instead, the assistant city manager only denied his personal involvement in spreading the false rumor and placed blame on another employee.

Indeed, rather than remedy this chronic problem, Terry Weldon, who served as city manager for a while, attempted to have petitioner laid off from her job based on erroneous information. On another occasion, a false rumor was spread that petitioner was resigning.

Petitioner asserted that all these events evoked in her feelings of humiliation, shock and anger, and caused her to lose sleep. Ultimately, as a result of the failure of the city managers to address the problems or alter the hostile atmosphere, petitioner eventually retained counsel.

During trial, the judge was provided with a report of a psychiatrist that diagnosed petitioner with "Adjustment Disorder with Mixed Anxiety and Depressed Mood." The psychiatrist described this as "a development of significant emotional and behavioral symptoms in response to identifiable psychosocial stressor or stressors," which were related to "an unhealthy work environment." The psychiatrist also opined that the adjustment disorder "is gradually transforming itself into a Depressive Disorder, NOS, and Anxiety Disorder, NOS," and that petitioner was "in urgent need" of treatment.

In finding in petitioner's favor, Judge Leslie A. Berich applied correct legal standards. The Workers' Compensation Act is "humane social legislation designed to place the cost of work connected injury upon the employer who may readily provide for it as an operating expense." Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 586 (1959). Among other things, the Act permits recovery for "all diseases arising out of and in the course of employment, which are 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." N.J.S.A. 34:15-31. Psychic injuries, whether standing alone or in conjunction with physical injuries, are compensable occupational diseases, as recognized in Williams v. W. Elec. Co., 178 N.J. Super. 571, 577 (App. Div.), certif. denied, 87 N.J. 380 (1981). See also Fiore v. Consol. Freightways, 140 N.J. 452, 474 (1995); Saunderlin v. E.I. DuPont Co., 102 N.J. 402, 406-07 (1986); Wernowski v. Cont'l Can Co., 261 N.J. Super. 269, 273 (App. Div.), certif. denied, 133 N.J. 437 (1993).

Williams recognized that the allowance of awards based solely on a "subjective reaction to the work itself" would transform the compensation laws "into a program of general health insurance -- clearly not the intent of our Legislature." 178 N.J. Super. at 582. Instead, Williams held "[t]here 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 ...


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