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Appellate Division Reverses Judge of Compensation and Remands Case to a Different Judge

By on July 21, 2014 in FMLA with 0 Comments

Mary Liu worked as a dealer at Bally’s Casino in Atlantic City.  On November 10, 2012, she was dealing a game of poker.  A customer whom she knew well “signified a check by forcibly striking the table very hard.” Petitioner was not facing the customer and felt startled by the noise.  She said her heart began to race and her hands cramped up.  Petitioner initially rejected an offer to take her to the hospital.

An hour or so later, petitioner felt her body shaking with numbness in the back of her head.  She felt her heart rate increase with chest pain and was transported by wheel chair to a taxi, having declined the use of an ambulance.  She was treated and released by the hospital.

The next day petitioner requested medical leave.  She saw Dr. Arvind Patel, M.D., an authorized physician, who diagnosed an acute anxiety reaction and suggested she could return to work.  The following day petitioner advised Bally’s that she did not feel well enough to return to work.  She said her own family doctor diagnosed a heart problem and took her out for a month.

On November 16, 2012, petitioner resumed working but again found her heart rate increasing with hand cramping.  She was taken to the ER by ambulance and discharged.

Dr. Patel saw petitioner again and suggested that she return to see him in a week.  Petitioner did not feel that Dr. Patel was helping her and was sent to Dr. Gary Glass, a psychiatrist.  He recommended a three-week absence from work. 

Petitioner saw Dr. Glass on January 7, 2013.  He recommended an additional two to three weeks before returning to work.  On January 23, 2013 Dr. Glass saw her for follow-up and recommended a neurological consultation given petitioner’s ongoing complaints of weakness and headaches.  When he saw her again on February 7, 2013, he also recommended that she return to work on February 11, 2013.  At that point petitioner became more animated and began complaining about cramping in her arms and fingers.

When Dr. Glass saw her on February 9, 2013, he kept her out of work again until March 4, 2013.  In the interim, the neurological evaluation was done, including an EMG, EEG, and MRI, all of which were normal.  The neurologist recommended physical and occupational therapy and found that her problems were caused by anxiety.

On March 1, 2013, Dr. Glass wrote that he disagreed with the neurologist and felt that petitioner had become accustomed to being off work and simply did not want to return to work any longer.  He cleared petitioner to return to work on March 7, 2013.

Petitioner claimed that her family doctor, Sun Miao, M.D., prescribed psychiatric care and put her out until May 31, 2013.  She never produced the report, however, from Dr. Miao.

On March 28, 2013, petitioner contacted Bally’s Las Vegas HR office and sought medical leave with a projected return to work date of May 31, 2013.  She was informed that she was not eligible for FMLA and would need to request a personal leave.  She also called Dr. Glass to report that her symptoms were severe.  Dr. Glass felt petitioner was exaggerating her symptoms and concluded that she was at maximal medical improvement.

Petitioner next applied for personal leave per the employee contract, which allowed for up to 60 days.  She also requested an IME.  Bally’s arranged a consultation  with Dr. Charles Meusburger, M.D.   When petitioner contacted HR she failed to inform Bally’s that she was departing for an extended trip to China to see her parents.  HR tried to reach her but she had already left for China.  She did reach Bally’s at one point and said that her “phone was not working and she was out of the country relaxing.” 

Petitioner missed the first appointment with Dr. Meusburger but when she returned from China, she rescheduled the exam for June 6 and June 13, 2013.  In the interim Bally’s notified her on May 9, 2013 that her employment was terminated for violating the personal leave policy. 

Dr. Meusburger saw petitioner in June and opined that petitioner suffered from an adjustment disorder with anxiety and depression as well as a panic disorder related to work.  Petitioner filed a claim petition and motion for medical and temporary disability benefits relying on the opinion of Dr. Meusburger. 

The Judge of Compensation did not conduct a hearing on the motion.  Instead, he reviewed the papers filed by both parties and entered an order against Bally’s to retroactively reinstate temporary disability benefits.  He also ordered that such benefits would continue into the future.  The Judge of Compensation prepared a supplemental opinion stating that he “abided by Dr. Meusburger’s findings that petitioner’s condition, that of post-traumatic stress, was a direct result of her experience on November 10, 2012.”  He did not comment on why he disregarded the opinion of Dr. Glass, nor why he did not require testimony from the medical experts. The Judge also rejected the applicability of the decision in Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), certif.. denied. 188 N.J. 492 (2006).

The Appellate Division recited numerous reasons for its reversal of the Judge of Compensation in this matter. 

  1. The court said that the Judge of Compensation erroneously relied on a statement Dr. Mesuburger made that petitioner’s family physician kept her out of work from March 26, to May 31, 2013.  No such report was ever produced.
  2. When Dr. Glass wrote his report on March 7, 2013 stating that petitioner could work, there was no countervailing medical report from any doctor.  The Appellate Division noted, “Rather, the petitioner decided to take an extended vacation out of the country, claiming that leave was ordered by her family physicians.”
  3. The Court noted that the Judge of Compensation made no causation findings and completely ignored Dr. Glass’s opinion that petitioner could return to work in March.  There was no analysis of why the Judge of Compensation chose to rely on the IME doctor, who saw petitioner twice, over Dr. Glass, who saw petitioner seven times over many months.
  4. There was no discussion in the Judge of Compensation’s opinion about why the Judge disagreed with Dr. Glass’s view that petitioner was exaggerating her symptoms because she did not want to return to work, nor any discussion about the Judge’s disregard of Dr. Patel’s opinion.
  5. The Court also pointed out that there was no support in the record for the Judge’s conclusion that Dr. Glass “mistakenly sent petitioner back to work.”  Nor did the Judge evaluate the normal neurological reports that showed no objective explanation for petitioner’s symptoms in her chest, arm or hands.
  6. The Judge of Compensation also assumed facts that were not in the record in deciding that there was a traumatic event at work.  The Court observed that the Judge inaccurately described the work event as “a fight broke out at the petitioner’s table while she was dealing cards.”  There was nothing in the record about such a fight.
  7. The Judge also failed to address the issue of petitioner’s choosing to go on an extended vacation to China without clearing the leave with HR.  The Judge of Compensation found petitioner “did not abandon her job.”  Yet he did not mention anything about the trip to China.
  8. Most significantly, the Court concluded that the Judge erred in finding that Cunningham did not apply.  That case says that when an employee is terminated or quits, he or she is not eligible for temporary disability benefits unless the employee can prove that he or she would have been working but for the work injury.  In this case, Bally’s argued that petitioner was not entitled to temporary disability benefits because she had been fired and because she never proved she would have been working.  In an unusually blunt comment, the Court said, “We further note the legal conclusion that Cunningham is inapplicable is wrong.”   The Court commented that “[p]etitioner’s voluntary removal from the work force preceded Dr. Meusburger’s medical evaluation diagnosing her as suffering from post-traumatic stress and other disorders.”
  9. Lastly, the Court cited to the Rules of the Division of Workers’ Compensation which require a Judge of Compensation to conduct a hearing and hear testimony from witnesses when a respondent rebuts the allegations of petitioner’s motion for benefits.  In this case, the Appellate Division concluded that petitioner should have produced live testimony, and the Judge of Compensation should not have ruled on the papers alone.

This decision can be found at Liu v. Bally’s Casino, A-0737-13T3 (App. Div. July 18, 2014).  Perhaps the most unusual aspect of the decision is the final paragraph: “Reversed and remanded to a different judge of compensation for review, including an evidentiary hearing, in accordance with our opinion.”

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John H. Geaney

About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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