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No Legal Malpractice Where Plaintiff Did Not See Comp Attorney Until Two Years After She Knew of Her Stress Condition and Relationship to Work

By on June 18, 2012 in Key Defenses with 0 Comments

New Jersey has a statute of limitations for both traumatic and occupational disease claims.  In Millar v. Darren J. Del Sardo, Esq. A-4388-10T1 (App. Div. April 27, 2012), both statutes of limitations came into play.

Plaintiff Cynthia Millar began working for Cablevision in 1997 as an account executive.  She began treating with a psychologist for stress and depression in 2001.  Plaintiff lost time from work, but eventually returned in October 2001 when she alleged she was subjected to sexually harassing behavior from one of her supervisors.  She had continuing health issues in 2002 and early 2003,  requiring additional leave. Her psychologist noted in an April 2003 report that plaintiff’s stress and illness were due to work stressors.

On May 23, 2003, plaintiff alleged that she slipped on a wet floor in the company bathroom and injured her leg.  She also alleged that she was suffering a nervous breakdown at this time.  She was taken by ambulance to the ER on this date and never returned to work.  Plaintiff filed for State TDB benefits on June 10, 2003, describing her disability as work related.  Her psychologist wrote a report on June 11, 2003 indicating that plaintiff’s stress was work related and that she was also suffering from heart palpitations and pains, severe anxiety and vertigo.

Plaintiff filed a first report of injury form on June 24, 2003 referring to the injury date of May 23, 2003.  She also alleged mental stress from working overtime, and was discharged from her employment on July 3, 2003.

The company denied her claims, but plaintiff did not file any workers’ compensation claim in 2003 or 2004.  On June 23, 2005,  she met with attorney Del Sardo for the first time.  He prepared a complaint against Cablevision alleging sexual harassment.

In February 2006, petitioner’s psychologist diagnosed her with Post Traumatic Stress Syndrome, which began in 2003.  The Social Security Administration granted her SSD application on June 17, 2009, indicating a date of totality of May 23, 2003.

Plaintiff eventually sued defendant Del Sardo, alleging that he failed to file a workers’ compensation occupational stress claim on her behalf.  Defendant argued that there was no legal malpractice because the statute of limitations had run by the time she had visited his office.  The trial judge granted summary judgment to defendant and plaintiff appealed.

The Appellate Division affirmed the dismissal of plaintiff’s case, holding that occupational statute of limitations barred plaintiff’s claim.

With respect to the occupational stress claim, the Court noted that there was ample evidence that plaintiff knew her condition and its relationship to work as far back as 2001 and clearly by 2003.  She did not see a lawyer until June 23, 2005.   “With respect to plaintiff’s stress-related occupational disease claim, the record clearly establishes that plaintiff, beginning in 2001, the same year she claimed the sexual harassment began, received treatment from Dr. Kleefeld for stress and depression.” The Court noted that Dr. Kleefeld also wrote a report dated June 11, 2003 stating that plaintiff had developed “even deepening symptoms,” including severe anxiety.

In addition, the Court observed that plaintiff filed a TDB application on June 10, 2003 indicating that her condition was caused by the job.  “Thus, although plaintiff claims not to have been aware of the extent of her condition, it is abundantly clear that, as early as April 2001, and as late as May 2003, plaintiff knew or should have known that she had incurred a compensable injury.”

Plaintiff argued that the rule in Brunell v. Wildwood Crest Police Dep’t, 176 N.J. 225 (2003) should apply. That case involved a delayed onset of PTSD for a six years post-work injury. The work incident happened in 1994 but the claim was not filed until 2000.  The Court tolled the statute of limitations under the “discovery rule,”  allowing the workers’ compensation claim to be heard.  In this case, the Court said that Brunell did not apply and cited a specific limitation that the Supreme Court expressed in Brunell.  “It is only in the narrow band of accident cases involving latency and insidious onset diseases that we think the Legislature would have intended the kind of leeway it developed to avoid a legitimately injured worker losing an occupational claim to be equally applicable to latent injury accidents.”

The Court also said that there was no showing that plaintiff’s PTSD condition was related to her fall in May 2003; hence, Brunell did not apply.  Further, plaintiff started treating for stress related to work in 2001.

This case demonstrates that the statute of limitations with respect to occupational disease claims is alive and well in the State of New Jersey. It becomes very important for employers and practitioners who are handling occupational disease claims to get all the prior treating records in order to find out when the condition manifested, and when the claimant was aware of the condition and its relationship to work.

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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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