PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
5/18/2022 – 6/06/2022
JUDICIAL DISCRETION
Judith Carbonell-Caban v. Elwyn, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 18, 2022
Issues:
Whether the WCJ erred in finding the Claimant fully recovered from her work injury, in not awarding Claimant wage loss benefits beyond the date of Employer’s IME, in not dismissing the suspension petition as moot, and in not imposing penalties?
Background:
Claimant sustained a work injury as the result of a motor vehicle accident (MVA) that occurred in the course of Claimant’s employment as a service coordinator for Employer. Employer initially accepted liability for the work injury through issuance of a medical-only Notice of Temporary Compensation Payable (NTCP), which described Claimant’s work injury as a strain to her right wrist, low back, and neck. A second NTCP filed on May 13, 2015, indicated that Claimant would receive total disability benefits. Thereafter, Employer denied liability for Claimant’s work injury through a Notice Stopping Temporary Compensation (NSTC) and a Notice of Compensation Denial (NCD). The NCD described Claimant’s injury solely as a right wrist strain and contested the extent of Employer’s liability for Claimant’s work injury and asserted that she had not suffered any wage loss due to the work injury; however, Employer would continue to pay the cost of any reasonable and necessary medical treatment related to the work injury. Claimant filed a petition seeking reinstatement of benefits under the Act, an amendment to the description of her work injury, and the imposition of penalties for Employer’s alleged violations of the Act. Employer filed a petition to terminate Claimant’s benefits, based on the opinion that Claimant had fully recovered from her work injury. Employer also filed a separate petition requesting an immediate suspension of Claimant’s benefits following her receipt of a third-party recovery from the other driver involved in the MVA.
Holding:
Claimant essentially argues that her medical expert was more credible than Employer’s. It is not for Claimant to determine which expert is credible; that function is performed by the WCJ in her role as the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight. Claimant provided no legitimate basis to overturn the WCJ’s credibility determinations. A medical expert’s testimony is unequivocal if, after providing a foundation, he testifies that he believes or thinks the facts exist, and the result in question came from the assigned cause. The law does not require every utterance from a medical expert to be certain, positive, and without reservation or exception. Employer’s expert’s opinions were not incompetent. His recitation of the mechanism of injury is entirely consistent with Claimant’s testimony that she was injured when she was hit from behind. As to the discrepancy between Claimant’s pain symptoms and the IME findings, the IME doctor testified that the Claimant’s presentation was “out of proportion” to those findings. He was unable to correlate Claimant’s subjective complaints with his objective findings. While the expert agreed that he did not discuss the particulars of Claimant’s pre-injury job beyond the driving aspect of her duties, he unequivocally opined that Claimant required no further care or treatment for her work injury, which consisted of strains to Claimant’s lumbar and cervical spine and her right wrist. Employer’s Expert was only required to recognize the accepted work injury, not any and all injuries Claimant alleged she sustained. While Employer’s motivation for seeking a suspension of Claimant’s benefits was satisfied upon receipt of the proceeds from her third-party settlement, we agree with the Board that the WCJ’s decision to grant the suspension petition amounted to harmless error, in light of the simultaneous termination of Claimant’s benefits. There would be no benefit in pursuing a remand, which will only serve to unnecessarily prolong the instant litigation. As to its alleged failure to pay Claimant’s wage loss benefits, Employer explicitly contested the extent of its liability and the extent of Claimant’s disability. The additional periods for which the WCJ found Employer liable for the payment of wage loss benefits occurred several months after Employer contested the existence of any work injury beyond a right wrist strain. In light of the above, the WCJ did not abuse her discretion in denying Claimant’s request for penalties.
Affirmed
Ken Walton General Contractor v. Patrick Donahue (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 23, 2022
Issues:
Whether Claimant was the employer’s employee suffered a work-related injury? Whether the Interlocutory Order was a reasoned decision? Whether the WCJ erred in awarding a penalty and counsel fees for an unreasonable contest?
Background:
According to Claimant, August 8, 2017 was his first day of work with Employer. Before WCJ McCormick, Claimant testified that Ken Walton, owner of Employer (Walton), hired him in a phone conversation the day before. Claimant maintained Walton committed to hiring him “full time,” with 40 hours of work per week at a rate of $15.00 per hour. Claimant was to report to Walton’s home the following day, and he and Walton’s other employees would then travel to a job site for work on a demolition project. Walton flatly contradicted Claimant’s account of the August 7, 2017 phone call, stressing that, while he did ask Claimant to visit his home on the 8th, this was only to allow Claimant to fill out a job application and work one or two days on a trial basis. Walton testified his policy is to have potential employees accompany him to a job site so he can assess their “skill level” and whether they will “fit” with his team. In Walton’s view, Claimant was injured before that assessment could take place, so he was never employed by Employer. Shortly after Claimant arrived at Walton’s home, he injured himself while unloading a children’s playhouse from Walton’s truck. The parties dispute why Claimant was unloading the playhouse. Claimant maintains Walton ordered him to unload the playhouse to make room for other work-related items in the truck bed. Conversely, Walton testified that Claimant volunteered to unload the playhouse without any direction to do so. Claimant filed the Claim Petition, seeking full disability benefits under the Act. Claimant filed a penalty petition based on Employer’s alleged failure to file initial paperwork disputing or acquiescing to the Claim Petition within 21 days. WCJ Beck issued a final decision granting the Claim and Penalty Petitions. WCJ Beck simply “deferred” to WCJ McCormick’s conclusions as to Claimant’s employment status and the work-related injury, as Judge McCormick had the opportunity to view Walton’s testimony live and evaluate his demeanor and deportment. However, WCJ Beck found Claimant could only reasonably expect to work 28.37 hours per week, based on Employer’s wage records. Additionally, the WCJ found Claimant was totally disabled until he returned to work part-time. After that, Claimant was partially disabled until September 6, 2018, the date of employer’s IME, by which time he was fully recovered and WCJ Beck terminated all benefits as of this date. The WCJ ordered Employer to pay 20% of all indemnity benefits, plus interest as a penalty for not filing a Notice of Compensation Denial within 21 days of Claimant’s injury. WCJ Beck also awarded unreasonable contest attorney’s fees to Claimant as Employer’s contest was unreasonable until the date of the IME. Prior to that, in WCJ Beck’s view, Employer defended the claim for benefits based upon the asserted lack of an employment relationship.
Holding:
WCJ Beck and the Board erred in deferring to WCJ McCormick’s Interlocutory Order, as it was not a reasoned decision. WCJ McCormick’s Interlocutory Order fails to make crucial findings of fact on all essential issues necessary for review and does not provide a reasonable explanation for determinations of witness credibility. Finally, this order fails to include an explanation of the rationale for the decision. The Interlocutory Order is not a reasoned decision because it offers nothing more than bald conclusions on the legal issues of employment relationship and work-related injury. The Board erroneously affirmed the WCJ’s decision to assess penalties and unreasonable contest attorney’s fees against Employer. The imposition of penalties and fixing the amount thereof are matters committed to the discretion of the WCJ. That discretion, however, is not without limits. Where the WCJ “reaches a manifestly unreasonable result,” we need not defer to his discretionary determination. WCJ Beck’s penalty award is manifestly unreasonable. Employer had until August 29, 2017 to send a Notice of Compensation Denial to Claimant and the Bureau. While the Employer filed its Notice of Compensation Denial 38 days past the deadline, Employer filed an Answer to the Claim Petition on September 26, 2017, which presented the basis for Employer’s denial of compensation in essentially the same manner as a Notice of Compensation Denial. Furthermore, Employer’s Answer indicated its “first notice” of Claimant’s view that he had suffered a compensable injury was the filing of the Claim Petition on September 6, 2017. Under these circumstances, no discernible prejudice to Claimant resulted from Employer’s delay in filing the Notice of Compensation Denial. Employer’s untimely filing, therefore, is at worst a technical violation of the Act. A penalty is not required every time a violation is established. This penalty is grossly disproportionate to Employer’s violation, which caused no prejudice to Claimant, who had already filed the Claim Petition by the time he received the Notice of Compensation Denial. As such, WCJ Beck’s penalty award was “manifestly unreasonable” and thus an abuse of discretion. WCJ Beck’s basis for awarding attorney’s fees to Claimant fails on multiple levels. Employer legitimately contested issues other than the existence of an employment relationship between Claimant and Employer. WCJ Beck actually ruled in Employer’s favor on the disputed fact issues of Claimant’s average weekly wage and whether he is permanently disabled. Furthermore, even if Employer’s contest had been exclusively focused on the issue of employment relationship, WCJ Beck told the parties at the November 16, 2018 hearing that he would entertain additional argument on this issue and any other issue that was previously determined via the Interlocutory Order. In taking up this invitation, Employer cannot have presented an “unreasonable contest” justifying the award of attorney’s fees.
Reversed in part, vacated, and remanded
Edward J. Stanis v. WCAB (Brand Energy Services, Inc., Superior Scaffold, Stone & Webster, And A.T. Chadwick Services)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 23, 2022
Issue:
Whether the Claimant met his burden of proving that he sustained a disabling work-related injury?
Background:
Claimant filed a claim petition against his purported employer, Brand Energy, alleging he sustained injuries during the course and scope of employment as a union carpenter. Claimant thereafter filed a penalty petition, averring that Brand Energy violated the Act, by failing to issue the proper Bureau of Workers’ Compensation notice either accepting or denying liability for the alleged work injury. Brand Energy filed joinder petitions, against three other employers. The WCJ determined that Claimant’s alleged work incident did not occur and, therefore, he did not sustain any work-related injuries. The WCJ also determined that Claimant failed to establish that Brand Energy violated the Act.
Holding:
It is the Claimant who bears the burden of proving all elements necessary to support an award of workers’ compensation benefits. Where the causal relationship between the work incident and the injury is not obvious, unequivocal medical evidence is necessary to establish that relationship. Moreover, the WCJ, as factfinder, has complete authority over questions of witness credibility and evidentiary weight and is empowered to resolve conflicts in the evidence. As there was nothing to indicate that the WCJ’s credibility determinations were made arbitrarily or capriciously, and the Claimant failed to adduce credible evidence to establish his entitlement to workers’ compensation benefits the WCJ’s determination must be upheld. The Court also reviewed the standard for a “reasoned decision” noting that for witnesses testifying before the WCJ, it is appropriate for the WCJ to base his determination solely upon the demeanor of the witnesses, and a mere conclusion as to which witnesses were credible is sufficient for a reasoned decision. When witnesses testify only by deposition, the WCJ must articulate an actual objective basis for the credibility determination.
Affirmed
Ricko A. Callender v. David Elliot Poultry Farm Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 24, 2022
Issue:
Whether the Board committed reversible error by refusing to consider Claimant’s Social Security Disability Decision? Whether the Board erred by refusing to accept that the facts of this case establish the existence of a work injury?
Background:
Claimant worked as a truck driver, which entailed loading, unloading, and delivering boxes of chicken weighing between 80 to 90 pounds. Claimant filed a claim petition alleging he sustained injuries while making a delivery for Employer. The WCJ denied the claim petition. The Board affirmed.
Holding:
The Claimant’s appeal is without merit. The SSA’s decision declaring Claimant disabled was not made part of the certified record before the WCJ, the Court could not consider it. Also, a determination of disability by the SSA is not relevant to prove whether a Claimant’s disability resulted from an alleged work-related injury. It is the Claimant who bears the burden of establishing his right to compensation. Here, the WCJ concluded that Claimant failed to meet his burden of proving a work injury occurred at all. The WCJ did not find Claimant to be credible. Moreover, the WCJ found no unequivocal medical testimony that Claimant’s medical impairments resulted from his work. The WCJ deemed the testimony of Claimant’s expert credible but not persuasive, in light of his reliance upon the inconsistent history provided by Claimant, and because this expert had not reviewed Claimant’s medical records from several other doctors with whom Claimant had treated. WCJ, as the ultimate fact finder, is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part.
Affirmed
Michelle Nestman v. Gold Key Country Club, Inc. & Cincinnati Ins. Co. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 27, 2022
Issue:
Whether the WCJ’s decision was based on incompetent testimony from Employer’s medical expert, allegedly because he did not accept and employ the WCJ’s 2018 amended description of Claimant’s work injury, and did not opine that Claimant had fully recovered from the injury as described in the WCJ’s 2018 decision?
Background:
Claimant sustained a work injury to her right index finger in 2014, which was accepted as a right index finger laceration. In 2018, a WCJ granted Claimant’s petition to amend her work injury description to include neuralgia secondary to a crush injury to her right index finger. In 2019, Claimant filed a petition for specific loss benefits, alleging that she had effectively lost the use of her right index finger. Employer filed a termination petition contending that Claimant had fully recovered from her work injury. Employer had their expert from the previous litigation reexamine Claimant in October 2019. In forming his opinion following the October 2019 examination and records review, employer’s expert now assumed that Claimant’s work injury included neuralgia as described in the amendment granted in the 2018 WCJ opinion. (In previous litigation this expert rejected the presence of neuralgia). He then opined that Claimant had fully recovered from her work injury, found no evidence of any neuralgia pattern, and posited that Claimant had recovered from her injury. The WCJ found employer’s expert testimony more credible than that of Claimant and her medical expert. The WCJ dismissed Claimant’s petition for specific loss benefits and granted Employer’s termination petition.
Holding:
Employer’s expert credibly testified that he was willing to accept the work injury description found in the WCJ’s 2018 Decision and Order, and that there was no sign of it when he examined Claimant in October 2019. He reviewed the WCJ’s 2018 decision amending the description of Claimant’s work injury to include neuralgia. Further, the expert was directed to assume, in giving his medical opinion, that the WCJ’s 2018 decision concluded Claimant’s original work injury in 2014 included “severe neuralgia of the right hand and index finger.” The expert’s testimony constituted substantial evidence in support of the WCJ’s decision to grant Employer’s termination petition.
Affirmed
Jennifer WEARY-IRVIN v. U.S. FOODS (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 27, 2022
Issues:
Whether the injuries to “multiple body parts” accepted by Employer in the NCP should include post-concussive syndrome? Whether the evidence supports the granting of the Termination Petition and the failure to include hearing loss as related to her work injury?
Background:
Claimant was injured in a motor vehicle accident while delivering product to a customer. Employer issued a Notice of Temporary Compensation Payable (NTCP) accepting unspecified injuries to multiple body parts. The NTCP converted to a Notice of Compensation Payable (NCP) by operation of law. Based on the results of an independent medical examination (IME), Employer filed a Termination Petition, alleging that Claimant was able to return to work. Claimant filed a Review Petition, seeking to amend the description of her accepted work injury to include traumatic monaural hearing loss. The WCJ granted the Termination Petition. Regarding the Review Petition, the WCJ found no substantial evidence that Claimant’s hearing loss was related to her motor vehicle accident and concluded that she had failed to demonstrate entitlement to amend the description of her accepted work injuries.
Holding:
There was no indication that the WCJ narrowed the scope of accepted injuries to Claimant. Rather, the WCJ appropriately considered evidence of Claimant’s concussion and post-concussive syndrome within the framework of injuries acknowledged (in broad terms) by the NCP. The WCJ recognized that Claimant’s initial diagnoses included “concussion” accompanied by “headaches, fogginess, light sensitivity, dizziness, nausea, cognitive difficulties and emotional lability.” Thus, the WCJ viewed this injury as within the scope of injuries acknowledged by the NCP. However, the WCJ specifically credited the medical opinion of employer’s expert over that of Claimant’s expert, finding that Claimant was fully recovered from all issues associated with concussion and post-concussive syndrome. Further, the WCJ’s findings are neither arbitrary nor capricious and cannot be reweighed on appeal. As for the Claimant’s Review Petition, there is no assertion by Claimant that the initial NCP was inaccurate or in need of correction. Because Claimant did not seek to correct a material defect in the original NCP but rather sought to amend the description of her injuries to reflect a subsequently arising medical condition, and because there was no obvious relationship between Claimant’s hearing loss and her accident, the WCJ properly placed the burden on Claimant to prove that her hearing loss was related to her motor vehicle accident.
Affirmed
Bruce Sephes v. Nationwide Housing Management and UEGF (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 1, 2022
Issue:
Whether the WCJ’s decision to terminate his benefits is supported by substantial and competent evidence and whether the WCJ’s decision issued a reasoned decision?
Background:
Claimant filed a claim petition stating that he sustained a gunshot wound while working for Employer as a maintenance technician. Claimant also filed a penalty petition claiming that Employer was notified of his injuries and failed to accept or deny his claim within 21 days in accordance with the Act. Following receipt of documentation that Employer did not have workers’ compensation coverage, Claimant filed a notice of claim against the UEGF raising the identical allegations made against Employer in the claim petition. The WCJ concluded that Claimant met his burden of proving that he sustained a totally disabling work injury while working for Employer, and that Claimant had fully recovered from all of his injuries as of September 19, 2019. The WCJ further determined that Employer was primarily liable to Claimant and that based on Employer’s uninsured status, the UEGF was secondarily liable to Claimant for all payments should Employer default on its obligations. The WCJ then terminated Claimant’s benefits effective September 19, 2019.
Holding:
Viewing the evidence in the light most favorable to Employer, as the party that prevailed before the WCJ, particularly the testimony of Dr. Snyder, the WCJ’s decision was based on substantial and competent evidence of record. The WCJ, as the ultimate factfinder, is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. Further, determinations of credibility and evidentiary weight are within the WCJ’s exclusive province. The WCJ fully explained her reasons for accepting the testimony of employer’s expert over that of Claimant and, employer’s expert explained that Claimant’s symptoms were no longer work related.
Affirmed
IMPAIRMENT RATING EVALUATIONS
Christopher Fischer v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 25, 2022
Issue:
Whether Act 111 is unconstitutional and violates the injured workers’ vested rights by crediting Employer with any weeks of total disability paid before Act 111 was enacted?
Background:
Claimant suffered a work-related injury in the course and scope of his employment with Employer. Employer issued a Notice of Compensation Payable accepting the work injury. On June 18, 2020, Employer filed the Modification Petition seeking to have Claimant’s benefits changed from temporary total disability to temporary partial disability based upon an IRE performed on June 3, 2020. Claimant did not offer any medical evidence to challenge the impairment rating. Instead, Claimant argued the Modification Petition should be denied because Claimant had yet to receive 104 weeks of total disability as required by Act 111.
Holding:
Act 111 plainly provides for credit of weeks of temporary total and partial disability benefits previously paid and that the General Assembly explicitly provided the credit provisions were to be given retroactive effect. Claimant’s vested rights’ have not been abrogated by Act 111 because there are reasonable expectations under the Act that benefits may change. Act 111 did not automatically strip a Claimant of any rights; rather, Act 111 provided employers with a mechanism to modify a Claimant’s disability status from total to partial.
Affirmed
Joanne Sobol v. Select Medical Corporation (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided May 18, 2022
Issue:
Whether Act 111 is unconstitutional when applied retroactively to work injuries sustained before its enactment?
Background:
Claimant sustained a work injury. Employer acknowledged liability for the work injury. Following a January 22, 2020 IRE performed in accordance with the 6th Edition (second printing) of the AMA Guides, Employer filed a petition to modify Claimant’s total disability benefits, pursuant to Section 306(a.3) of the Act.
Holding:
It was clear that the General Assembly intended for the 104-week and credit weeks provisions of Act 111 to be given retroactive effect. Also, the Claimant’s vested rights were not affected by the legislation, because there are reasonable expectations under the Act that benefits may change.
Affirmed
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
5/12/2022 – 5/31/2022
DISABILITY – SPECIFIC V. GENERAL JOB DUTIES
Giles v. Board of Trustees, Teachers’ Pension and Annuity Fund
Superior Court of New Jersey, Appellate Division
No. A-0640-20; 2022 WL 1580869
Decided: 5/19/2022
Background:
Appellant, Sharon Giles, appealed from an October 6, 2020 final agency decision by the Board of Trustees (Board) of the Teachers’ Pension and Annuity Fund denying her application for ordinary disability retirement benefits.
Giles was a public-school teacher for ten years in East Orange. On October 27, 2014, Giles fell off a chair while attempting to hang materials in her classroom, injuring her back. On February 4, 2015, Giles applied for ordinary disability retirement benefits. She resigned her teaching position on July 1, 2015. On August 6, 2015, the Board denied Giles’s request for ordinary disability retirement benefits, concluding that she was not totally and permanently disabled from performing her regular and assigned duty as a teacher. Giles appealed, and the matter was referred to an administrative law judge (ALJ).
At the hearing, Giles testified, as did her medical expert, Dr. David Weiss, and the Board’s medical expert, Dr. Arnold Berman. Giles testified she taught a course on the second floor of the school, requiring her to climb stairs several times per day to perform her job assignments. She also had to stand for 5-6 hours and bend while teaching. Dr. Weiss testified that Giles could not perform her duties as a teacher, Dr. Berman reached the opposite conclusion, and stated her low back pain was due to age-related degenerative changes in her lumbar spine.
The ALJ reversed the denial of Giles’s application for ordinary retirement benefits, holding that the October 2014 fall resulted in her injuring her back, which left her totally and permanently disabled from working as a teacher or in any other capacity. The Board filed exceptions and modified the ALJ’s findings of fact related to Giles’s job duties and rejected the determination that she was permanently and totally disabled from employment as a teacher. On October 6, 2020, the Board determined Giles was not eligible for ordinary disability benefits, and the ALJ confused how she specifically taught with the general requirements of being a teacher. They further determined that the specific problems may have been resolved by accommodations, but Giles did not ask for any accommodations. Additionally, the majority of the specific tasks she stated she could not perform were not in her official job description but particular to her specific assignments, and therefore it cannot be said that she is totally and permanently disabled from her general employment as a teacher. Giles appealed, arguing the Board’s decision lacks fair support in the record, amounts to an abuse of discretion, and is arbitrary and capricious.
Holding:
The court stated that it accords deference to the Board’s interpretation of a statute it is charged with enforcing. The court further found that the record had insufficient fact findings to determine whether Giles is totally and permanently disabled from generally performing her job as a teacher as opposed to performing specific and discrete teaching tasks. The court therefore remanded to the Board to reconcile Giles’s inability to perform certain aspects of her teaching job with responsibilities and general duties of a teacher as described in the District’s job description, which also included a category called “other duties which may be assigned by the administrator.”
Remanded
SUMMARY JUDGMENT
Stonnell v. State of New Jersey, et al.
Superior Court of New Jersey, Appellate Division
No. A-3005-18; 2022 WL 1617122
Decided: 5/23/2022
Background:
Appellant, Michael Stonnell was a New Jersey State Police (NJSP) trooper from 1993 until he retired on January 1, 2018. Mr. Stonnell filed a complaint on January 29, 2015, against the State of New Jersey, NJSP, and several individual State Police officers, alleging that they violated the New Jersey Law Against Discrimination (LAD) by creating a hostile work environment and failing to promote him because of his “disability/handicap and/or age.” He also alleged that they violated the Workers’ Compensation Law (WCL) by failing to promote him in retaliation for him asserting rights under the WCL.
After discovery, defendants moved for, and were granted, summary judgment. The judge concluded that plaintiff failed to establish that defendants’ conduct was related to his disability or that it was extreme enough to amount to a change in the terms and conditions of his employment. With regard to the retaliation claim, the judge found that plaintiff suffered no adverse job actions by defendants. The judge did not analyze the LAD claim that defendants failed to promote plaintiff based on his disability.
Mr. Stonnell appealed, stating that the motion record contained sufficient evidence of material factual disputes foreclosing summary judgment on his employment discrimination, hostile work environment, and retaliation claims.
Plaintiff filed two workers’ compensation claims in March 2011. He eventually returned to work on light duty in early 2012. In 2013, he was diagnosed with skin cancer and underwent chemotherapy. Plaintiff took a 3-week medical leave of absence and his doctor recommended that he no longer work in a “marine environment.” Plaintiff was transferred to a unit in West Trenton, which was far from his home. He acknowledged that he was not subject to a hostile work environment once he was transferred. In July 2014, plaintiff blew out his knee and went on stress leave until his retirement in 2018.
Plaintiff alleged the failure to promote claim began in 2011 when he alleges was not promoted because of his physical ailments. However, plaintiff was recommended for promotion in November 2011. Claimant’s supervisor recommended him for promotion in March 2012, though he expressed dissatisfaction with plaintiff’s absences. In December 2013 and December 2014, plaintiff advanced another level to promotional tier two, but he was ineligible for a promotion because of a pending internal investigation initiated in September 2013 because he did not contact the Medical Services Unit regarding leave for treatment for his skin cancer after being directly ordered to do so.
Holding:
With respect to the failure to promote, plaintiff must show that he was disabled or perceived to be disabled within the meaning of the LAD, that he was qualified for the position or rank, that he was denied promotion, and that another person with “similar or lesser qualifications achieved the rank or position.” In order to prove a hostile work environment, a plaintiff has to show: 1) that he is in a protected class; 2) that he was subjected to conduct that would not have occurred but for that protected status; and 3) it was severe or pervasive enough to alter the conditions of employment. In order to state a prima facie case of retaliation under the LAD, a plaintiff must show that: 1) he was engaged in a protected activity known to defendant; 2) he was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two.
Regarding the “failure to promote” claim, it was limited to a denial of a promotion after January 28, 2013 because of his skin cancer and necessary treatments for that condition. The court held that this claim was properly dismissed. The court held that plaintiff was required to produce some evidence that he was not promoted, but someone of similar or lesser qualifications achieved the rank or position, which he failed to do. The court further held that even if he had met that standard, the defendants clearly articulated a legitimate, nondiscriminatory reason for their actions, that plaintiff was not eligible for promotion while under investigation by internal affairs. The burden then shifts to the employee to prove that the reason articulated by the employer was a pretext for discrimination, which plaintiff was unable to do.
Regarding the “hostile work environment” claim, the court held that this was properly dismissed. The court held that plaintiff’s generalized accusations against several officers, even if corroborated, and of disparate levels of attention directed at him for use of sick time, medical leave, stress leave, or workers’ compensation claims were not severe and pervasive conduct in violation of the law. Further, t
Regarding the “retaliation” claim, plaintiff was required to demonstrate that he engaged in a protected activity under the LAD known to defendants and they retaliated against him between January 29, 2013 and the filing of his complaint. The court held that though plaintiff never made a complaint to the appropriate NJSP personnel about a violation of the LAD, plaintiff did seek leave for treatment of his skin cancer in the summer of 2013 as an accommodation for his disability, so defendants knew of that request at some point because it triggered an internal affairs investigation. The court agreed with the motion judge that plaintiff suffered no adverse employment action in retaliation for his leave request. Plaintiff suffered no reduction in rank or pay after his transfer, and the only adverse consequence of the transfer is that it was farther from his house. Further, the transfer was initiated by plaintiff’s doctor’s recommendation that he no longer work outdoors. Therefore, plaintiff’s claim that the transfer was punishment is not sufficient to establish a material disputed fact demonstrating that defendants’ legitimate reason was merely a pretext for the underlying discriminatory motive.
Affirmed