Fw: Mastectomy Patients Held 'Amputees' Under New Jersey Law

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Thanks to & Myrl,

MM

Martha Murdock, Director

National Silicone Implant Foundation | Dallas Headquarters

" Supporting Survivors of Medical Implant Devices "

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----- Original Message -----

From: " Myrl Jeffcoat " <myrlj@...>

<myrlj@...>

Sent: Wednesday, July 17, 2002 12:16 AM

Subject: Mastectomy Patients Held 'Amputees' Under New Jersey Law

> Thank you for sending the following article. . .Very interesting

> " concept. "

>

> Myrl

>

> ----

>

> http://www.law.com/jsp/article.jsp?id=1024078992064

>

> Mastectomy Patients Held 'Amputees' Under New Jersey Law

>

> Henry Gottlieb

> New Jersey Law Journal

> 07-16-2002

>

> Lawyers who represent disabled plaintiffs in discrimination cases are sure

> to welcome a New Jersey Appellate Division ruling that says mastectomy

> patients are amputees and therefore a protected class under the state Law

> Against Discrimination.

>

> Middlesex County, N.J., Superior Court Judge Stroumtsos ruled in

> 2000 that the LAD did not protect a mastectomy patient who had been

> cancer-free for six years. He dismissed the plaintiff's claim that her

> employer failed to make accommodation for her disability and denied her a

> promotion.

>

> In a July 3 decision reinstating the claim, a three-judge panel ruled that

a

> mastectomy is an amputation that qualifies as a handicap under the LAD.

>

> That had seemingly been decided in Blume v. Denville Township Board of

> Education, 334 N.J. Super. 13 (App. Div. 2000). In that case, though, the

> plaintiff was being treated for a recurrence of her cancer at the time she

> was discharged from her job. Stroumtsos reasoned that Blume did not apply

to

> plaintiff Gertrude because she was cancer-free.

>

> But Judge Lorraine said in the appellate opinion, " The fact that

she

> suffered no recurrence and that she had minimal limitations on her

physical

> capabilities does not disqualify her from protection under the LAD. "

Judges

> Edwin Stern and Collester Jr. joined in the ruling, v.

> Middlesex County College, A-3041-00T2.

>

> ' lawyers, Beth Haiet Meyer, of counsel to West Orange, N.J.'s

Alpert

> Norton & Bearg, and name partner Norton, say the

opinion

> dispels any notion that a claimant who has had a mastectomy must have a

> recurrence to make a prima facie case of discrimination.

>

> " You are an amputee and fall within the protected class under the LAD, "

> Haiet Meyer says.

>

> In terms of how the ruling affects plaintiffs with other forms of cancer,

> Norton says, " The court had an opportunity to draw a line in the sand and

> say that if your cancer is in remission you are no longer covered by the

> act. That didn't happen. " As a result, he says, the remission issue is

> likely to be treated case by case in nonmastectomy cases.

>

> , who taught counseling at Middlesex County College starting in

1983,

> claimed her disability from the 1994 mastectomy affected her ability to

> perform some physical tasks and that the college failed to make

> accommodations or promote her.

>

> The college, defended by lawyers at town, N.J.'s ,

> presented evidence that accommodations were made and that wasn't

> promoted because of performance.

>

> The July 3 ruling gives the opportunity to pursue her claim in the

> trial court, but it did not give her everything she wanted. For lack of

> evidence, the panel affirmed dismissal of her allegations of intentional

> infliction of emotional distress.

>

> The panel also said that while certified she was unable to clean

her

> home, iron or lift heavy objects, she did not explain how this affected

her

> ability to perform her job responsibilities. Nor did she articulate

specific

> requests for physical accommodations.

>

> Norton notes, however, that the reinstatement reopens discovery on the

2000

> claim.

>