By:
Attorney Gary E. Adams
The New Jersey Worker’s Compensation Act requires payment without regard to fault, to an employee who sustains workplace injuries. In exchange for this remedy, the employer is generally immune from liability and the employee surrenders all other forms of relief, including the right to sue an employer. NJSA 34:15-8 provides that the employees right to worker’s compensation benefits “shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof then as provided in this article.”
The "exclusive remedy” provision of the Act is a compromise between the employer and the employee. The exclusive remedy is designed to maintain the balance of sacrifices between employer and employee in the substitution of no-fault liability for tort liability. The Supreme Court in Dudley v. Victor Lynn Lines, Inc. 32 NJ 479, (1960) explained that “by accepting the benefits of the Act, an employer assumes absolute liability but gains immunity from common law suit, even though he was negligent, and the employee forgoes his right to sue his employer for negligence, but gains a speedy and certain, though smaller measure of damages for all work-connected injuries, regardless of fault.”
The second paragraph of Section 34:15-8 states the limited exception to the exclusivity rule. Under this provision an employee may sue an employer for any behavior, act or omission that is an “intentional wrong”.
Recent challenges to the exclusivity provision of the New Jersey Worker’s Compensation Act have defined and diminished the immunity from common-law suit, which had been afforded employers since the advent of the Act. These challenges have focused primarily on the limited intentional tort exception to the exclusivity rule as set forth in NJSA 34:15-8. Under the terms of the exclusivity provision, an employee may bring an action against his employer at common law for any act or omission which is an “intentional wrong”. It is the definition of intentional wrong that is at the heart of these controversies. Recent case law shows how courts will attempt to maintain a balance of sacrifices between employer and employee in determining what conduct constitutes intentional wrongdoing by an employer.
A 1985 case, Millston v. E.I. duPont Nemours, involved an employer who deliberately exposed its employees to asbestos and fraudulently concealed existing occupational diseases from employees. In that case, the Court developed the “substantial certainty” rule. The court ruled that not only must the court find that the employer acted deliberately, but it must also find that the actual injury incurred was a substantial certainty to occur.
A recent case discussing the “intentional wrong” exception to the exclusivity provision is Calvano v. Federal Plastics Corp. L-492-07, 2010 WL 3257784 (N.J. Super. A.D. Aug. 18, 2010). In that case, the plaintiff was injured while cleaning a vertical blender while the machine was off. Plaintiff opened a small door on the blender and inserted his hand to remove debris hanging from one of the blades of the blender. While his hand was in the machine the machine powered on and severed the lower half of plaintiff’s arm. Plaintiff sued alleging employer did not install an interlocking safety device. The trial court denied that this was an intentional wrong and dismissed the case. The appellate court affirmed the trial court decision. The Court explained, “ the meaning of intent is that the actor desires to cause consequences of his act or it is substantially certain that such consequences will result from his actions.” The appellate Court did not believe the employer’s actors met this standard to raise it to the level of “intentional wrong”.
The Calvano court relied on Laidlow v. Hariton Machiner Co., 170 NJ 602, (2002) in which the New Jersey Supreme Court set forth a two prong test to be utilized by Judge’s who must consider and decide summary judgment motions based on the exclusivity provision. The Court determined that a trial court must make two separate inquiries. The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee’s allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Worker’s compensation bar.
The Calvano court applied the two-prong test, and found that plaintiff could not satisfy the Laidlow rule. Under the first prong, the conduct prong, the court found it significant that the only prior incident involving the vertical blender was 25 years prior and was much less severe than the injury suffered by plaintiff. Given this innocuous history, the Calvano court concluded the facts did not allow a finding that the injury to plaintiff was a substantial certainty.
Under the second prong, the context prong, the Calvano court found that although regrettable, defendant’s failure to install an interlock device prior to plaintiff’s accident was not the type of circumstance which the legislature contemplated would expose an employer to common law negligence action. The Court explained that the employer did not direct or suggest to plaintiff to skip safety steps. Plaintiff’s injury and the circumstances surrounding it were “part and parcel of everyday industrial life: and “plainly within the legislative grant of immunity”.
In a recent unreported case, Medwin Soto v. ICO Polymers North America, a three- judge Appellate Division panel allowed a plaintiff to bring a civil action against his employer, stating that there was enough evidence to indicate that the company failed to fix safety violations at its Asbury facility, that eventually led to an explosion that severely injured the employee, Medwin Soto.
ICO Polymers is a company that pulverizes plastic pellets into powder, a process that creates a fine powder that is combustible. The company sustained an initial fire in 2007. which led to imposition of a $7500 fine by OSHA. After that fire, the managers took little or no action to mitigate the powder accumulation. There was clear evidence presented at trial that the ICO managers failed to fix electrical problems that led to the earlier fire. Soto was injured in a second explosion of July 26, 2008. At the time, there were no sprinkler systems and no exit door. Soto sustained second and third degree burns over 12 percent of his body.
Soto was awarded worker’s compensation benefits, but nevertheless filed a civil claim against ICO. Normally when one receives workers compensation benefits, he is barred from filing a lawsuit against the employer. The trial Judge dismissed claim against ICO on summary judgment and Soto appealed.
The Appellate Court stated that “We are satisfied that a rational jury can find that at the time of the accident, defendant was aware that the conditions at the Asbury facility exposed employees like plaintiff to a high risk of serious injury or death. “
One of the Judge’s on the panel, Judge Fuentes, explained that there is an exception to the exclusivity rule when the employer acts deliberately. He stated that, “A jury can find defendant engaged in a cost-benefit analysis and decided it was more economically sound to place plaintiff at substantial risk of serious injury or death than to repair the … facilities electrical system.”
These decisions make it clear that an employer cannot act in such a manner so as to intentionally put their employee in danger, while knowing that it is a virtual certainty that the employer’s actions will lead to the very injury suffered by the employee.
While, as a general rule, an employee, can only pursue worker’s compensation and cannot sue his employer as a result of a work injury, this exclusive remedy can be overcome if the injury was the result of the employer’s intentional wrong. The courts have stated that the intentional wrong test is met where:
1) the employer knows that its actions are substantially certain to result in injury or death to an employee; and
2) the resulting injury is
a) more than a fact of life of industrial employment; and
b) beyond anything the legislature intended the Worker’s Compensation Act to immunize.
If you were injured at work and believe your employer acted intentionally knowing with certainty that their actions or omissions would lead to serious injury you may have both a worker’s compensation claim and a civil lawsuit against your employer. The question of whether the employer committed an intentional wrong, which would allow a civil lawsuit is fact specific. Therefore it is important that you consult with an attorney experienced in worker’s compensation and personal injury matters.