By:
Attorney Gary E. Adams & Attorney Barry A. Dratch
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.