State News

A DOUBLE-EDGED SWORD

By Jeffrey D. Snyder, Esquire

A recent, Court ruling in County of Allegheny v. WCAB (Parker), recently decided in 2016, held that attorneys’ fees that are awarded on the basis of unreasonable contest are considered to be litigation costs, that must be reimbursed by a Claimant Attorney, if the unreasonable contest of attorneys’ fees were paid pursuant to a denial of Supersedeas, on a prior Appeal, where the Employer ultimately prevailed that is contests of the Claimant’s claims and Petitions were reasonable.

Factually, this case involved the 80 year old Claimant sustaining a work-related shoulder injury in 1993.  In 2007, the Claimant’s compensation benefits were suspended, as a result of the granting of a Suspension Petition.

Appealed to the Workers’ Compensation Appeal Board, the underlying WCJ’s Decision was reversed, and remanded for an assessment of Counsel fees on the basis that the Appeal Board believed that the Employer’s contest was unreasonable, and that the Claimant was entitled to an award of unreasonable contest of attorneys’ fees under Section 440 of the Act.

The Board, in its infinite wisdom, believed it was bound by a prior 2004 Decision that had denied a Suspension of the Claimant’s compensation benefits.

On the remand, the WCJ did award Counsel fees on the basis of unreasonable contest, with the finding of an unreasonable contest then affirmed by the Appeal Board, although, it actually changed the amount of the unreasonable contest, increasing in favor of the Claimant and against the Employer.

Undaunted, the Employer appealed to the Commonwealth Court, with the Commonwealth Court concluding that the Appeal Board had been mistaken in relying on collateral estoppel, and that it further committed a legal error in awarding counsel fees on the basis of an unreasonable contest, given that the Employer had ultimately prevailed, with the Commonwealth Court sustaining the suspension of compensation benefits in deciding the underlying issues on Appeal.

Applying for Supersedeas Fund reimbursement, as the unreasonable contest attorneys’ fees had been assessed in the amount of $14,750.00, the Supersedeas Fund denied the reimbursement request, on grounds that the Act only allows it to reimburse for medical and wage loss benefits, not for litigation costs.

The Commonwealth Court then explained that to allow a situation where unreasonable contest attorneys’ fees are paid following the denial of Supersedeas on an Appeal, and the Claimant does not prevail with respect to the underlying case and issues, would constitute an unjust enrichment to Claimant’s Counsel, regardless of any intent to distribute the funds to the Claimant.

As a recommendation, the Commonwealth Court suggested that there be an agreement to stay an Appeal in similar circumstances, so that fund disbursements are not issued prior to the issues being ultimately decided.

The Commonwealth Court further noted that the procedure for seeking reimbursement is to file a Petition for Refund, filing the same with the Bureau for assignment to a Workers’ Compensation Judge.  This mechanism appears to extend to all litigation costs that include unreasonable contest of attorneys’ fees, where the issue is ultimately decided in favor of the Employer, that the Employer’s contest in the underlying claim was reasonable, and should not have been subject to an unreasonable contest attorney fee Award.

Finally, in County of Allegheny, the Commonwealth Court remanded the case for the Petition for Refund to be granted, in the amount of $14,750.00 in unreasonable contest attorneys’ fees that the Employer had paid to Counsel, ultimately requiring Counsel to reimburse the Employer for the same fees.

By way of a takeaway, this is an obviously favorable Decision for Employers and Insurers, although, in practice, it has been our experience that unreasonable contest attorneys’ fees, on Appeal, usually result in Supersedeas being granted, meaning that the Employer or Insurer does not become obligated for paying the unreasonable contest attorneys’ fees during the pendency of an Appeal of factual and legal issues decided in a Decision by a Workers’ Compensation Judge or by the Appeal Board.

ConnorsO’Dell LLP

Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

An employee works regularly in Cherry Hill, N.J. but three or four times a year is required to work at the company’s north Jersey location in Parsippany.   On the way to the Parsippany office, the employee is in a car accident and suffers serious injuries.  The employer gets the claim and confers with the carrier and defense counsel.  The question is was the employee on a special mission or is this accident barred by the going-and-coming rule, now known as the premises rule?

This issue arises quite frequently in New Jersey workers’ compensation.  A technical reading of the law leads to the conclusion that the claim is barred.  The employee is just on her way to work, even if it is not the normal place of employment.  Counsel for the employee will argue that this does not seem fair at all, but as former Supervising Judge of Bergen County, The Honorable Ray A. Farrington, used to say, “Fair is a place where people come together to see who can grow the biggest watermelon.  Let’s see what the law says.”

Here is what the statute has to say:

Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer.

The key word in the statute as far as a special mission is concerned is “away” from the employer’s place of employment.   In this case, the employee is not required to be away from the place of employment at all.  It is just a different place of employment.  An employer could have multiple places of employment where an employee goes to work from time to time, and if that is the case, the employee’s journey to these distant offices is not covered.   It is only a special mission when the employee is required to be away from the place of employment.

This point was made by our Supreme Court in Novis v. Rosenbluth Travel, 138 N.J. 92 (1994).  The petitioner in that case worked in the New Jersey office of the travel company but was sent to the branch office in Connecticut to work for a period of time.  She stayed in a hotel in Connecticut and then commuted from the hotel to the branch office for several days.  One of those days she got out of her car and slipped and fell on the sidewalk on property leading from the parking lot to the building containing the employer’s branch office.  The employer did not own or control the parking lot and denied the claim.

Petitioner argued that this was a special mission.  She worked in New Jersey almost all the time and was sent to the branch office in another state to work for a short period of time.  The Supreme Court disagreed with petitioner.  It analogized her hotel to her home and held that the drive from her hotel to the branch office was her normal commute to work.  Therefore her injury was not compensable because she had not yet arrived inside the work premises of the branch office.

This is the leading case in New Jersey for multiple employer work sites, and practitioners have both this case and the statutory language above for guidance on this increasingly common issue.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

 The annual Minnesota Workers' Compensation Symposium will be held at the Marriott Hotel, Brooklyn Park, MN, on May 11, 2017. This is the largest and most comprehensive Workers' Compensation seminar in Minnesota. The topics will be diverse, with presentations by medical, rehabilitation, psychological experts, as well as practicing attorneys.

Cousineau, Waldhauser, & Kieselbach, P.A. attorneys Richard Schmidt and Jennifer Fitzgerald will be presenting on the topics of settlement and settlement issues.  

For further inquiries, please contact F&P Principal, Bert Randall, at (410) 230-3622 or by email atarandall@fandpnet.com.

I.        New Maryland Benefit Rates

a.    Effective January 1, 2017, the following are the maximum benefit rates for Maryland disability benefits:

                                  i.    State Average Weekly Wage - $1,052

                                ii.    Permanent Disability Under 75 Weeks - $176/week

                               iii.    Permanent Disability Between 75-249 Weeks - $351/week

                               iv.    Permanent Disability More than 250 Weeks - $789/week

II.        Regulatory Changes

a.    Responsibility of Insurers

                                  i.    The Commission adopted amendments to Regulation 14.09.12.02B. The purpose of the amendment is to alter the time period from 30 to 45 days within which an insurer must serve a specified notice on an employer and file a copy of the notice with a specified individual if the insurer is canceling or refusing to renew a workers’ compensation insurance policy before its expiration.

III.        Recent Cases in Workers’ Compensation

a.    Ordinary disability retirement benefits and Workers’ Compensation Benefits for partial disability are “similar benefits,’ subject to a statutory offset.

              &nnbsp;                   i.    Zakwieia v. Baltimore County, Board of Edu.,No. 2492 (Feb. 3, 2017).

1.    The Court of Special Appeals in Zakwieia addressed the issue of whether § 9-610 of the Labor & Employment Article entitled the Commission to offset Claimant’s workers’ compensation benefits for partial disability with her ordinary disability retirement benefits.

2.    The crux of this decision rests on the Court’s clarification that the purpose of the statute is to prevent double recovery for injured workers covered by both a disability pension plan and workers’ compensation.. According to the Court, “similar” refers to the nature of the benefit awarded to the employee, not the nature of the underlying injury. Thus, moving forward, workers’ compensation benefits for permanent partial disability benefits will constitute “similar benefits” to ordinary disability benefits, and will be subject to a statutory offset.

b.    Subsequent injuries do not necessarily preclude entitlement to Partial Disability Benefits.

                                  i.    Electric General Corp. v. Labonte,229 Md. App. 187 (2016).

1.    In the case of Electric General Corp. v. Labonte, the Court of Special Appeals determined whether a claimant’s subsequent injury represented an intervening accident that broke the causal connection between the claimant’s work accident and current complaints.

2.    The case provides guidance as to the effect of a subsequent intervening accident on a claimant’s entitlement to additional workers’ compensation disability benefits.Labonte suggests that a claimant’s subsequent injury does not necessarily preclude an employer and insurer from all liability, at least where permanent partial disability benefits are concerned. As a practical matter, however, the Commission may still weigh the severity of the subsequent injury and the nature of the treatment involved when apportioning an award of disability. Moreover, there is still clear authority that there is no further liability for a subsequent injury where temporary total disability benefits are concerned.

c.    The going and coming rule and its exceptions are not applicable to injuries that arise before an employee embarks on any work-related journey.

                                  i.    Prince George’s County, Maryland v. Proctor,228 Md. App. 579 (2016).

1.    The Court of Special Appeals considered whether injuries sustained on a claimant’s own front porch, while he was off-duty, and while he was not performing any police duties, arose out of and in the course of employment. 

2.    This case clarifies that the time, place and circumstances of the accident in relation to the employment are determinative of whether an employee’s injuries arise out of and in the course of employment. Accordingly, whereby where injuries are sustained prior to embarking on any work-related journey, the “going and coming rule” is not what bars the employee’s claim. It remains to be seen, however, whether any exception to that rule might apply for injuries arising before an employee embarks on a work-related journey.   

d.    An injured sole proprietor’s Average Weekly Wage (“AWW”) should be calculated using the net profit, rather than the gross earnings, of a sole proprietorship.

                                  i.    Long v. Injured Workers’ Insurance Fund, et al,225 Md. App. 48 (2016).

1.    The Court of Special Appeals determined whether an injured sole proprietor’s AWW should be based upon the income of the sole proprietorship, after deducting business expenses, or upon the gross profit of the sole proprietorship, without considering business expenses.

2.    This case explains the difficulties in using gross pay for the purposes of determining an injured sole proprietor’s AWW under section 9-277(b) of the Workers’ Compensation Act. The Court notes that failing to factor unreimbursed business expenses into a sole proprietor’s “gross earnings” would result in a windfall and would not be an accurate representation of the injured worker’s actual earnings.

e.    Employers and insurers that pay an award, which does not provide for attorney’s fees, are protected from subsequent claims for such fees.

                                  i.    Prince George’s County v. Minor,227 Md. App. 233 (2016).

1.    The case of Prince George’s County v. Minor dealt with whether employers and insurers are obligated to pay an approved attorney’s fees that are not provided for in an award.

2.    This case emphasizes the principle that the Worker’s Compensation statute and regulations “will only protect those attorneys who protect themselves.” A claim for attorney’s fees by an attorney representing a workers’ compensation Claimant is not a claim against either the Commission or the employer/insurer. Employers and insurers are obligated to pay an approved attorney’s fees only out of compensation awarded to the Claimant where there is an attached lien for such fees, not out of personal funds. Unless, however, there is a failure to respect a lawfully attached lien.

f.     Under the Free Transportation Exception to the “Going and Coming Rule,” injuries sustained during the employee’s commute arise out of and in the course of employment even when the free transportation furnished by the employer is not being used.

                                  i.    State of Maryland v. Okafor,225 Md. App. 279 (2015).

1.    In State of Maryland v. Okafor, the Court of Special Appeals discussed the extension of the free transportation exception to the “Going and Coming Rule” in circumstances involving personal injuries during an employee’s commute to work in a person vehicle.

2.    This case shows that once there is an obligation to provide free transportation, an employee’s workday commences when his or her commute to work begins. Thus, regardless of whether the employee is using the transportation provided, injuries sustained during the employee’s commute arise out of and in the course of employment on the basis of the free transportation exception. 

Employers must carefully view job descriptions because ADA law suits often turn on the wording of those job descriptions.  In Stephenson v. Pfizer, 2016 U.S. App. LEXIS 3863 (4^th Cir. 2016), a long-time sales person for Pfizer developed vision problems which disqualified her from driving.  Stephenson had been an extremely successful sales representative who had been inducted into Pfizer’s “Hall of Fame” for sales representatives.  She would spend eight of her ten hours each day meeting with physicians in their offices to discuss the merits of certain pharmaceutical products. She had been doing this successfully since 1984, and Pfizer gave her a car to travel from her home to sales meetings.

In 2008 Stephenson developed a vision problem which caused her to lose 60% of the vision in her left eye.  Nonetheless, she was able to drive without accommodations.  However, in 2011 the condition afflicted her right eye as well, causing the loss of 60% of the vision in that eye and disqualifying her from driving.  On October 27, 2011 Stephenson asked Pfizer to provide her with a driver to take her to sales meetings.  She researched pricing estimates from potential drivers and shuttle services.  Pfizer said that request was inherently unreasonable, and the company encouraged Stephenson to move to another position in the company which did not require driving.  Stephenson declined that offer and brought suit under the ADA.

The Pfizer job description for sales representative did not specifically list driving as an essential job function.  In spite of this, the district court granted summary judgment to Pfizer, ruling that driving was an essential function of the job whether or not it was included in the job description.  The court rejected Stephenson’s argument that travelling was really the essential function.

On appeal the Fourth Circuit Court of Appeals noted that the job description for Stephenson’s position did not require that the sales rep have a driver’s license.  Discovery showed that there were postings for seven other similar positions in 2014; five postings did not mention possessing a driver’s license while two did mention it.

The Appeals Court began by observing that the ADA does not require an employer to reassign any essential job function nor require the employer to hire another employee to make reasonable accommodation.  However, the Court said that Stephenson was entitled to a trial in this case on the issue of whether driving was an essential job function.  The Court said:

If driving is an essential function of her sales position, Stephenson – who cannot drive no matter the accommodation – is not qualified under the ADA and her claim fails as a matter of law.  On the record before us, however, summary judgment is not warranted because there is a genuine dispute of material fact as to whether the essential function at issue is driving or travelling.  That factual issue is for a jury to resolve.

The Court explained that an employer must accommodate an employee with a disability who is qualified, which means one who is able to perform the essential functions of the job.  So the threshold issue in this case came down to whether driving or travelling is an essential function.  Had the employer included in Stephenson’s job description a statement that driving was an essential job function along with the possession of a driver’s license, there is no doubt that Pfizer would have won this case on appeal.  Courts generally defer to the employer on what is or what is not an essential job function, but when an employer says one thing and the job description says another, that inconsistency hurts the employer’s position.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

On February 15, 2017 Governor Chris Christie signed a new law requiring health insurance coverage for treatment of substance abuse disorders and certain restrictions on the prescription of opioids and other Schedule II drugs.  The bill is touted as one of the most aggressive in the nation, and compensation practitioners are asking what will be the impact on New Jersey workers’ compensation?

There are several key provisions contained in this bill that will have an impact on workers’ compensation practitioners.  First, the bill sets time limits for how long prescriptions may be written.  This aspect of the bill will directly impact workers’ compensation physicians.  The initial prescription for an opioid cannot exceed a five-day supply for acute pain. After the fourth day, upon consultation with the medical provider, the physician can issue a subsequent prescription up to a 25 day supply.  The bill does not say whether “patient consultation” means an in-person visit or a telephone call.  However, emergency regulations are being promulgated on a number of issues right now, and this is likely to be one area addressed in those regulations. It should be noted that the language of the bill focuses on “acute” pain patients, and it seems clear that this language does not apply to chronic pain patients.

The bill also requires the provider to take steps that many workers’ compensation pain management doctors in New Jersey already perform:

§  Taking a thorough medical history, including the patient’s experience with non-opioid medications and non-pharmacological pain management as well as substance abuse history;

§  Conducting and documenting a physical examination;

§  Developing a treatment plan focused on the cause of the patient’s pain;

§  Accessing the Prescription Monitoring Program, which is an invaluable resource that tracks all prescriptions for narcotics and opioids from all providers going back several years.

When physicians renew prescriptions beyond the five-day period, they must document the rationale for the issuance of the subsequent prescription. The bill recites that prior to the initial and the third prescription, the practitioner must discuss with the patient the risks associated with the drug being prescribed, including risks of overdosing, the reason why the prescription is necessary, and alternate modes of treatment.

Most New Jersey pain management physicians in workers’ compensation already have pain management agreements or contracts entered into between the patient and provider, setting forth the terms of treatment.  The bill now requires such agreements to be executed at the time of the third prescription of an opioid drug.  These pain management contracts are crucial because they establish what the patient must do to continue to obtain opioid medications and what must not be done.  Urine samples and other measures are generally part of these pain management agreements.

The new bill creates staged and mandatory counseling with documentation designed to assure the public that pain medications are seriously evaluated by the prescribing physician.  If the controlled dangerous substance or other prescription opioid is continuously prescribed for three months or more, the practitioner must, a minimum of every three months, review the course of treatment as well as any new information about the etiology of the patient’s pain and progress.  Most importantly, the physician must assess prior to every renewal whether the patient is experiencing problems associated with physical and psychological dependence and then document the results of the assessment.  The physician must consider stopping the use of the controlled substance, decreasing the dosage or trying some other drug or treatment modality to reduce dependency.

Workers’ compensation carriers and third party administrators can expect greater detail in reports generated by pain management physicians as a result of this legislation.  These reports should focus on the standards outlined above, particularly whether the patient is at risk of or becoming dependent on opioids and whether some other modality should be used.  Employers, carriers and third party administrators will certainly take note of those physicians who expend time thoroughly documenting these issues and explaining the rationale for their recommendations.

The bill also recites language from guidelines issued by the New Jersey Office of the Attorney General on March 1, 2010 regarding the limitation of Schedule II controlled dangerous substances to quantities which do not exceed a 30-day supply.   That guidance is now incorporated in this bill and does allow a physician to issue multiple prescriptions for up to a 90-day supply with renewals on a 30-day basis.

This bill may have the effect of enhancing the use of pain management physicians who eschew the use of opioids and prefer instead to do interventional modalities, such as injections and blocks.  There are a variety of pain management doctors in New Jersey, and not all of them prescribe opioids or Schedule II controlled dangerous substances.  Some prefer other modalities precisely because of problems associated with opioids.

One other central aspect of this bill pertains to health insurance carriers which now must provide coverage for treatment of those with substance abuse disorders.  That aspect will not have much impact at all on workers’ compensation because employers, carriers and third party administrators have been paying for many years for reasonable and necessary care of those with work-related substance abuse disorders (usually from addiction to authorized prescriptions of opioids and prescription narcotics).  Many workers’ compensation cases involve workers who have become addicted to opioids used in connection with worker injuries, requiring admission to licensed programs designed to wean them off narcotics.

For health insurance carriers, this new coverage provision is important because it mandates payment of benefits for the first 180 days per plan year of inpatient and outpatient treatment of substance abuse disorders, if such treatment is deemed medically necessary by the covered person’s physician, licensed psychologist, or psychiatrist.

Without a doubt, this legislation highlights a growing problem in the State of New Jersey in connection with high numbers of patients who have become addicted to and dependent on opioids to function in their lives.  Without intending to do harm, some pain management doctors have in the past effectively traded acute pain relief for long term dependency and addiction.  That is less likely to occur in the future on account of this legislation.

The undersigned will keep readers posted as the new emergency regulations emerge on this important legislation.  The effective date of this legislation is May 16, 2017.   My thanks to our librarian Francine Viden for her assistance on research of this and prior legislation.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Tom Kieselbach will present the 2018 class of Fellows  at the College of Workers’ Compensation Lawyers Induction Dinner in Phoenix on March 18, 2017.  The College was created to honor lawyers nationally for their excellence. Fellows must possess the highest professional qualifications and ethical standards. Fellows have to demonstrate scholarship, advocacy skill, civility, and the respect of their peers.  

Tom was selected as a Charter member of the College in 2007. He is currently on the Board of Governors and serves as Chair of the Nominating Committee. Mark Kleinschmidt was selected as a Fellow in 2011, but unfortunately will not be attending the induction dinner.

The College’s annual meeting and Induction dinner are held in conjunction with the ABA/WC annual seminar.

For years our firm and its attorneys have been honored by our peers for excellence. In 2017, Jim Waldhauser, Tom Kieselbach, Mark Kleinschmidt, Dick Schmidt and Tom Coleman were once again included inBest Lawyers in America. Our Workers’ Compensation practice group at Cousineau McGuire (now Cousineau, Waldhauser & Kieselbach, P.A.) was selected as a Tier one practice group byU.S. News and World Reports/Best Law Firms in America.

We are proud of our years of quality service and thank our peers for recognizing our firm and attorneys.

Injured workers continue to attempt to sue their employers in civil court for bodily injury no matter how often our courts make clear that such suits are barred unless intentional harm can be proved. For every successful claimant who meets the intentional harm standard, there are thousands whose cases are dismissed on summary judgment.  Such is the case of Madkiff v. Frazier-Simplex, Inc., A-1328-15T1 (App. Div. February 23, 2017).

Mr. Madkiff worked for Frazier-Simplex and was injured on January 15, 2010 while he and other workers were trying to demolish a glass furnace at the Alcan Glass plant.  Jackhammers were being used to break up a dense fire brick material that lined the glass furnace.  The jackhammering process created debris the size of boulders. The workers were using a mechanical hoist to remove the boulders, but it was taking more time this way.  So the foreman told the workers to stop using the hoist.  Plaintiff Madkiff and others complained to the foreman that “somebody is going to get hurt lifting these boulders.” The foreman said “do it or we will get somebody else to do it.”

Plaintiff began trying to manually remove the debris.  He lifted a boulder and felt sudden pain in his neck and back that incapacitated him from working.  He said that he knew the boulder weighed between 150 and 200 pounds but thought he could lift the boulder.  When asked if he thought the foreman was intending to injure him by telling him not to use the mechanical hoist, plaintiff said “I don’t know.”

Mackiff brought a workers’ compensation claim and also sued his employer contending that the employer’s action met the exception under the exclusive remedy rule in New Jersey because it constituted intentional conduct.  The trial court dismissed his suit, and plaintiff appealed.  The Appellate Division explained that plaintiff’s claim would be barred unless he could prove that his employer had the subjective intent of injuring him, or engaged in intentional conduct with a substantial certainty that plaintiff would be injured.

The Court distinguished between reckless conduct and intentional conduct.  “Plaintiff cites his testimony that he and some co-workers told the foreman ‘somebody is going to get hurt’ lifting boulders and that the foreman told them to do it anyway.  That did not show the foreman deliberately intended to injure plaintiff.”  The Court said that mere knowledge of a strong possibility of a risk does not prove substantial certainty.  The Court said, “Plaintiff proffered no evidence, expert or otherwise, that it was virtually certain he would be hurt, let alone that the foreman or defendant was aware of that virtual certainty.”

For his part, plaintiff argued that the foreman’s instructions to stop using the mechanical hoist amounted to intentional removal of a safety device.  But the Court did not buy this argument.  “The mechanical hoist was not a ‘safety device’ on a dangerous machine.  Rather, like a pulley, lever, shove, or forklift, it was a tool used by workers to accomplish their tasks.”  In the end the Court said that “it was a common fact of life for laborers in the construction and demolition industry to injure their necks and backs when lifting heavy objects.”   Plaintiff could not show that his injury was “more than a fact of life of industrial employment.”

Employers will continue to win suits like this for intentional harm because the New Jersey legislature fully intended to make workers’ compensation the exclusive remedy for workers who suffer injuries arising out of and in the course of employment with only truly rare exceptions.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.