State News : New Jersey

Dr. Leon Coursey worked as an Assistant Professor in the Department of Physical Education at the University of Maryland Eastern Shore.  He began there in 1972.  Students logged complaints about Dr. Coursey in 2004, and several colleagues registered complaints in 2007.

In 2009, 12 students reported that Dr. Coursey exhibited erratic behavior in the classroom.  He yelled at a student, and he complained about students who questioned his grading methods.  He was alleged to have told students that he was the most senior faculty member and “no one could touch him.” Another student said that Dr. Coursey had gone berserk.  Four students made written complaints about him, and one adjunct faculty member reported that Dr. Coursey came up behind her while she was sitting at her computer, put his arms around her and stuck his tongue in her ear.

The University suspended Dr. Coursey on February 3, 2009 and later required him to undergo a fitness-for-duty examination.  Dr. Coursey refused to attend the fitness exam.  Instead, he filed a discrimination complaint with the EEOC on October 29, 2009. 

On May 25, 2010, the University President filed charges to have Dr. Coursey terminated for professional misconduct.  On November 4, 2010, the Faculty Grievance Board unanimously voted in favor of termination.  Dr. Coursey contested the termination and appealed to the University President, who upheld the termination. Further appeals were to no avail, leading Dr. Coursey to file suit under the ADA.

First, the Court dealt with the argument by Dr. Coursey that he was “regarded as” having a disability because the University requested tat he undergo a fitness examination.  The Court rejected this position:  “[A]n employer’s request for a medical examination, standing alone, is not sufficient to establish that the employer ‘regarded’ the employee as disabled.”  (citations omitted).

In response to the argument that the University unlawfully demanded that Dr. Coursey submit to a fitness for duty examination, the Court said an employer has a right to such an examination if the medical examination is consistent with business necessity.  The Court said, “. . . Dr. Coursey’s abusive and erratic behavior toward students and staff gave (the University) ample reason to seek further information about his ability to continue performing the essential functions of his employment.”  It added that campus safety is a core concern of any university.  Lastly, the Court found that there was no causal link between his October 2009 EEOC complaint and the University’s initiation of proceedings to terminate him in May 2010 since too much time elapsed between these two events. 

This case can be found at Coursey v. University of Maryland Eastern Shore, Civil No. CCB-11-1957 (D. Md. April 30, 2013). 

     In a piece of special legislation, Governor Christopher Christie signed into law Senate, No. 1469 on June 13, 2013.  The bill pertains to dependency benefits for surviving spouses of certain fire and police personnel who die in the line of duty.

    Under current law in New Jersey, surviving spouses are entitled to dependency benefits of 70% of wages but such benefits end on remarriage.  In the event that remarriage occurs during the first 450 week period, the spouse is entitled to receive the remainder of the compensation which would have been due the spouse had the spouse not remarried, or 100 times the amount of weekly compensation paid immediately preceding the remarriage, whichever is the lesser.

    The new law treats a surviving spouse of  a deceased member of the State Police or member of a fire or police department or force differently than all other surviving spouses in New Jersey.  For example, under existing law a surviving spouse of an employee who earned $1,200 per week and died in 2013 in the course of employment would receive the maximum rate of $826 per week.  If the spouse remarried during the first 450 weeks, for example at week 300, the spouse would receive 100 times that rate or $82,600 as the final payment.  Benefits would then terminate on account of remarriage.

    The new legislation exempts surviving spouses of state police, fire fighters and police officers from the so-called “remarriage penalty.”  In the example above, the surviving spouse would continue to receive $826 per week for life whether or not she or he remarried.  Dependency benefits would only end at death of the surviving spouse for spouses of state police, police and fire fighters. 

   The law is not retroactive for those surviving spouses who already received a lump sum payment or remarried prior to the effective date of this legislation. 

Petitioner Valerie Pyles worked for respondent The Mentor Network as a therapist in the Somerset, N.J. office.   Her office was on the third floor of a four-story office building.  She generally took one of the building’s two elevators from the lobby to the third floor to get to her office. 

On the accident date, Pyles drove to the office, parked and entered the main lobby of the building.  She then stepped into one of the elevators.  While entering the elevator, her forward foot slid into the elevator, causing her to spin and fall, leading to neck, left wrist and low back injuries. 

The Mentor Network was one of 14 or 15 companies in the building with about 140 employees.  The company leased 18% of the building’s rentable space.  There were no designated parking areas for The Mentor Network’s employees, except for five or six parking spaces reserved for the leadership team.  The company did not maintain the parking lots since the lease placed that responsibility on the landlord. Further, the company did not tell employees how to enter the building or go to the third floor.

Under the terms of the lease, the landlord was responsible for maintaining the elevators.  Respondent was required to pay as additional rent a proportionate share of operational expenses, where were defined as “those expenses paid or incurred by the Landlord for maintaining, operating and repairing the building and property. . . “

Under N.J.S.A. 34:15-36, employment begins when the employee arrives at an area of employment under control of the employer.  Pyles argued in her claim petition that the elevator was under the respondent’s control.  The Honorable Arcides Cruz, Judge of Compensation, reviewed the terms of the lease and the case law and found that the case was not compensable because there was no proof that the employer controlled the elevator.  In fact, there were over a dozen other tenants in the building.  The Appellate Division affirmed the dismissal of the case.

This decision is consistent with the New Jersey Workers’ Compensation Statute.  In effect, in multi-tenant buildings an employee is not “at work” until he or she arrives at the office where the employer performs its work.  Common areas like lobbies and elevators are not controlled by the employer; thus accidents in those areas are not covered.  A different outcome would apply if the employer owned the parking or maintained the parking lot or the building at issue.

This case can be found at Pyles v. The Mentor Network, A-4071-11T1 (App. Div. 2013).

Is there a statute of limitations in an occupational disease claim?  While some practitioners believe only traumatic claims have a statute of limitations, the case law is clear that there is a statute of limitations in such claims as outlined inEarl v. Johnson & Johnson, 158 N.J. 155 (1991).  Occupational disease claims can be defeated if not filed timely. The recent case ofLattoz v. New Jersey Turnpike Authority, A-4335-11T2 (App. Div. June 5, 2013) underscores this point.

            John Lattoz began working with the Authority in 1992 as a landscaper and later as a toll technician.  Around 2000 he began to have serious problems with his knees.  He had problems walking and standing.  He found that his knee pain increased during the four years as a toll technician. 

            Q.  So you knew you had pain in your knee in 2000; is that correct?

            A. Yes.

            Q. Did you think it was as a result of your work-related activity?

            A. In both knees.  In both knees.

            Q. Did you think it was as a result of your work-related activities?

            A. Yes.

            In 2004 Lattoz commenced working as a communication technician.  He would have to kneel for approximately two hours per day.  He had pain in his knees any time he would walk or stand.  He saw an orthopedic surgeon, Dr. Hurley, on May 23, 2005 for his knees.  The doctor noted that petitioner said he had pain with any type of prolonged standing or walking.  His problems started while playing football in high school, and in 1978 he had knee surgery to repair a torn meniscus.  Dr. Hurley diagnosed petitioner in 2005 with bilateral osteoarthritis of both knees.  He thought petitioner was too young for a knee replacement procedure. Petitioner was 46 years old at the time of the exam, and Dr. Hurley recommended waiting until age 50. 

            In April 2008, petitioner saw another orthopedic surgeon, Dr. Goldman, because his knees were getting worse.  Between 2005 and 2008, petitioner did not see any other physicians for his knees.  By 2008 he could not wait for his daily work shift to end on account of severe pain.  Dr. Goldman took x-rays and recommended bilateral total knee replacements. That surgery was performed on July 23, 2008, and the Authority paid for the surgery.  Petitioner returned to work in November 2008 and resumed full duty.  He filed this claim petition on November 11, 2008 asserting that occupational exposure from 1992 to 2008 and continuing caused his knee problems.

            Petitioner produced Dr. Arthur Tiger, an orthopedic surgeon, who testified that petitioner’s employment caused his need for bilateral knee replacements.  Dr. Tiger denied that the prior knee surgery was the primary cause of knee pain.  He did admit that petitioner’s prior employment installing carpet and engaging in tree cutting services were factors in the development of knee problems. 

            Dr. Carl Mercurio, a surgeon, testified for respondent and said that primary risk factors were petitioner’s obesity and prior knee injury.  Petitioner was six foot six inches tall weighing between 280 and 300 pounds.  He characterized the work exposures as those of everyday life. 

            The Judge of Compensation dismissed the case on the statute of limitations underN.J.S.A. 34:15-34.  He found that petitioner knew his condition more than two years before the filing date and thought it was work related.  Petitioner countered that he lacked statutory knowledge until his surgery in 2008.  The Appellate Division affirmed the dismissal of the case, noting that the statute requires the claimant to file within two years after the date the worker knew the nature of the condition and its relationship to work.  The Court said that knowledge of the nature of the disability means knowing enough about the condition to realize its extent and seriousness.

The records thus show that in May 2005, petitioner had the requisite amount of ‘knowledge of the nature of his disability’ that was ‘sufficient to bring home substantial realization of its extent and seriousness. . . Accordingly, the decision by the Judge of Compensation that petitioner had until May 23, 2007 to file his workers’ compensation claim pursuant toN.J.S.A. 34;15-34 was ‘supported by substantial credible evidence in the record’ and was not ‘arbitrary, capricious or unreasonable.’” (citations omitted).

There are very few cases in workers’ compensation where a party asks a judge to recuse himself or herself.  One recent case,Executrix of the Estate of Rosemarie Bellino v. County of Hudson, A-0275-11T4, (App. Div. April 30, 2013) provides guidance on the legal standard. 

Rosemarie Beillino worked as a sheriff’s officer for the County of Hudson and filed five workers’ compensation claims.  The case was tried over eight non-consecutive days between September 16, 2009 to March 16, 2011.  The Judge of Compensation heard several witnesses including the petitioner, two other sheriff’s officers, the county payroll supervisor, Dr. Arthur Tiger, Dr. Malcolm Hermele, Dr. William Kritzberg, Dr. Arthur Rothman and Dr. Arthur Canario. 

Ultimately, the judge dismissed three of the five cases and found for the petitioner on an elbow claim and carpal tunnel claim.  The judge did not find that petitioner was totally and permanently disabled. The petitioner died prior to the argument before the  Appellate Division. 

Following the testimony in the case but before any decision, petitioner’s attorney asked to speak to the judge, who advised that she did not want to have any ex-parte discussions.  Therefore, counsel for petitioner left a note for the judge along with some case law.  That led the judge to contact both parties during which conversation petitioner’s attorney advised that she felt the judge had crossed the line in the case and had become more of an advocate than a trier of fact.  The judge directed that counsel file a motion for recusal.

In the motion for recusal, counsel argued that there was bias in part because the judge asked numerous questions of petitioner comprising 12 pages in the transcript.  In addition, counsel pointed to the judge’s “expressed incredulity to the petitioner’s statements that . . . she had been regularly required by her job to work beyond the 4:30 p.m. normal workday end.”  Further, counsel noted that the judge relied upon her personal trial experience at one point and “prevented petitioner from placing a description on the record of the process delineating her manner of interaction with prisoners/participants and the physical movements that would have been involved.” The judge also noted at one point that she was aware of the arraignment process in Hudson County and did not need clarification. Lastly, counsel felt it was inappropriate for the judge to allow inquiries into the income and the nature of petitioner’s spouse’s retirement.

The Judge of Compensation denied the motion noting in part that the motion was filed 21 months after petitioner had testified.  The Appellate Division affirmed.  The Court first observed that judges must “refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question.  In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial.”State v. McCabe, 201 N.J. 34, 42-43, (2010). The Court further observed that when a party argues that a judge is biased, “the moving party must prepare the case ‘on paper or by calling witnesses.’Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990).  Judges of Compensation are governed by rules of conduct,N.J.A.C. 12:235-10.1 to 10.23, modeled after the Code of Judicial Conduct. 

The Court distinguished two unreported cases because there was no evidence of impatience or irritability in the record and no evidence that the judge took over all questioning.  The Court weighed the total number of pages of petitioner’s testimony (110) against the 12 pages of the judge’s questioning and concluded that this was not significant.  “We are satisfied neither the length of questioning nor nature of the judge’s questioning rises to the level of the judge becoming an advocate, dominating questioning and calling witnesses.”

As to counsel’s concern about the judge’s demeanor, tone and facial expressions during a conference call prior to the recusal motion, the Court said “. . . she failed to produce affidavits or certifications to support her allegations of the judge’s demonstrated bias.”

Walesca Benvenutti worked for Scholastic Bus Company as a school bus driver.  She drove children to school in the morning and then drove them home in the afternoon.  She was required to clean the bus interior and inspect the seatbelts after each run.  The testimony of both petitioner and her employer was that there was no specific time that she had to clean the bus.  The employer confirmed that she was permitted to clean the bus off-premises and was paid additional money to clean the bus interior.

On June 9, 2010, petitioner parked the bus in front of her house after her morning run.  Before she exited the bus, she said she swept the bus and inspected the seat belts.  She testified that she tripped over a piece of rubber mat and fell while exiting the bus, sustaining injuries.  The respondent denied the claim because petitioner had prepared a handwritten statement three days after the incident occurred in which she never mentioned that she was cleaning the bus before she fell.

Petitioner testified at trial that when she wrote the handwritten statement, she was principally concerned about informing her employer that she had fallen and broken her ankle.  She said it did not occur to her at the time to inform her employer that she had just cleaned the bus.

The Judge of Compensation reviewed the testimony of the various witnesses and noted that two of the employer’s witnesses admitted that petitioner was permitted to sweep the bus at home. The judge also noted that it was a job requirement that petitioner clean the bus between runs during the day.  The judge found petitioner’s testimony to be credible and ruled in favor of compensability.

 The Appellate Division affirmed and stated, “The definition of ‘employment’ under the statute is multi-faceted, and includes situations in which the employee is physically away from the employer’s premises but nevertheless is ‘engaged in the direct performance of duties assigned or directed by the employer.’” N.J.S.A. 34:15-36.

The Court said that “Courts must bear in mind that ‘the language of the [Act] must be liberally construed in favor of employees.’”Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 349 (App. Div. 1999).  The Court ruled that as long as the employee is engaged in the direct performance of assigned duties, it does not make a difference whether the duties are performed on or off the work premises.  The case can be found at Benvenutti v. Scholastic Bus Company, A-3732-11T1 (App. Div. April 4, 2013). 

Many employers utilize post-offer medical examinations as part of their hiring process to screen out potential employees who cannot perform the essential functions of the job with or without reasonable accommodation.  Sometimes, however, the value of a post-offer medical examination does not come to light until long after hiring.

            In Reilly v. Lehigh Valley Hospital, 27 AD Cases 1189 (3d Cir. 2013), the plaintiff, Robert Reilly, was hired in August 2006 as a part-time Security Officer for LVH.  He received a conditional offer of employment in August 2006 and signed a six-page employee health information form.  The final two questions on the form asked, “Have you ever been recognized as or diagnosed with alcoholism or drug addiction?  Have you ever been or are you now being treated for alcoholism or drug addiction?  . . . If so, specify type of treatment.”

            Reilly responded in the negative to both questions.  He did not answer a follow-up question that requested the type of treatment he received.  A handwritten note beneath the questions read:  “denies drug/alcohol addiction.”

            On April 4, 2008, Reilly finished his work shift at LVH and was admitted to the Emergency Room to receive treatment for a work-related eye injury. Reilly disclosed to the treating physician that he had a history of narcotics use and was a recovering drug addict.  Following that visit, the ER sent a report to the LVH Employee Health Services Department, which in turn notified the LVH Human Resources Department that Reilly had not been candid on his post-offer employment form in 2006.

            On May 2, 2008, LVH terminated Reilly’s employment advising him that the hospital considered his failure to disclose his addiction and alcoholism as dishonesty.  Reilly then sued in the Court of Common Pleas of Lehigh County, Pennsylvania.  He alleged his firing was disability-based discrimination.

            During his deposition, Reilly admitted that he was a recovering alcoholic and narcotics addict.  He was still attending Alcoholics Anonymous (AA) sessions and Narcotics Anonymous (NA) sessions.  He further admitted that he had attended 40 hours of programs at a drug and alcohol treatment facility (Livengren) as a consequence of a conviction for driving under the influence in 1995. He did not consider his time in the program to be treatment because it was mandated by the court and he experienced no change in his substance abuse behavior resulting from the program.

            The District Court granted summary judgment to LVH, dismissing Reilly’s law suit, and the Third Circuit Court of Appeals affirmed.  It said, “Reilly’s belief that he answered the pertinent inquiries truthfully is not the determinative factor.  The question is whether the decision maker at LVH could regard Reilly’s responses as dishonest.  The answer to that question is resoundingly, “yes.”  The court noted that Reilly admitted in his deposition that he received 40 hours of drug and alcohol addiction treatment and that he still attended AA and NA meetings.

Given this undisputed evidence, Reilly’s bare assertion that he completed the Employment Form truthfully because he believed the purpose of the treatment at Livengrin (the program) was to resolve his DUI charge, not treat his addictions, is insufficient ‘to permit a factfinder either to disbelieve LVH’s articulated reasons, or to conclude that discrimination on account of disability was the real reason’ for Reilly’s termination.

The court therefore affirmed the dismissal of Reilly’s suit.  The court did not decide the issue of whether it was improper for LVH to disclose Reilly’s medical records to the Human Resources Department after his visit to the ER because Reilly failed to raise that in the trial below.

It is important to note that the termination in this case was for dishonesty on the post-offer medical examination form.  The court did not question that Reilly was protected under the Americans with Disabilities Act from discrimination on the basis of alcoholism or drug addiction.  The issue was simply whether the employer had a right to terminate an employee who had misrepresented the truth in the post-offer process, and that answer to that question was affirmative.

In Valdez v. Brent McGill and Mueller Supply Company, Inc., 2012 U.S. App. LEXIS 2783 (10^th Cir. 2012), the court considered whether a request for telecommuting and additional leave was a reasonable accommodation.

            Doyle Brown worked as a warehouse supervisor for Mueller Supply Company.  He supervised Mueller’s warehouse, including all shipping and receiving.  He advised his own supervisor, McGill, that he had cancer and would need surgery in April 2005.  Even though the company employed too few people at the work site to trigger FMLA, the company nevertheless offered Brown FMLA leave.  Brown returned to work following his surgery in May 2005.

            In January 2006, Mueller approved intermittent FMLA leave for recurrent health-related absences.  One year later, on January 24, 2007, Brown presented a note from his doctor indicating that he had serious health conditions and would need to be out of work until February 8, 2007. 

            On February 7, 2007, Mueller sent Brown a letter stating that he had exhausted his 12 weeks of FMLA leave.  On the same date Brown presented a new note stating that he would need three more weeks of leave until March 1, 2007.  Mueller then terminated Brown on February 8, 2007 for poor work performance and excessive absences.  Brown offered to come to work against doctors’ orders but the company refused. Brown then sued under the ADA and argued that the company failed to make reasonable accommodations.

            At some point Brown passed away and his personal representative, Valdez, proceeded on the case.  She argued that Brown could have performed the essential job functions had the company offered him the opportunity to work from home.  The court noted that Brown had conceded in his deposition that physical attendance in the workplace was required.  He maintained that he could use technology to perform many of the essential functions of the job, but he conceded that at home he could not perform quarterly or random inventory counts, could not interact with customers in the warehouse, and could not effectively supervise his staff.  Not being in the warehouse would make it hard to know whether his employees had completed job tasks.  Based on these statements, the court concluded that working from home was not a reasonable accommodation.

            Next, Valdez argued that additional leave would have been a reasonable accommodation.  The court said, “A leave of absence may be a reasonable accommodation as long as the employee’s request states the expected duration of the impairment.”  The court said, “Here, the record shows it was uncertain if or when Brown would sufficiently recover from his impairments to be able to return to work.”  The court added, “In light of his diagnosis with colon cancer, his frequent absences, and his inability to return to work according to the earlier physician’s note, it was uncertain he would be able to return to work on March 1, 2007.” Further, no doctor said that his conditions would be resolved by March 1, 2007.

            Valdez also argued that the company failed to engage in the very important interactive process to determine whether there was a potential reasonable accommodation.  The court rejected this argument as well.  “Accordingly, an employer is not required to engage an employee in a futile interactive process where, as we have concluded was the case here, no reasonable accommodation was possible.”

            In short, the ADA case was dismissed.  The opinion is interesting because employers are generally advised to engage in the interactive process.  But here the court held that the interactive process would have been of no utility since all of the requests for accommodation were simply not reasonable.

John Lance, a police officer for the City of Camden, New Jersey, was injured on May 10, 2004 in a work-related motor vehicle accident.  He received medical and temporary disability benefits in workers’ compensation.  However, he alleged that his workers’ compensation benefits were improperly terminated in October 2005. 

            On June 12, 2004, about a month later, Lance was directed to appear at police headquarters for a drug test.  He appeared and was given documents pertaining to the drug test.  He stated that he was unable to understand the documents and requested assistance.  When told he had to sign the documents, he refused and the test session was terminated.  The City then served disciplinary charges against Lance seeking his termination for failure to undergo the City’s drug test.

            The City conducted hearings on the disciplinary charges in November 2005 and January 2006. Lance claimed that he was not able to defend himself at the hearing because of cognitive impairments which were exacerbated by his inability to obtain medical treatment after the termination of his workers’ compensation benefits. 

            On January 23, 2006, the hearing officer issued a report recommending termination of Lance’s employment.  The City proceeded to discharge Lance. Around the same time, hearings continued in the Division of Workers’ Compensation, and Lance prevailed in his claim for continued temporary and medical benefits.  Ultimately, the City paid $189,892 in temporary disability benefits and $65,220 in medical benefits. Plaintiff also received an accidental disability pension, which would pay him two thirds of his salary free of federal taxes, and free of state taxes until age 65.            

Following his termination, Lance sued and claimed that the City violated his right against unreasonable searches and seizures by making him submit to a drug test.  He further claimed that the City retaliated against him for successfully obtaining workers’ compensation benefits and retaliated against him by delaying payment of his temporary disability benefits.  The trial court dismissed all of plaintiff’s claims and Lance appealed.

The Appellate Court rejected plaintiff’s employment discrimination claim:

While plaintiff alleged that he did not understand ‘what was going on’ when he appeared for the test, he provided no affidavit or certification supporting that allegation.  A police officer who unjustifiably refuses to comply with an order requiring that he undergo a drug test cannot be said to be performing his job in a manner that met the employer’s reasonable expectations.  Plaintiff provided no evidence showing that his refusal to submit to the test was medically justified.

As for the claim for retaliation due to the filing of a workers’ compensation claim, the Court acknowledged that there is a cause of action in New Jersey for retaliatory discharge for seeking workers’ compensation benefits.  In this case Lance contended that the City unlawfully retaliated against him for seeking workers’ compensation benefits by delaying payment of his temporary disability benefits. “The trial court correctly ruled that this claim should be pursued in the compensation case pending before the Division of Workers’ Compensation, in which plaintiff was seeking additional disability benefits.”

            Regarding plaintiff’s charge that he was wrongfully terminated for successfully obtaining workers’ compensation benefits, the court said that Lance failed to offer any proof on this count.  “Plaintiff presented no evidence from which a fact-finder could conclude that the City ordered the test or discharged plaintiff because he obtained workers’ compensation benefits.”

            This case can be found at Lance v. City of Camden, A-3157-11T3 (App. Div. April 18, 2013).

It is certainly not for lack of trying that plaintiffs remain largely unsuccessful in opening the door to intentional harm claims in New Jersey.  The door has remained closed in the past 10 years on intentional harm claims and all but locked, including the most recent challenge in Fendt v. Adam L. Abrahams, et. al., A-2333-11T1 (App. Div. April 9, 2013). 

            Michael Fendt worked in various capacities for Jeffrey Valvano, who operated JV Paving as a sole proprietorship.  He would fix equipment, drive machinery, and direct traffic around construction sites.  On May 19, 2008, Fendt was working as a “flagger,” stopping traffic on a busy county road so that Valvano could move a backhoe in and out of a driveway.  He stood in the center of the road with only a hand-held stop sign.  The company had fluorescent jackets, warning signs, cones, and flags available, but Fendt was not provided with any of this warning devices.  Valvano did not direct Fendt to utilize the warning devices.

            On the date in question, Fendt was doing his work, holding a stop sign, when the defendant Adam Abrahams drove into Fendt, causing serious injuries.  Abrahams said that he had taken his eye off the road to look at his radio.  He later stated that if there had been warning cones in the road, he would have driven more slowly.  The police issued various citations to the company for not having proper construction warning signs and not complying with signage requirements.

            Fendt sued the driver of the car, its owner and his own employer.  His expert opined that the employer “knowingly exposed (Fendt) to a risk that was substantially or virtually certain to result in harm.”  The expert cited the failure to comply with the Manual on Uniform Traffic Control Devices, failure to provide reflective safety vests, failure to comply with OSHA regulations, failure to have a written safety program, failure to adequately train employees in safety procedures, and failure to enforce safety policies to protect workers from harm.

            The trial court dismissed the case, and the Appellate Division affirmed.  The court said that “intentional harm” encompassed more than a subjective intention to injure.  Mere knowledge and appreciation of a risk of harm to the employee does not equate to intent.  New Jersey courts have followed the rule in Millison v. E.I. Du Pont de Nemours & Co., 101N.J. 161 (1985), namely that there must be a showing of “substantial certainty.” First, the employee must knowingly expose the employee to a substantial certainly of injury.  Second, the resulting injury must not be a “fact of life of industrial employment.”

            The court also cited the recent Supreme Court decision in Van Dunk v. Reckson Associates Realty Corp,. 210N.J. 449 (2012) where plaintiff’s suit for intentional harm failed even though the workplace accident produced an OSHA citation for a “willful” violation of OSHA safety rules.  The Court said that even a finding of a willful violation under OSHA does not alone suffice to prove whether the employer committed an intentional wrong. 

The Appellate Division found that this case had some parallels to Van Dunk, given the OSHA citations, fines,  and failure to use safety devices. It citedVan Dunk and a string of cases where plaintiff made out strong cases for intentional harm 10 years ago.   “Similar toVan Dunk, while the facts here amount to negligence, perhaps even gross negligence, they do not approach the facts in cases such asMillison, Laidlow, Mull, and Crippen.  In those cases, the employer was responsible for an affirmative act that made the workplace significantly less safe for its employees. The record contains no such affirmative act by the employer here.”