Workers' Compensation: OSHA Violations: Workers’ Compensation Impact

A willful OSHA violation is serious, but in New Jersey, it is not a magic key that unlocks the door to civil litigation against an employer. Over a decade after the New Jersey Supreme Court’s landmark ruling in Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012), that foundational principle remains firmly in place and continues to shape how injured workers, employers, and practitioners navigate the intersection of OSHA enforcement and the workers’ compensation system.

Background: The Van Dunk Case

On August 10, 2004, Kenneth Van Dunk, Sr., a union laborer working on a construction project at Giralda Farms in Chatham, New Jersey, was seriously injured when a trench wall collapsed and buried him. The trench was 18 to 20 feet deep, the soil was unstable Type C soil (the least stable classification under OSHA standards), and water was seeping in. The on-site supervisor for James Construction Company, Inc. knew of these hazards — and initially told Van Dunk not to enter. Later that same day, the supervisor instructed Van Dunk to proceed into the trench. Moments later, the trench collapsed.

OSHA investigated and issued a willful violation citation against James Construction, finding the employer had failed to use a required trench protective system. The employer did not contest the citation or the fine. Seemingly, the stage was set for a civil lawsuit to proceed alongside the workers’ compensation claim.

The trial court thought otherwise, and ultimately, so did the New Jersey Supreme Court.

The Exclusivity Doctrine and the “Intentional Wrong” Exception

Under New Jersey’s Workers’ Compensation Act, N.J.S.A. 34:15-1 to -128.5, the remedy available through the workers’ compensation system is generally exclusive. An injured employee cannot pursue a separate civil tort action against the employer unless that employer committed an “intentional wrong.” N.J.S.A. 34:15-8.

What constitutes an intentional wrong? The answer flows from the Supreme Court’s 1985 decision in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), which established the “substantial certainty” test. Under Millison and its progeny, the intentional wrong exception requires proof of two elements:

• Conduct Prong: The employer knew that its actions were substantially certain to result in injury or death to the employee.

• Context Prong: The resulting injury and the circumstances of its occurrence were plainly beyond the ordinary hazards of industrial life, something the Legislature could not have contemplated would fall within the exclusivity bar.

"Based on the strong legislative preference for the workers’ compensation remedy and an intentional-wrong standard that even an employer’s recklessness and gross negligence fails to satisfy, we hold that this matter falls short of demonstrating that an intentional wrong creating substantial certainty of bodily injury or death occurred." — Justice LaVecchia, Van Dunk v. Reckson Associates Realty Corp. (2012)

What Van Dunk Decided — and Why It Matters

The Supreme Court reversed the Appellate Division and reinstated the trial court’s grant of summary judgment to the employer. Writing for a unanimous Court, Justice LaVecchia held that:

• A willful OSHA citation is not dispositive. It is one factor among the totality of circumstances, not a standalone basis for overcoming exclusivity.

• The conduct prong was not met. Unlike cases involving the deliberate removal of safety guards, prior accident history, or deliberate deception of OSHA, the supervisor here made a poor judgment call under time pressure, not an affirmative act that was virtually certain to cause injury.

• The context prong was not met. The trench collapse, though devastating, was the kind of construction-site accident the Legislature had in mind when designing the workers’ compensation system. It was not “so far outside the bounds of industrial life” as to exceed the exclusivity bar.

• Gross negligence and recklessness are not enough. Even egregious safety failures, short of near-certain injury, do not pierce the statutory bar.

The Current Legal Landscape: Van Dunk’s Enduring Reach

More than a decade later, Van Dunk continues to define the outer boundaries of employer liability in New Jersey. Courts applying the substantial-certainty test consistently return to Van Dunk to set the bar high for plaintiffs seeking to bypass the workers’ compensation system.

In Estate of Oscar Portillo v. Bednar Landscaping Services, Inc., A-3110-19 (N.J. Super. App. Div. July 8, 2021), the Appellate Division again upheld the exclusivity bar even where two employees were killed when a nine-foot-deep trench collapsed, and OSHA issued a willful violation citation. Following Van Dunk, the court found the evidence insufficient to demonstrate that the employer was “substantially certain” that injury would result.

In Lopez v. Carousel Auto Repair Inc., 732 F. Supp. 3d 383 (D.N.J. 2024), the court reaffirmed that knowing a practice “creates a danger” is categorically different from knowing it creates a “substantial certainty” of harm. That distinction — probability of harm versus virtual certainty of harm- remains the governing line.

And in December 2024, the New Jersey Supreme Court, in Rodriguez, reaffirmed the enforceability of intentional-wrong exclusions in workers’ compensation/employer’s liability insurance policies, confirming that civil suits alleging intentional employer conduct carry significant insurance coverage implications.

Impact on Workers’ Compensation Claims

For practitioners and injured workers, the Van Dunk framework has direct, practical consequences for workers’ compensation claims:

1. Workers’ Compensation Remains the Primary Remedy

Van Dunk reinforces that workers’ compensation benefits — medical treatment, temporary disability, permanent disability, and dependency benefits — are the primary and typically exclusive remedy for most construction and workplace injuries, even those caused by flagrant safety violations. Injured workers should pursue their workers’ compensation petition vigorously and without delay.

2. OSHA Evidence Is Still Relevant and Valuable

While an OSHA willful citation cannot alone defeat the exclusivity bar, it is a powerful evidentiary tool within the workers’ compensation proceeding itself. OSHA investigation records, citations, and penalty assessments help establish the nature and seriousness of the hazardous condition, corroborate the injured worker’s account, and support claims for permanent disability and medical causation. Practitioners should obtain OSHA records in every construction-related workers’ compensation case.

3. Third-Party Claims Must Be Evaluated

Even when a civil claim against the direct employer is barred, injured workers often retain viable claims against third parties, including property owners, general contractors, equipment manufacturers, and subcontractors. Van Dunk does not bar such claims. A thorough investigation should identify all potentially liable parties beyond the immediate employer.

4. The “Intentional Wrong” Exception Is Fact-Intensive

Van Dunk does not close the door on all intentional wrong claims. The Supreme Court specifically distinguished cases involving deliberate removal of a safety device, prior OSHA citations for similar violations, deliberate deceit of regulators, or prior knowledge of near-certain injury. Where such aggravating factors exist, an intentional wrong claim may survive. Key factors that strengthen the case for the exception include:

• Prior OSHA citations for the same or similar hazard

• Deliberate removal or disabling of a safety device

• Prior accidents or near-misses from the same condition

• Affirmative deception of OSHA inspectors or employees about safety conditions

• Concealment of medical information about occupational exposures (as in the asbestos cases addressed in Millison)

5. OSHA Enforcement Trends Matter

OSHA’s enforcement priorities directly affect the frequency and severity of citations that workers’ compensation practitioners will encounter. According to OSHA’s fiscal year 2024 data, fall protection violations remain the most frequently cited standard — with ongoing concerns in construction, warehousing, and logistics. Construction worker deaths from falls, slips, and trips accounted for 39.2% of all construction fatalities in 2023, according to the Bureau of Labor Statistics. Direct costs of workplace falls reached nearly $16 billion in 2024. In this environment, Van Dunk’s framework will continue to be litigated with regularity.

Practitioner’s Checklist: OSHA Violations and Workers’ Compensation Claims

Action Item	Why It Matters
File workers’ comp petition promptly	Preserve rights; statutes of limitation apply
Obtain the complete OSHA investigation file	Key evidence for causation and disability
Identify all third-party defendants	Civil claims outside exclusivity bar
Analyze prior OSHA citations	May support an intentional wrong exception
Review any safety device removal facts	Critical to conduct prong analysis
Assess the employer’s insurance coverage	Intentional-wrong exclusions may apply
Document all medical treatment	Maximize permanent disability award

Conclusion

Van Dunk v. Reckson Associates Realty Corp. remains the controlling law and a critical reference point for any New Jersey workers’ compensation practitioner dealing with OSHA violations. The case is a reminder that the workers’ compensation system, not the civil courts, is the Legislature’s chosen mechanism for resolving most workplace injury disputes, even those involving significant employer fault. But it is equally a reminder that the intentional-wrong exception is real, demanding, and fact-specific, and that OSHA records, when carefully investigated, can be decisive in the right case.

For injured workers, the lesson is clear: document everything, pursue your workers’ compensation rights aggressively, and work with an experienced practitioner to evaluate whether the facts support any additional claims beyond the compensation system.

2. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985)

3. Laidlow v. Hariton Machinery Co., 170 N.J. 602, 790 A.2d 884 (2002)

4. Estate of Oscar Portillo v. Bednar Landscaping Services, Inc., A-3110-19 (N.J. Super. App. Div. July 8, 2021)

5. Lopez v. Corozal Auto Repair Inc., 732 F. Supp. 3d 383 (D.N.J. 2024)

6. New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-1 to -128.5

7. OSHA FY2024 Top 10 Most Cited Standards — Fall Protection (#1)

8. Bureau of Labor Statistics, Census of Fatal Occupational Injuries (2023)

9. WorkersCompensation.com — New Jersey’s Exclusive Remedy Provision (2025)

10. Jon L. Gelman — Workers’ Compensation Blog (workers-compensation.blogspot.com)

*Jon L. Gelman of Wayne, NJ, is the author of NJ Workers' Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers' Compensation Law (West-Thomson-Reuters).

Blog: Workers' Compensation

LinkedIn: JonGelman