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Wednesday, June 27, 2012

Willful OSHA Violation Alone Not Enough Alone to Circumvent the Exclusivity Doctrine

"New Jersey’s Workers’ Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.5, provides a prompt and efficient remedy for an employee’s claim against an employer for a workplace injury. The Legislature made the statutory workers’ compensation remedy  its preferred mechanism for providing compensation to injured  workers......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

A finding of a willful OSHA violation is not conclusive in determining whether the employer committed an intentional wrong for the purposes of the Workers' Compensation Act. Instead, it is one factor among the totality of circumstances to be considered. The issuance of a willful OSHA violation against employer (trench collapse injury) was insufficient to defeat a motion for summary judgment, so the Court examined the totality of the circumstances of the accident and applies the conduct and context prongs of the substantial-certainty standard.

In reviewing the substantial certainty of injury prong of the dual test to determine employer liability beyond workers' compensation, the court distinguished this case from all prior decisions by relying upon the fact that the employer did not intentionally remove a safety device. Noting that the employer's actions in this circumstance, failure to have a proper trench preventing collapse system in place, where the soil was poor in violation of OSHA provisions, did not eliminate the exclusivity of remedy. The court specifically indicated that an employer should not be mearly penalized for actions taken for economic business motivation.

Furthermore, the high threshold of the content prong of the test was not satisfied the court enunciate. "...The type of mistake in judgment by the employer and ensuing employee accident that occurred on this construction site was so far outside the bounds of industrial life has never to become contemplated for inclusion in the Act's exclusively bar," ie. mere violation of an OSHA safety requirements.