Workers' Compensation: Failure to Assist Not Actionable

For a workplace injury claim to bypass the exclusive New Jersey Workers' Compensation Act, the employer's conduct must be an "intentional wrong" – meaning they knew injury or death was virtually certain, and the injury is beyond the scope of typical industrial employment. Simply entrusting an injured employee to a friend for transport to medical care generally doesn't meet this high bar.

This case highlights the stringent requirements for overcoming the exclusivity provision of the New Jersey Workers' Compensation Act (WCA). The WCA is designed as a "trade-off," providing injured workers with automatic, albeit reduced, benefits for injuries sustained on the job, in exchange for relinquishing their right to pursue common-law remedies against their employer. The only exception to this exclusivity is for injuries resulting from an employer's "intentional wrong".

To prove an "intentional wrong," a plaintiff must satisfy a two-prong test established by the New Jersey Supreme Court:

Conduct Prong: The employer must have known that their actions were "substantially certain" to result in injury or death to the employee. The mere knowledge that a workplace is a dangerous or even reckless conduct is not enough; a "virtual certainty" is required.
Context Prong: The resulting injury and the circumstances of its infliction must be "plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize". It must be "more than a fact of life of industrial employment".

In this specific case, the plaintiffs alleged that the defendants "intentionally failed to call for appropriate medical assistance" for Earl Brown Jr., who lost consciousness and fell at work. However, the Court found that the plaintiffs did not allege that Brown's initial injury was caused by an intent to harm him. Furthermore, while they claimed the defendants assigned dangerous work, they didn't link that to the initial fall. Crucially, the plaintiffs failed to allege that the defendants were "virtually certain" that serious injury or death would result from their alleged failure to summon medical assistance.

The court referenced a similar case, Applegate v. Arch Aluminum & Glass, Inc., in which an employer's decision to entrust an ill employee to a family member for transportation to medical care was deemed not to meet the intentional misconduct threshold. Similarly, in the current case, the fact that Brown's supervisor instructed him to seek medical attention and had employees assist him in retrieving his phone to call a friend did not rise to the level of intentional misconduct required to bypass the WCA.

Therefore, the court dismissed the complaint, concluding that the plaintiffs failed to sufficiently plead an intentional wrong that would survive the WCA's exclusivity provision.

NELDA SEIDEL, INDIVIDUALLY, AND AS ADMINISTRATOR AD PROSEQUENDUM AND GENERAL ADMINISTRATOR OF THE ESTATE OF EARL R. MR. BROWN, JR., v. THE EGGO COMPANY, KELLANOVA, JOHN DOES, ABC PARTNERSHIPS & XYZ CORPORATIONS, JOINTLY, SEVERALLY AND/OR IN THE ALTERNATIVE, Civil Action No. 24-8402 (KMW-SAK), 2025 WL 1478385, (USDCTNJ 2025) Filed 05/23/2025 [Not for Publication].

Recommended Citation: Gelman, Jon, Failure to Assist Not Actionable (05/30/2025) https://workers-compensation.blogspot.com/2025/05/failure-to-assist-not-actionable.html

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ORDER NOW

*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). For over five decades, the Law Offices of Jon Gelman 1.973.696.7900
jon@gelmans.com has represented injured workers and their families who have suffered occupational illnesses and diseases.