Workers' Compensation: Twin Shields Bar COVID Claim

A leased laundry aide died of COVID-19 contracted during a nursing home outbreak. His estate collected a workers’ compensation award, and that was the end of the line. On August 14, 2026, the Appellate Division affirmed dismissal of the family’s tort suit under two independent shields: pandemic immunity and the exclusive remedy provision of the Workers’ Compensation Act.

The Decision

The Superior Court of New Jersey, Appellate Division, has affirmed summary judgment for a Gloucester County skilled nursing facility in a COVID-19 wrongful death and survivorship action. Dunne v. Advanced Subacute Rehabilitation Services at Sewell, LLC, No. A-2559-24, 2026 WL 2363966 (N.J. Super. Ct. App. Div. Aug. 14, 2026), is unpublished and, under R. 1:36-3, sets no precedent. It is nonetheless the most complete illustration to date of how two independent defenses now operate in tandem to close the courthouse door on occupational COVID-19 claims, leaving the workers’ compensation petition as the only meaningful remedy.

The panel, Judges Gooden Brown and DeAlmeida, affirmed substantially for the reasons stated by Judge Benjamin D. Morgan in the Law Division. The trial court had rested its ruling on three independent grounds, each of which the Appellate Division endorsed: immunity under the Emergency Health Powers Act, the exclusivity bar of the Workers’ Compensation Act as applied to a leased employee, and the inadmissibility of the plaintiffs’ causation experts as net opinions.

The Facts That Drove the Result

Louis Doto, Sr. began working in 2015 for BP & SC Services, Inc., a staffing company that leased him to Advanced Subacute Rehabilitation Center at Sewell, a 139-bed skilled nursing and rehabilitation facility. Advanced Subacute controlled the details of his work, paid his wages, and held the power to hire and discharge him. BP carried the workers’ compensation insurance.

Doto worked the overnight shift as a laundry aide in the basement. No residents were housed there. He entered and left through a dedicated laundry entrance, separate from the clinical staff entrance and the visitor reception area. Linens reached him by dumbwaiter, and linens from the rooms of COVID-positive residents arrived in clearly marked red bags. He never entered resident rooms and never delivered clean linens.

The facility’s June 2020 respiratory protection program tiered its workforce. High-risk employees, those with direct resident contact, were required to wear N-95 respirators. Doto was classified as non-high-risk and was required to wear a surgical mask, although N-95 respirators were made available to any employee who wanted one. The record contains no evidence he elected to wear one.

Doto attended periodic mandatory training sessions in the first-floor dining room alongside high-risk staff, with doors closed to residents, staggered by department, social distancing encouraged, and masks required. His last such meeting was in November 2020. Daily symptom screening and temperature checks were applied to everyone entering the building, and by December 2020 all employees and contractors were being routinely tested.

Doto tested positive during routine testing on December 23, 2020, and died on January 18, 2021. The last housekeeping staff member he might have encountered had tested positive twenty-two days earlier. His only regular laundry coworker, who did enter resident rooms, never contracted the disease. Doto lived in the community, where the virus was spreading widely that December.

After his death, OSHA cited the facility for two serious violations for failing to fit-test housekeepers for their N-95 respirators. The citations did not concern Doto. Advanced Subacute then fit-tested all non-clinical staff, and every respirator was found to fit properly. Neither the New Jersey Department of Health nor county health officials cited the facility.

Critically, the estate filed a workers’ compensation claim petition naming both BP and Advanced Subacute as employers, and it received a compensation award for Doto’s death. That award became the fulcrum of the entire case.

Shield One: Pandemic Immunity

Executive Order No. 112 (April 1, 2020) declared health care professionals and facilities immune from civil liability while responding to the pandemic. The Legislature codified that protection retroactively to March 9, 2020, in the Emergency Health Powers Act. Under N.J.S.A. 26:13-19(c)(2), a private entity is immune for any act or omission in connection with a public health emergency undertaken pursuant to the authority the act confers, unless the conduct constitutes a crime, actual fraud, actual malice, gross negligence, or willful misconduct.

The trial court read that grant broadly, relying on Mueller v. Kean University, 474 N.J. Super. 272 (App. Div. 2022), for the proposition that public health emergency preparedness and response provisions are to be liberally construed, and on Worthington v. Fauver, 88 N.J. 183 (1982), for the principle that emergency statutes are construed to accomplish the legislative purpose.

Gross negligence supplied the escape hatch, and the plaintiffs could not reach it. Quoting Steinberg v. Sahara Sam’s Oasis, LLC, 226 N.J. 344 (2016), the court described gross negligence as the failure to exercise even scant care, an indifference and utter disregard of prudence amounting to complete neglect of another’s safety, sitting on a continuum between ordinary negligence and recklessness.

Measured against that standard, the delayed fit testing, the late hiring of an infection preventionist in October 2020 when regulations required one by April, and the decision not to classify Doto as high-risk were, at most, ordinary negligence. As the trial judge put it, this was not a case where the facility ignored face coverings entirely and let employees roam freely. The Appellate Division agreed that while there may have been shortcomings during the challenging early months of the pandemic, no reasonable jury could find grossly negligent conduct as to Doto.

Shield Two: The Exclusivity Bar

The immunity holding alone disposed of the case. The courts addressed the workers’ compensation bar for completeness, and that discussion matters most to compensation practitioners.

The Historic Trade-Off

N.J.S.A. 34:15-7 compensates employees for injuries by accident arising out of and in the course of employment without regard to fault. N.J.S.A. 34:15-8 completes the bargain: if an injury or death is compensable, no person is liable at common law on account of that injury for any act or omission occurring while in the same employ, except for intentional wrong. The Supreme Court described this in Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012), quoting Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), as the historic trade-off in which employees relinquished common-law remedies in exchange for automatic entitlement to certain but reduced benefits. See also Harris v. Branin Transportation, Inc., 312 N.J. Super. 38 (App. Div. 1998), and McDaniel v. Lee, 419 N.J. Super. 482 (App. Div. 2011), quoting Ahammed v. Logandro, 394 N.J. Super. 179 (App. Div. 2007).

Leased Employees Get Two Immune Employers

The plaintiffs argued Doto was not an employee of Advanced Subacute, only of BP, and therefore the facility was a stranger to the compensation bargain. The courts rejected that framing on statutory grounds. N.J.S.A. 34:8-72(b), part of the Employee Leasing Agreements Act, states that the exclusivity of the remedy under the workers’ compensation law for personal injuries shall apply to the employee leasing company and the client company.

The contract between BP and Advanced Subacute unequivocally identified itself as an employee leasing agreement. Doto's continued employment with BP did not negate his simultaneous employment by the client. The Appellate Division stated flatly that there is no doubt Doto was an employee of both, and that the plaintiffs’ special employee argument was inapposite. Under the statute, the client company does not need to satisfy the common-law special employment factors of Blessing or its progeny at all. The statute supplies the immunity directly.

The Intentional Wrong Exception

The single statutory exception requires deliberate intention to injure. Mabee v. Borden, Inc., 316 N.J. Super. 218 (App. Div. 1998), quoting Bryan v. Jeffers, 103 N.J. Super. 522 (App. Div. 1968). Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002), supplies the operative two-part test: the employer must have known its actions were substantially certain to result in injury or death, and the resulting injury and the circumstances of its infliction must be more than a fact of life of industrial employment and plainly beyond anything the Legislature intended the Act to immunize.

The plaintiffs leaned on the OSHA citations. The courts were unmoved. The violations concerned housekeepers, not laundry aides. Doto worked in the basement in a surgical mask and only occasionally encountered housekeeping staff wearing respirators that were later demonstrated to fit properly. Given the facility’s testing regimen and layered precautions, no jury could find the failure intentional. At worst, the panel concluded, Advanced Subacute inadvertently failed to follow some precautions during an unpredictable healthcare crisis of unusually challenging proportions. That echoes Van Dunk, where even a willful OSHA violation did not satisfy the Laidlow conduct prong.

The Causation Gap

The third ground is the quietest and, for practitioners, perhaps the most instructive. The parties agreed expert proof was required because the liability theory lay beyond the ken of the average juror. The plaintiffs offered three experts: an industrial hygienist, a business consultant, and an infectious disease physician. All three were excluded as net opinions under Townsend v. Pierre, 221 N.J. 36 (2015), and Polzo v. County of Essex, 196 N.J. 569 (2008), which require an expert to give the why and wherefore rather than a bare conclusion. See also Landrigan v. Celotex Corp., 127 N.J. 404 (1992), Davis v. Brickman Landscaping, Ltd., 219 N.J. 395 (2014), and Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344 (2011).

The defect was uniform. The hygienist established deviation from industry norms but never discussed Doto or explained how the deviations reached him. The business consultant cataloged protocol failures and concluded only that the pandemic impacted his life. The physician opined that the facility’s willful disregard exposed Doto to COVID-19 without identifying a single supporting fact. None of the three explained how Doto contracted the virus at work rather than in the community, where it was spreading in December 2020. As the panel observed, no amount of precautions could completely eliminate his risk.

Note the asymmetry. The same death that could not survive summary judgment in the Law Division produced a compensation award in the Division of Workers’ Compensation. That is not inconsistency. It is the system's design.

What This Means for Workers’ Compensation Claims

1. The compensation award is both the remedy and the bar. Doto’s estate named Advanced Subacute as an employer on the claim petition and accepted the award. That filing supplied the defense with the employment relationship it needed. Claimants’ counsel evaluating a parallel tort theory should understand that the compensation petition is not a free option; it is a factual admission that will be quoted back.

2. Staffing and leasing arrangements now yield two immune defendants, not one. The traditional workaround, suing the host employer as a third party while collecting compensation from the staffing agency, is foreclosed in New Jersey by N.J.S.A. 34:8-72(b) whenever the arrangement is a genuine employee leasing agreement. Counsel should obtain the staffing contract early and read its self-characterization, because the document’s own label carried real weight here.

3. Pandemic immunity raises the floor from negligence to gross negligence. For any exposure occurring within the declared public health emergency at a health care facility, ordinary negligence is simply not actionable. Documented, tiered protective protocols, even imperfect ones, are what made the immunity stick here.

4. Regulatory citations are evidence, not a verdict. Two serious OSHA violations did not move the needle, because they concerned a different job classification and were promptly remediated. A citation aimed at coworkers rather than the claimant carries little weight on either the gross negligence or intentional wrong analysis.

5. Causation proof must be worker-specific. Systemic-failure reports that never name the worker are net opinions. In the compensation forum the burden is friendlier, but occupational disease proof under N.J.S.A. 34:15-31 still requires an opinion tying the exposure to the disease in this claimant. Retain an epidemiologist or infectious disease specialist who will do genomic, contact-tracing, or timeline analysis rather than a policy audit.

6. Job classification is now a litigated fact. The tiering of the workforce into high-risk and non-high-risk categories did most of the work in this opinion. Whether a claimant belongs in the higher tier, and whether the employer’s tiering was reasonable, is a contested question worth developing in discovery in any occupational exposure claim.

7. The practical center of gravity has shifted back to the Division. For occupational COVID-19 deaths in health care settings, dependency benefits under the Act are realistically the entire recovery. That makes dependency proof, wage reconstruction, and medical causation in the compensation forum the priority, not a speculative tort filing.

For employers, carriers, and third-party administrators, the mirror image holds. Contemporaneous documentation of screening logs, testing records, respiratory protection programs, training rosters, and remediation after any citation is what converted a difficult set of facts into a complete defense. That documentation should be preserved well beyond the ordinary retention period, because these claims continue to surface years after exposure.

A Note on the Procedural Posture

The panel reviewed the grant of summary judgment de novo under Samolyk v. Berthe, 251 N.J. 73 (2022), and Branch v. Cream-O-Land Dairy, 244 N.J. 567 (2021), viewing the record most favorably to the non-movant under Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520 (1995), while requiring competent evidential material rather than speculation, Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. 415 (App. Div. 2009). Summary judgment is appropriate against a party who fails to establish an essential element of its case, Friedman v. Martinez, 242 N.J. 449 (2020), quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The reconsideration denial was reviewed for abuse of discretion under Lee v. Brown, 232 N.J. 114 (2018), and D’Atria v. D’Atria, 242 N.J. Super. 392 (Ch. Div. 1990). A sixty-eight-paragraph certification restating facts already considered is not a basis for reconsideration, Capital Finance Co. of Delaware Valley v. Asterbadi, 398 N.J. Super. 299 (App. Div. 2008).

Recommended Citation

Gelman, Jon L., Twin Shields Bar COVID Claim, WORKERS’ COMPENSATION, workers-compensation.blogspot.com (Aug. 21, 2026), https://workers-compensation.blogspot.com/.

Sources

1. Dunne v. Advanced Subacute Rehabilitation Services at Sewell, LLC, No. A-2559-24, 2026 WL 2363966 (N.J. Super. Ct. App. Div. Aug. 14, 2026) (unpublished, per curiam; Gooden Brown and DeAlmeida, JJ.A.D.).

2. New Jersey Courts, Unpublished Appellate Court Opinions, https://www.njcourts.gov/attorneys/opinions/unpublished-appellate

3. Emergency Health Powers Act, N.J.S.A. 26:13-1 to -36, https://law.justia.com/codes/new-jersey/title-26/section-26-13-19/

4. Workers’ Compensation Act, exclusive remedy, N.J.S.A. 34:15-8, https://law.justia.com/codes/new-jersey/title-34/section-34-15-8/

5. Workers’ Compensation Act, compensable accidents, N.J.S.A. 34:15-7, https://law.justia.com/codes/new-jersey/title-34/section-34-15-7/

6. Employee Leasing Agreements Act, exclusivity extended to client company, N.J.S.A. 34:8-72(b), https://law.justia.com/codes/new-jersey/title-34/section-34-8-72/

7. Executive Order No. 112 (Apr. 1, 2020), Office of the Governor, State of New Jersey.

8. R. 1:36-3 (unpublished opinions); R. 4:46-2(c) (summary judgment); R. 4:49-2 (reconsideration); N.J.R.E. 703 (bases of expert opinion).

9. Jon L. Gelman, 38-39A N.J. Prac., Workers’ Compensation Law (3d ed., Thomson Reuters/West), §§ on exclusivity of remedy, special and dual employment, and occupational disease causation.

Cases Cited

Opinion links resolve through the CourtListener citation finder.

Ahammed v. Logandro, 394 N.J. Super. 179 (App. Div. 2007)

Branch v. Cream-O-Land Dairy, 244 N.J. 567 (2021)

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995)

Bryan v. Jeffers, 103 N.J. Super. 522 (App. Div. 1968)

Cap. Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299 (App. Div. 2008)

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

D’Atria v. D’Atria, 242 N.J. Super. 392 (Ch. Div. 1990)

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395 (2014)

Friedman v. Martinez, 242 N.J. 449 (2020)

Grzanka v. Pfeifer, 301 N.J. Super. 563 (App. Div. 1997)