Appellate Division bars LAD plaintiff from suing for a workers' compensation-paid shoulder injury after a retaliatory firing.
A New Jersey worker who is hurt on the job, collects workers' compensation, and is then fired cannot use a discrimination or retaliation lawsuit to pursue a separate civil action. That is the message of Haskins v. Casey, No. A-2487-25 (App. Div. Sept. 21, 2026), in which the Appellate Division reversed a Somerset County order that would have let the plaintiff seek pain-and-suffering damages for a compensable shoulder injury, and show the jury what the employer's carrier had paid, as part of his Law Against Discrimination (LAD) and retaliatory-discharge case.
The opinion is unpublished and, under R. 1:36-3, does not constitute precedent. It nonetheless clearly states where the courts will draw the line between the Workers' Compensation Act and employment litigation, and defense counsel will cite it in every case where a comp claim and a termination travel together.
The Facts
The plaintiff worked as a material handler in a warehouse operated by Ekornes, Inc. In December 2020, he injured his left shoulder while reaching, in an incident that involved a fall and pallets. He filed an Employee Claim Petition with the Division of Workers' Compensation on June 3, 2021. According to his complaint, Ekornes then unilaterally placed him on FMLA leave, denied his request for a work accommodation, and terminated him on December 3, 2021.
The compensation case ended in a November 17, 2022 Order Approving Settlement awarding $85,995 in permanent disability benefits. Less than two months later, on January 10, 2023, the plaintiff sued Ekornes in the Law Division and later added the company's president, chief financial officer, and human resources director. His second amended complaint pleaded LAD claims for disability, perceived disability, and racial discrimination; fraudulent concealment tied to the FMLA designation notice; and wrongful discharge in retaliation for filing the workers' compensation claim. He described his damages as lost wages since the termination and emotional distress caused by the termination.
What the Trial Court Did
The plaintiff moved for partial summary judgment seeking an order "enforcing Section 40" of the Act, N.J.S.A. 34:15-40. On December 19, 2025, the trial court granted the motion. If the jury found retaliation or an LAD violation, the plaintiff could pursue compensatory damages, including pain, suffering, and loss of life's pleasures, on a bodily injury claim, and could present evidence of the medical, temporary disability, and permanent disability benefits paid by the carrier. The carrier denied reconsideration on February 4, 2026. The Appellate Division (Judges Gilson, Gummer, and Paganelli) granted leave to appeal, heard argument on August 26, 2026, and reversed.
The Court's Rationale
Section 40 is a third-party statute, not a door into the employment case. The panel reviewed the purpose of Section 40 as explained in Vitale v. Schering-Plough Corp., 231 N.J. 234 (2017), and Frazier v. New Jersey Manufacturers Insurance Co., 142 N.J. 590 (1995): it governs situations in which a third party, not the employer, causes the injury, and it gives the carrier a lien on the worker's recovery so the worker is not paid twice for the same harm. As Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572 (App. Div. 2008), described it, the lien exists because the Legislature found double recoveries inequitable.
The plaintiff's argument ran the opposite way. Because the carrier would hold a lien on any LAD recovery, he reasoned, he should be able to litigate his personal injury inside the LAD case. The panel rejected that logic for two reasons. The shoulder injury did not arise out of any claimed discrimination. And at oral argument, the employer acknowledged that neither it nor its carrier would assert a lien against any LAD recovery. With no lien, the premise disappeared.
The exclusivity bar still governs the injury. Under N.J.S.A. 34:15-8, workers' compensation is the exclusive remedy for a compensable injury, subject only to the intentional-wrong exception. The panel relied on Rodriguez v. Shelbourne Spring, LLC, 259 N.J. 385 (2024), and Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), for that settled rule.
Richter turned on causation, and causation was missing here. The trial court had relied on Richter v. Oakland Board of Education, 246 N.J. 507 (2021). In Richter, a diabetic teacher alleged that her employer's refusal to adjust her lunch schedule caused a hypoglycemic episode in which she fell and suffered serious injuries. The Supreme Court held that her LAD failure-to-accommodate claim was not barred by the Act, with a Section 40 lien preventing a double recovery. The panel found Richter inapplicable because the discrimination in that case allegedly caused the bodily injury. The Ekornes shoulder injury was an ordinary accident arising out of and in the course of employment, and the plaintiff "appropriately received workers' compensation benefits" for it. The LAD's liberal construction does not supply a causal link that the facts lack.
LAD damages must flow from the discrimination. Relying on N.J.S.A. 10:5-3 and Tarr v. Ciasulli, 181 N.J. 70 (2004), the panel held that a successful LAD plaintiff recovers the economic and non-economic losses attributable to the discriminatory conduct, such as the lost wages and emotional distress the plaintiff pleaded. Because no part of that award would fall within an exception to the exclusivity bar, the carrier would have no lien claim either.
The retaliation statute lists its remedies, and lifting exclusivity is not one of them. N.J.S.A. 34:15-39.1makes it unlawful to discharge or discriminate against a worker for claiming compensation. It provides for a fine of $100 to $1,000 or up to 60 days' imprisonment, restoration to employment, and compensation for lost wages, and a companion section, 34:15-39.2, authorizes a Commissioner's penalty of up to $1,000. In Lally v. Copygraphics, 85 N.J. 668 (1981), the Supreme Court added a common-law action for retaliatory discharge. The panel observed that neither the Legislature nor Lally recognized setting aside exclusivity as a remedy, so the retaliation count could not carry the shoulder injury forward into a collateral civil action.
The panel reversed the Section 40 portions of the December 19, 2025 order and the February 4, 2026 reconsideration order, and remanded. It noted that it did not otherwise limit the plaintiff's legally viable claims for lost wages and emotional distress under the LAD, the FMLA, and the retaliation cause of action. The court did not rule on the FMLA summary judgment motions, and they remain for trial.
How Haskins Affects Workers' Compensation Claims
• Causation, not chronology, is the test. A termination that follows a workers' compensation claim does not convert the compensable injury into tort damages. The bodily injury enters an LAD case only when the discriminatory act itself is alleged to have caused it, as in Richter. Claimants' counsel evaluating a failure-to-accommodate theory should build the causal record early, through the medical history, the accommodation request, and its timing.
• Exclusivity remains the default. Haskins reinforces the historic trade-off described in Millison. Absent an intentional wrong, the injury stays in the Division of Workers' Compensation, and the benefits schedule measures recovery.
• Two tracks, two damage models. The workers' compensation case pays for the injury: medical care, temporary disability, and permanent disability. The employment case pays for the loss of the job: back pay, front pay, emotional distress from the termination, and, under the LAD, punitive damages and fees. Pleadings and expert reports in the Law Division should tie emotional distress to the firing, not to the shoulder.
• Section 40 is not a gateway. The prospect of a lien does not create a claim. When an employer disclaims any lien, as Ekornes did at oral argument, the worker's employment recovery is free of reimbursement. Counsel should put that kind of concession in writing before trial.
• Expect motions to keep the comp file out. Richter already barred the jury from hearing evidence of medical expenses and lost wages paid through workers' compensation. Haskins goes further: when there is no causal link, it excludes the injury and the benefits entirely. Notably, the plaintiff's counsel told the panel he intended to offer only the medical bills, and even that narrower request failed. The fact that a claim was filed, however, remains central proof of retaliation.
• Retaliation remedies remain modest on the face of the statute. The fines and penalties in N.J.S.A. 34:15-39.1 still read $100 to $1,000, figures that have not kept pace with the cost of losing a job. The broader common-law action under Lally covers wage loss and emotional distress, not the underlying injury. Any expansion is a question for the Legislature.
• For employers, carriers, and HR. The decision limits bodily injury exposure, not termination exposure. Unilateral FMLA designations, a denied accommodation, and a firing within months of a claim petition are still triable facts, and the individual defendants remain in the case.
The Bottom Line
Haskins keeps the workplace injury where the Legislature put it, in the workers' compensation system, and keeps the retaliation case focused on what the employer did to the job. For injured workers, the lesson is practical rather than doctrinal: a retaliatory firing is compensable in its own right, but it is not a second chance to be paid for the injury. Plan both cases together from the first intake, frame the damages in each forum around the harm that forum can redress, and preserve the causal facts that could bring a case within Richter.
Sources
1. Haskins v. Casey, No. A-2487-25, 2026 WL 2819689 (N.J. Super. Ct. App. Div. Sept. 21, 2026) (unpublished).
2. Richter v. Oakland Board of Education, 246 N.J. 507 (2021).
3. Lally v. Copygraphics, 85 N.J. 668 (1981).
4. Vitale v. Schering-Plough Corp., 231 N.J. 234 (2017).
5. Frazier v. New Jersey Manufacturers Insurance Co., 142 N.J. 590 (1995).
6. Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572 (App. Div. 2008).
7. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985).
8. Rodriguez v. Shelbourne Spring, LLC, 259 N.J. 385 (2024).
9. Tarr v. Ciasulli, 181 N.J. 70 (2004).
10. N.J.S.A. 34:15-40 (liability of third party; Section 40 lien).
11. N.J.S.A. 34:15-8 (exclusive remedy; intentional-wrong exception).
12. N.J.S.A. 34:15-39.1 (unlawful discharge for claiming compensation).
Recommended Citation
Jon L. Gelman, No Shoulder to Lean On, Workers' Compensation, workers-compensation.blogspot.com (Sept. 22, 2026), https://workers-compensation.blogspot.com/2026/09/no-shoulder-to-lean-on.html.
About the Author
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
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© 2026 Jon L Gelman. All rights reserved.
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