In rejecting an employee’s attempt to go forward with a lawsuit directly against an employer, the NJ Appellate Division ruled, in an unreported case*, that an employee, in a novel argument, may assert the “violation of public policy” as an allegation.
Showing posts with label intentional tort. Show all posts
Showing posts with label intentional tort. Show all posts
Monday, January 8, 2024
Monday, May 30, 2022
Dual Employment Status Bars Double Recovery
An employee may have dual employers but ultimately can only receive a single recovery from only one employer for work-related injuries. The “exclusivity doctrine,” permitting a complete recovery of damages against an employer, limits an injured worker’s benefit recovery to the compensation system, barring an intentional tort.
Wednesday, April 13, 2022
Injury Caused by Defeated Machine Guard Results in OSHA Fine of $159,522
An employee working at Crystal Finishing Systems Inc.’s aluminum extrusion facility in Weston was hospitalized with serious injuries after being struck by a puller machine while trying to unjam a piece of aluminum.
Wednesday, March 30, 2022
The Risk of Working in a Factory
A Federal Court in NJ has dismissed a civil action for intentional tort brought by an injured worker against the employer.
Thursday, December 5, 2019
Better Chemistry Through Regulation
The newly released movie, Dark Waters, provides a dramatic insight into the corporate disregard to human safety and life. The film, to be nationally released this weekend, puts into focus the chemical industry's utter disregard for human life that is compounded by the lack of governmental regulation of an out-of-control business.
Tuesday, April 2, 2019
Horseplay Is Not an Intentional Tort
Pranks at work may be
considered “arising out of the course of employment” and compensable
events. Those same injuries are not considered intentional events and would not give rise to cause a civil action against an employer for damages for pain and suffering.
Thursday, August 2, 2012
NJ Supreme Court Bars Expansion of Injured Workers Remedies
Additional tort claim disallowed against insurance companies for intentional failure to comply with court of compensation's, an administrative agency, order to provide provide benefits.
Wade Stancil v. ACE USA (067640)
Argued 3/26/12 Decided 8/1/12 see http://tinyurl.com/d4pycqw
Wade Stancil v. ACE USA (067640)
Argued 3/26/12 Decided 8/1/12 see http://tinyurl.com/d4pycqw
SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized.)
Wade Stancil v. ACE USA (A-112-10) (067640)
Argued March 26, 2012 -- Decided August 1, 2012
HOENS, J., writing for a majority of the Court.
The Court considers whether an injured employee may sue
his employer’s compensation carrier for pain and suffering caused by the
carrier’s delay in paying for medical treatment, prescriptions, and other
services. Plaintiff Wade Stancil was injured in 1995
while employed by Orient Originals. He received workers’ compensation
benefits from his employer’s compensation carrier, defendant ACE USA (ACE).
In 2006, following a trial, the court of compensation determined that Stancil
was totally disabled. In 2007, Stancil filed a motion in the compensation
court seeking an order compelling ACE to pay outstanding medical bills.
During a hearing on the motion, the compensation
judge commented that ACE had a history of failing to make payments when ordered
to do so. On September 12, 2007, the compensation judge granted
Stancil’s motion, warned ACE against any further violation of the order to
pay, and awarded Stancil counsel fees. On October 29, 2007, the parties
returned to the compensation court for a further proceeding relating to
the disputed bills. After finding that the bills identified in the
September 12 order remained unpaid and that ACE’s failure to make payment was a
willful and intentional violation of the order, the court issued another
order compelling ACE to make immediate payment and again awarding counsel
fees.
The court commented on its limited ability to ensure that
carriers would comply with orders, noted that it lacked the authority to
enforce orders through contempt proceedings, found that Stancil had
exhausted his administrative remedies, and suggested that he seek further
relief in the Superior Court. In 2008, Stancil underwent additional
surgery and psychiatric treatment. Stancil’s physician attributed the
need for additional treatment to an earlier treatment delay caused by the
carrier’s delay in paying medical providers.
On April 15, 2009, Stancil filed this lawsuit
in the Superior Court. In his complaint, Stancil claimed that ACE required him to undergo medical examinations by physicians
of its own choosing and then rejected the recommendations of those
physicians and refused to authorize the recommended medical care. The
complaint stated further that Stancil obtained orders from the
compensation court, but ACE failed to comply. Stancil contended
that ACE’s failure to authorize needed treatment caused him unnecessary
pain and suffering, a worsening of his medical condition, and expenses
that should have been paid by ACE. ACE responded by filing a motion to
dismiss the complaint. ACE argued that the Workers’ Compensation
Act, N.J.S.A. 34:15-1 to -142 (the Act), is the exclusive remedy for the
claims pled in the complaint and therefore no damages could be awarded.
The trial court granted ACE’s motion. The court analyzed the
impact of then-recently adopted amendments to the Act and found that the Legislature
had foreclosed resort to the Superior Court for the kind of tort-based relief
demanded by Stancil.
The Appellate Division affirmed. 418 N.J.
Super. 79 (App. Div. 2011). The panel agreed with the trial court
that The Legislature’s amendments to the Act foreclosed Stancil’s claims.
The panel also rejected Stancil’s argument that ACE’s willful
disregard of compensation court orders met the Act’s intentional wrong exception
to the litigation bar. The Supreme Court granted certification limited to
determining whether an employee who suffered a work-related injury has a
common-law cause of action for damages against a workers’ compensation carrier
for its willful failure to comply with court orders compelling it to
provide medical treatment when the delay or denial of treatment causes a
worsening of the employee’s medical condition and/or pain and suffering.
207 N.J. 66 (2011).
HELD: An injured employee does not have a common law
right of action against a workers’ compensation carrier for pain and
suffering caused by the carrier’s delay in paying for or authorizing treatment
because 1) the workers’ compensation system was designed to provide
injured workers with a remedy outside of the ordinary tort or contract remedies
cognizable in the Superior Court; 2) in amending the Workers’ Compensation Act
in 2008, the Legislature rejected a provision that would have given the
compensation courts broader permission to authorize a resort to the Superior
Court and adopted a remedy that permits compensation courts to act through a
contempt power; and 3) 2allowing a direct common-law cause of action against a
carrier would undermine the workers’ compensation system by substituting a
cause of action that would become the preferred manner of securing
relief.
CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, and JUDGE WEFING (temporarily assigned) join in JUSTICE HOENS’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion. JUSTICE PATTERSON did not participate.
CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, and JUDGE WEFING (temporarily assigned) join in JUSTICE HOENS’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion. JUSTICE PATTERSON did not participate.
Related Blog Articles
Aug 05, 2011
The lower court had rejected the case and dismissed it holding that the jurisdiction for bad faith is exclusively within the purview of the Division of Workers' Compensation. Stancil v. ACE USA, 418 N.J. Super. 79, 12 A. 3rd 223...
Apr 23, 2012
A-112-10 Wade Stancil v. ACE USA (067640). 3. The Exclusivity Rule: Under the circumstances of this case, which include a finding by the federal Occupational Safety and Health Administration that the accident was the result ...
Wednesday, July 11, 2012
Exclusivity Rule Adopted in MDL Aviation Law Case
 |
| Continental Connection Bombarder Q400 operated by Colgan Air Photo Credit: Wikimedia Commons |
The Exclusivity Doctrine bars an employee from filing a claim against his or her employer outside of workers' compensation. There are some limited exceptions to that rule such as intentional actions by the employer such as concealment of medical information and gross negligence. The workers' compensation act in the overwhelming majority of claims supersedes common law actions in tort and is the exclusive remedy for an injured worker against an employer. Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 161 A.2d 479 (1960). Kristiansen v. Morgan et al., 153 N.J. 298, 708 A.2d 1173 (1998).
The Court reasoned that under a New York conflict-of-laws analysis, the State of New Jersey, rather than New York, had a greater interest in the case. since the plaintiff failed to meet the two prong NJ test to circumvent the NJ exclusivity rule, the case was dismissed.
In re Air Crash Near Clarence Center New York on February 12, 2009 v. Colgan Air, Inc., et al., # 09-md-2085, 10CV-10078, 2012 WL 1029530 (W.D.N.Y.) March 26, 2012
....
For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.
More on The Exclusivity Rule
Jun 13, 2012
Court Rules Site of Accident Invokes Exclusivity Rule. English: Motor vehicle accident following a ve... A NJ appeals court ruled that a motor vehicle accident cause by a co-worker in the emplyers' parking lot, before work had...
Jun 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 ...
Apr 09, 2010
A Federal Judge, who is managing the Multi-District Asbestos Litigation, has ruled that the exclusivity doctrine defeats the application of the dual capacity doctrine where the manufacturer's corporation was merged into the ...
Apr 23, 2012
The Exclusivity Rule: Under the circumstances of this case, which include a finding by the federal Occupational Safety and Health Administration that the accident was the result of a “willful violation” of its regulations, did the ...
Monday, April 23, 2012
NJ Supreme Court To Rule on Several Critical Issues
The NJ Supreme Court has before it three issues of critical importance concerning workers' compensation including: the standard of proof in a fatal heart claim; remedy for the failure of an insurance company to provide medical care, and the "exclusivity rule." These decisions have the potential to be landmark decisions.
1. Standard of Proof in a Fatal Heart Claim: Does the record support this workers' compensation claim under N.J.S.A. 34:15-7.2, which sets the standard of proof governing claims based on injury or death from cardiovascular causes?
Workers' Compensation benefits were awarded for a pulmonary embolism causally related to sedentary work activity. A NJ Appellate Court awarded benefits for the development of a pulmonary embolism precipitated by the inactivity of sitting long hours at a desk job.
Certification granted 6/7/11
Posted 6/10/11
Argued: 3/26/12
A-112-10 Wade Stancil v. ACE USA (067640)
Related articles
1. Standard of Proof in a Fatal Heart Claim: Does the record support this workers' compensation claim under N.J.S.A. 34:15-7.2, which sets the standard of proof governing claims based on injury or death from cardiovascular causes?
Workers' Compensation benefits were awarded for a pulmonary embolism causally related to sedentary work activity. A NJ Appellate Court awarded benefits for the development of a pulmonary embolism precipitated by the inactivity of sitting long hours at a desk job.
Certification granted: 2/14/12
Posted: 2/14/12
A-71-11 James P. Renner v. AT&T (068744)
2. Remedy for the Failure of the Insurance Company to Provide Medical Care:
May an employee who suffered a work-related injury pursue a common-law cause of action against a workers’ compensation carrier for willful failure to comply with court orders compelling it to provide medical treatment when the delay or denial of treatment causes the employee’s condition to worsen?
The NJ Supreme is going to review the procedure to bring bad faith claims against employers and insurance companies in workers' compensation actions. The Court accepted for review a case holding that workers' compensation bad faith claims are within the exclusive jurisdiction of the workers' compensation hearing official.
Posted 6/10/11
Argued: 3/26/12
A-112-10 Wade Stancil v. ACE USA (067640)
3. The Exclusivity Rule:
Under the circumstances of this case, which include a finding by the federal Occupational Safety and Health Administration that the accident was the result of a “willful violation” of its regulations, did the employer’s action constitute an “intentional wrong” that would preclude immunity under N.J.S.A. 34:15-8 of the workers’ compensation statute?
NJ Courts have held that trench accidents were not a mere fact of industrial life and were beyond intent of Act's immunity provision. A claim was permitted directly against the employer in addition to the workers' compensation action.
Certification granted 1/27/11
Posted 1/28/11
Argued: 10/12/11
A-69-10 Kenneth Van Dunk, Sr. v. Reckson Associates Realty Corp. (066949)
Related articles
Friday, November 18, 2011
Claim Permitted Against Employer For Concealment of Chemical Dangers
In satisfying the two prong (conduct and context) NJ test for an intentional tort against an employer, the employee's estate set forth that the employer had intentionally and fraudulently concealed information of the hazardous nature of the chemicals and substances that the employee worked with as an exterminator.
The employee, who applied pesticides for 11 years, was not furnished with adequate safety equipment and was not provided with warning materials available to the employer.
The court held that employer's conduct was substantially certain to cause injury or death. The estate filed a certification substantiating the events surrounding the exposure and death; material Safety Data Sheets; and expert reports. Where the conduct of the employer is actively misleading and illness and death were substantially certain to occur the employ can be held liable.
Where the conduct of the employer in not protecting the employee is more than a fact of industrial life and is "plainly beyond anything the Legislature intended the Workers' Compensation Act to immune," the compensation act is not an exclusive remedy against the employer.
The Court held that the employer "understood the hazardous nature of the chemicals but failed to provide the decedent with the equipment necessary to ensure his safety. ".... the employer turned a "blind eye to the risks inherent chemical in the use of the chemicals" and went as far as hiding those risks so that the employee was not aware of their existence. "Concealment is hardly an expected fact of life in industrial
employment."
Click Here For Complete Decision: Blackshear v. Syngenta Crop Protection, Inc., Civ. Action No. 10-3585 (KSH) (USDCT - NJ 2011)
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
Wednesday, March 31, 2010
Ohio Upholds New Limits on Liability Actions Against Employers
The Ohio Supreme Court has upheld a 2005 statute that restricts an employee's direct liability actions against employers. The statute requires a showing that the employer deliberately intended to injury an employee. Employees remain restricted to the the Ohio workers' compensation remedy for recovery of benefits.
"As this court has often recognized, workers' compensation laws are the result of a unique mutual compromise between employees and employers, in which employees give up their common-law remedy and accept possibly lower monetary recovery, but with greater assurance that they will receive reasonable compensation for their injury," Justice Robert Cupp wrote in one of the two opinions he authored. "Employers in turn give up common-law defenses but are protected from unlimited liability."
"As this court has often recognized, workers' compensation laws are the result of a unique mutual compromise between employees and employers, in which employees give up their common-law remedy and accept possibly lower monetary recovery, but with greater assurance that they will receive reasonable compensation for their injury," Justice Robert Cupp wrote in one of the two opinions he authored. "Employers in turn give up common-law defenses but are protected from unlimited liability."
The issue was decided when the US District Court for the Northern District of Ohio certified constitutional questions to the Ohio Supreme Court.
Click here to read more about intentional actions and workers' compensation.
| Kaminski v. Metal & Wire Prods. Co. (Slip Opinion) | 2008-0857 | 3/23/2010 | 3/23/2010 | 2010-Ohio-1027 |
| Stetter v. R.J. Corman Derailment Servs., L.L.C. (Slip Opinion) | 2008-0972 | 3/23/2010 | 3/23/2010 | 2010-Ohio-1029 |
Click here to read more about intentional actions and workers' compensation.
Saturday, February 27, 2010
Making a Fatal Circus Out of Safety
The terrible and tragic death of Daum Brancheau, the trainer who was attacked at SeaWorld by a killer whale, provides striking evidence that the present system, to make the workplace safer, is not working. The corporate incentive to maintain a safe workplace unfortunately only can be induced by economics.
Two things need to happen so that workplaces become safer. The Occupational Safety and Health Act (OSHA) need to be strengthened, and the workers' compensation system needs to remove the exclusivity bar that prevents liability claims against employers.
Workers' compensation has been in place since 1911 and limits recovery for an employee injured at work and shields employers from liability claims by injured workers. The system provides for a limitation of recovery and economic caps that shield employers from threatening damage claims. Without an economic incentive employers just won't do what's necessary to prevent accidents and injuries to employere.
Legislation, Protecting America's Workers Act H.R. 2067 S.1580 and Protecting Workers From Imminent Dangers Act of 2009 H.R.2199 , is presently under consideration to put teeth back into OSHA. Those pending changes, sadly will not help Dawn, they would be a good first step in preventing injuries and deaths like what occurred at SeaWorld in Florida.
Click here to red more about OSHA and workplace accidents and illnesses.
Saturday, August 11, 2007
NJ Permits Intentional Tort Claim Against Former Employer- PVC Exposure
While denying class action certification for a medical monitoringclass and a punitive damage class, the NJ App Div permitted an INTENTIONAL TORT action against the employer to go forward in a common law civil claim.
This case involved exposure to poly vinyl chloride at a Pantasote, a Paterson NJ plant, causing disease to former workers which is characteristic of Raynaud's phenomenon ( fingers blanch and numbnessand discomfort are experienced upon exposure to the cold), changes inthe bones at the bones at the end of the fingers [Known asacro-osteolysis (AOL)], joint and muscle pain, and scleroderma-likeskin changes (thickening of the skin, deceased elasticity and slightedema).
Inhaled vinyl chloride has been shown to increase the risk of a rareform of liver cancer (angiosarcoma of the liver) in humans. It is classified by the Environmental Protection Agency (EPA) as a Group A, human carcinogen.
Plaintiffs represented by: Jon Gelman (NJ), Ron Simon (DC), Herschel Hobson (TX) and Mark Cuker (PA)
Decision- Buynie v. Airco Co, NJ App Div 2007, Decided August 10, 2007
See related articles:
Misleading Statements Made By Vinyl Chloride Companies Held Valid Basis for Suit
Workplace Poison
Vinyl Chloride Conspiracy Documents: Part 4 (Jun 1974 - Dec 1974)
Vinyl Chloride Plants in New Jersey
This case involved exposure to poly vinyl chloride at a Pantasote, a Paterson NJ plant, causing disease to former workers which is characteristic of Raynaud's phenomenon ( fingers blanch and numbnessand discomfort are experienced upon exposure to the cold), changes inthe bones at the bones at the end of the fingers [Known asacro-osteolysis (AOL)], joint and muscle pain, and scleroderma-likeskin changes (thickening of the skin, deceased elasticity and slightedema).
Inhaled vinyl chloride has been shown to increase the risk of a rareform of liver cancer (angiosarcoma of the liver) in humans. It is classified by the Environmental Protection Agency (EPA) as a Group A, human carcinogen.
Plaintiffs represented by: Jon Gelman (NJ), Ron Simon (DC), Herschel Hobson (TX) and Mark Cuker (PA)
Decision- Buynie v. Airco Co, NJ App Div 2007, Decided August 10, 2007
See related articles:
Misleading Statements Made By Vinyl Chloride Companies Held Valid Basis for Suit
Workplace Poison
Vinyl Chloride Conspiracy Documents: Part 4 (Jun 1974 - Dec 1974)
Vinyl Chloride Plants in New Jersey
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