No Duty to Defend Intentional Tort Claim

In a per curiam opinion, the NJ Appellate Division affirmed that a workers’ compensation insurance company is not required to defend an intentional tort claim following a Section 20 resolution.

Intentional Tort v Negligence

A New Jersey appellate court found that an employee could not proceed with an intentional tort claim against an employer because the evidence needed to meet the two-prong standard was lacking.

Trench Injury Not an Intentional Wrong

A Federal Court held that injuries sustained while cleaning a trench conveyor trim removal system at a paper manufacturing facility did not meet the threshold test for an intentional tort.

Intentional Tort Claim Barred by the Exclusivity Rule

The New Jersey Workers Compensation Act (WCA), N.J.S.A. 34:15-1 to -146, generally prohibits employees from suing their employers for injuries sustained in workplace accidents. In a recent case the Court probed the boundaries of the "intentional wrong" exception to that general rule.

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. 

Not A Violation of Public Policy

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.

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.

Workers' Compensation News - July 10, 2007, Vol. 5 Issue 107

Workers' Compensation News - July 10, 2007, Vol. 5 Issue 107

FLORIDA EXPANDS INTENTIONAL TORT EXCEPTION Employee's injury was substantial certainty from employer's failure to respond to requests for new ladder did not require proof that employer concealed danger. "Even though case law on the intentional tort exception to workers' compensation immunity is devoid of any defined test that will establish substantial certainty as a matter of law, it is evident that concealment of the dangerous condition is only one of several factors in a nonexclusive list. " Bakerman v The Bombay Company, ___So. 2d____, 2007 WL 1774420 (Fla.), decided June 21, 1007

OSHA ORDERED TO RELEASE TOXIC EXPOSURE DATABASE — More than 25 Years of Workplace Sampling Yields Public Health Research Bonanza Washington, DC — The U.S. Occupational Safety & Health Administration (OSHA) has wrongfully withheld data documenting years of toxic exposures to workers and its own inspectors, according to a federal court ruling posted today by Public Employees for Environmental Responsibility (PEER). As a result, the world’s largest compendium of measurements of occupational exposures to toxic substances - more than 2 million analyses conducted during some 75,000 OSHA workplace inspections since 1979 - should now be available to researchers and policymakers. Each year, an estimated 40,000 U.S. workers die prematurely because of exposures to toxic substances on the job. Press Release: http://www.peer.org/news/news_id.php?row_id=882 Decision: http://www.peer.org/docs/dol/07_02_07_finkel_foia_ruling.pdf


ASBESTOS: Travelers Settles AC&S Claims The Travelers Cos. Inc. said today it has settled litigation with ACandS Inc., a former distributor and installer of asbestos products, for $449 million.http://www.courant.com/business/hc-trav-litig,0,1651056.story

ASBESTOS: NO SAFE LEVEL OF EXPOSURE Cong. Jerrold Nadler (D-NY) held a hearing on June 25 on the federal government’s response to the hazardous air contaminants that polluted lower Manhattan after the 9/11 attacks. The featured witness was former EPA administrator Christine Todd Whitman, who was in the hot seat for her claims that the air in NYC was safe to breathe. Much less attention was paid to former OSHA assistant secretary John Henshaw, who sat next to Whitman, but was left largely unscathed by the questioning. At least one Henshaw exchange deserves attention. The former OSHA chief insisted there are “safe levels of exposure to asbestos.” FYI: The WHO’s policy statement on the elimination of asbestos-related disease is here and the Institute of Medicine’s report on Asbestos: Selected Cancers (2007) is here. http://thepumphandle.wordpress.com/2007/07/06/safe-levels-of-asbestos-by-john-henshaw/

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Heath Concerns About the Misuse of Pesticides for Bed Bug Control

Hotel workers as well as consumes are being cautioned cautioned about exposure to pesticides to control bed bugs.
The Agency for Toxic Substances and Disease Registry (ATSDR) and the Centers for Disease Control and Prevention (CDC) are alerting the public to an emerging national concern regarding misuse of pesticides to treat infestations of bed bugs and other insects indoors. Some pesticides are being applied indoors even though they are approved only for outdoor use. Even pesticides that are approved for indoor use can cause harm if over applied or not used as instructed on the product label.
There has been a dramatic increase in the number of bed bug-related inquiries received by the National Pesticide Information Center (NPIC) over the past several years, with many involving incidents of pesticide exposure, spills, or misapplications. From January 2006-December 2010, NPIC reported 169 calls to their hotline where residents, homeowners, or pesticide applicators sprayed pesticides indoors to treat bedbugs. These cases involved pesticides that were misapplied, not intended for indoor use, or legally banned from use. Of those, 129 resulted in mild or serious health effects (including one death) for persons living in affected residences.
ATSDR warns that outdoor pesticides should not be used indoors under any circumstances. Homeowners and applicators should always carefully read the product label to make sure that:
it has an EPA registration number

• it is intended for indoor use
• it is effective against bed bugs (the label should say it is meant to be used to treat your home for bed bugs) and
• you know how to properly mix the product (if a concentrate) and where and how to apply it safely within the home.
• ....
  Jon L.Gelman of Wayne NJ, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).  

More About Pesticides

Workers' Compensation: Aerial spraying pesticides to fight ...

Aug 22, 2012

Based on reports from the United States Centers for Disease Control (CDC) arial spraying of pesticides has been mandated in Texas because of the number of reported cases of West Nile Flu. Questions are now being raised ...

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Workers' Compensation: Monsanto guilty of chemical poisoning in ...

Feb 14, 2012

Consistent with an enforcement trend by the EU to reduce agricultural pesticides used by 50% between 2008-2018, a French court on Monday declared U.S. biotech giant Monsanto guilty of chemical poisoning of a French ...

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Intentional Tort Claim Against Employer Proceeds for Pesticide

Aug 11, 2010

A US District Court in NJ is allowing a claim of injured agricultural worker to proceed against an employer directly for an intentional tort flowing from a pesticide spraying. The workers, residents of Puerto Rico, were employed ...

http://workers-compensation.blogspot.com/

Mother's Occupational Exposure to Pesticide Increases Child's Risk

Jul 02, 2009

A recent study by the McLaughlin Centre for Population Health Risk Assessment of the University of Ottawa finds that an increased risk of childhood leukemia is associated with the mother's exposure at work to pesticides.

http://workers-compensation.blogspot.com/

Intentional Tort Claim Against Employer Proceeds for Pesticide Spraying

A US District Court in NJ is allowing a claim of injured agricultural worker to proceed against an employer directly for an intentional tort  flowing from a pesticide spraying. 


The workers, residents of Puerto Rico, were employed on  a NJ farm harvesting produce. hey were employed to work in fields that the employer recently applied pesticides or was actually spraying the pesticides. Is was alleged that the employer failed to provide medical assistance after the workers became ill and did not provide the employee's physicians with complete with complete information on the [potential pesticide exposure that would have allowed better treatment.


The Court denied the defendant's motion for summary judgement and is allowing the case to be heard.


Montalvo v. Larchmont Farmes, Inc., Civil Action No. 06-2704 (RBK/AMD) 2010 WL 3025045 (D.N.J.) decided July 29, 2010,


Click here to read more about pesticide exposures and workers compensation.


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 exposures,

EPA Takes Action to Protect Public from an Illegal Nano Silver Pesticide in Food Containers; Cites NJ Company for Selling Food Containers with an Unregistered Pesticide Warns Large Retailers Not to...

Today's post was shared by US EPA News and comes from yosemite.epa.gov

 The U.S. Environmental Protection Agency has issued an order to the Pathway Investment Corp. of Englewood, New Jersey to stop the sale of plastic food storage containers that have not been tested or registered with the EPA, in violation of federal pesticides law. The company’s Kinetic Go Green Premium Food Storage Containers and Kinetic Smartwist Series Containers both contain nano silver as an active ingredient, and the company markets other products as containing nano silver, which the company claims helps reduce the growth of mold, fungus and bacteria. Such claims can only be made on products that have been properly tested and are registered with the EPA.

“Claims that mold, fungus or bacteria are controlled or destroyed by a particular product must be backed up with testing so that consumers know that the products do what the labels say,” said EPA Regional Administrator Judith A. Enck. “Unless these products are registered with the EPA, consumers have no information about whether the claims are accurate. The EPA will continue to take action against companies making unverified public health claims.”

Some pesticides have been linked to various forms of illnesses in people, ranging from skin and eye irritation to cancer. Some pesticides may also affect the hormone or endocrine systems. In many situations, there are non-chemical methods that will effectively control pests.

Under federal pesticide...

[Click here to see the rest of this post]

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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 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.

Related:
New York City workers have high pesticide exposure
Oct 04, 2013
The findings “underscore the importance of considering pest and pesticide burdens in cities when formulating pesticide use regulations,” the researchers from the city's Department of Health and Mental Hygiene wrote in the ...
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Intentional Tort Claim Against Employer Proceeds for Pesticide
Aug 11, 2010
A US District Court in NJ is allowing a claim of injured agricultural worker to proceed against an employer directly for an intentional tort flowing from a pesticide spraying. The workers, residents of Puerto Rico, were employed ...
http://workers-compensation.blogspot.com/

Workers' Compensation: Highly hazardous pesticides should be ...
Aug 11, 2013
The tragic incident in Bihar, India, where 23 school children died after eating a school meal contaminated with monocrotophos, is an important reminder to speed up the withdrawal of highly hazardous pesticides from markets ...
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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

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.

Preventing Occupational Disease: NJ Governor Murphy Supports a Fracking Ban

The State of New Jersey now supports a ban on fracking. NJ Governor Pat Murphy recognized the health and environmental consequences of using this process to explore and mine for natural gas.

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

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.

Related Blog Articles

Workers' Compensation: Bad Faith Claims Maybe Going to the Jury

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...

http://workers-compensation.blogspot.com/

NJ Supreme Court To Rule on Several Critical Issues

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 ...

http://workers-compensation.blogspot.com/

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• Willful OSHA Violation Alone Not Enough Alone to Circumvent the Exclusivity Doctrine
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• Aging Population Requires More Attention

Exclusivity Rule Adopted in MDL Aviation Law Case

Continental Connection Bombarder Q400 operated by Colgan Air
Photo Credit: Wikimedia Commons

In a Multidistrict Litigation (MDL) case pending in New York, a Federal Court ruled that the New Jersey law governing exclusivity of claims barred an employee from proceeding with an intentional tort claim against the employer. Despite the fact that the fatal plane crash occurred in New York, the Court adopted New Jersey law since the the employer was based in New Jersey, the employee was based in New Jersey and workers' compensation benefits were being paid under New Jersey law by a New Jersey based and claims unit in New Jersey.


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

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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

Court Rules Site of Accident Invokes 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...

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Willful OSHA Violation Alone Not Enough Alone to Circumvent the

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 ...

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Workers' Compensation: Exclusivity Doctrine Shields an Employer ...

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 ...

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NJ Supreme Court To Rule on Several Critical Issues

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 ...

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• Aging Population Requires More Attention

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• Overwork A Recognized Compensable Condition

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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. 

Lessons from Asbestos Litigation Apply to COVID Claims

The rapid emergence of COVID-19 creates new challenges for the nation’s patchwork of state run workplace benefit delivery systems. This paper draws a comparison between COVID claims and asbestos claims, the “Largest and Longest” wave of occupational disease claims in the United States. The comparison offers insight into avoiding past economic, administrative and benefit delivery pitfalls. The lessons from asbestos claims provide an insight into maintaining a sustainable workers’ compensation system to meet the surge of COVID claims.

The Next Wave: N.H.L. Players Sue League Over Head Injuries

Occupational illness claims have been a traditional battleground in workers' compensation for larger and more significant lawsuits and dynamic changes in the safety of the workplace induced by economics.

From the lack of the incorporation of occupational claims in the 1911 model workers' compensation acts, in the 1950's, employers and their insurance companies sought refuge under the "exclusivity bar" of the. workers' compensation act to shield themselves from negligence actions for silicosis and asbestosis claims.

The creativity of claimant's lawyers, and the blatant intentional tort acts of unscrupulous asbestos companies, brought forth a sweeping change in the economic balance as claimants used the civil justice system to establish an avenue for adequate compensation for asbestos victims (lung cancer, asbestosis and mesothelioma claims).

Asbestos litigation, "longest running tort, continues today and is the perfect example of the societal benefits of a working civil justice system.  In fact, the same dynamic existed in: tobacco litigation, lead paint litigation, latex litigation and has been repeated many times over.

The civil justice system, not the workers' compensation system, established an economic incentive establishing a safer workplace for workers and their families.

It is more than obvious that contact sports are seeing the next wave of litigation as the employers and their insurance companies accelerate the cycle, by barring professional athletic players from even seeking workers' compensation benefits, ie. California.

Since it appears that no safe helmet can be manufactured to protect the mayhem of some contact sports, the business of sports will be the next "industry" to experience economic incentives to make the workplace safer. The higher education system will just have to find another economic engine to fund colleges and university and stop luring students to play dangerous sports in hope of winning the professional sports lottery.

First football, now hockey, are emerging targets of the civil justice system as the economics of safety takes hold and the need for safety takes hold. Today's post is shared from the nytimes.com.

Ten former N.H.L. players sued the league Monday for negligence and fraud, saying the sport’s officials should have done more to address head injuries but instead celebrated a culture of speed and violence.

The players, who were in the league in the 1970s, ’80s and ’90s, filed their suit in federal court in Washington. One of the lead lawyers is Mel Owens, a former N.F.L. player who has represented scores of other retired players in workers’ compensation cases.

[Click here to see the rest of this post]

….

Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 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.

Found on

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