NJ: New Administrative Supervisory Judge Appointment and Assignments

Hon. Russell Wojtenko, Jr. Director and Chief Judge of Compensation has issued the following Memo on July 7, 2016:

"I am happy to announce, with the approval and consent of Harold Wirths, Commissioner of Labor and Workforce Development, effective July 9, 2016, the Hon. Ashley Hutchinson has been appointed our fifth Administrative Supervisory Judge for the N.J. Division of Workers' Compensation.

"Judge Hutchinson will supervise the New Brunswick, Elizabeth and Jersey City vicinages.
Administrative Supervisory Judge Ernille Cox will now supervise the Camden, Bridgeton and Atlantic City vicinages.

"Administrative Supervisory Judge Ingrid French will supervise the Trenton, Lebanon, and Mt. Arlington. Administrative Supervisory Judge Philip Tometta will supervise the Newark, Hackensack, and Paterson vicinages. Administrative Supervisory Judge Bradley Henson, Sr., will supervise the Toms River, Freehold, and Mt. Holly vicinages.

Toxic-Tort: NJ Supreme Court Holds That an Employer Has a Duty to a Household Contact

"We hold that the Olivo duty of care may, in proper circumstances, extend beyond a spouse of a worker exposed to the toxin that is the basis for a take-home toxic-tort theory of liability." Justice LaVecchia, NJ Supreme Court

An employer's duty to a employee's household contact was the focus of decision announced by the NJ Supreme Court. The NJ Supreme Court reviewed the question, that was certified by the US Third Circuit Court of Appeals, to define the duty and its scope. The household contact, the finance, subsequently spouse, suffered beryllium related disease causally related to the employee's toxic exposure.

The case arose out of a household contact's exposure to beryllium brought home on the employee's cloths. At the time of the exposure, 30 years ago, the household contact was the fiance of the employee.

"The United States Court of Appeals for the Third Circuit having certified to the Supreme Court the following question of law pursuant to Rule 2:12-1:And the Court having determined to accept the question as certified."Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006), extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner's premises, and, if so, what are the limits of that liability rule and the associated scope of duty?

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 interest of brevity, portions of any opinion may not have been summarized.) 

Brenda Ann Schwartz v. Accuratus Corporation (A-73-14) (076195) 

Argued April 25, 2016 -- Decided July 6, 2016 

LaVECCHIA, J., writing for a unanimous Court. 

In this appeal, the Court considers the following question of law certified by the United States Court of Appeals for the Third Circuit:  Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner’s premises, and, if so, what are the limits on that liability rule and the associated scope of duty? 

The action before the Third Circuit involves plaintiffs Brenda Ann and Paul Schwartz.  After Brenda was diagnosed with chronic beryllium disease, the Schwartzes filed a complaint raising claims of negligence, products liability, and strict liability against defendant Accuratus Ceramic Corporation (Accuratus), a ceramics facility where Paul had worked in 1978 and 1979.  In 1979, Paul began sharing an apartment with an Accuratus co-worker, Gregory Altemose.  At the time, Paul and Brenda were dating and Brenda frequently visited and stayed overnight at the apartment.  After the couple married in June 1980, Brenda and Paul resided in the apartment, where Altemose also continued to live.  Brenda performed laundry and other chores at the apartment, both when she stayed with Paul prior to their marriage and after she moved in as Paul’s wife.   

The complaint alleges that employees at Accuratus’s facility were exposed to beryllium, which, according to plaintiffs, may result in cancer and other diseases of the lungs and skin.  Plaintiffs allege that Brenda was subjected to take-home beryllium exposure due to Paul and Altemose bringing the substance home from Accuratus on their work clothing.  Thus, plaintiffs’ take-home-toxin theory of liability is based in part on Brenda’s exposure to beryllium for the period that she frequently stayed over at the apartment prior to her marriage to Paul.  Additionally, the take-home-toxin theory encompasses the time period after the marriage, premised on the theory that Altemose continued to bring the substance home to the shared apartment from his work at the Accuratus facility. 

Originally filed in Pennsylvania state court, plaintiffs’ case was removed to the United States District Court for the Eastern District of Pennsylvania.  Plaintiffs’ motion to remand was denied.  The federal district court concluded that “neither [New Jersey nor Pennsylvania] has recognized a duty of an employer to protect a worker’s non-spouse . . . roommate from take-home exposure to a toxic substance.”  The court pointed to Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) as support for that proposition.  The court denied plaintiffs’ motion for reconsideration, commenting that to interpret Olivo as supporting a duty to Brenda would “stretch the New Jersey Supreme Court’s decision . . . beyond its tensile strength.”  After the Schwartzes filed an amended complaint, Accuratus filed a motion to dismiss, which was granted.  The federal district court concluded as a matter of law that Accuratus did not owe a duty of care to Brenda. 

Following additional motion practice, the Schwartzes filed a notice of appeal with the Third Circuit.  The Third Circuit filed a Petition for Certification of a Question of State Law, pursuant to Rule 2:12A-1, which the Court accepted.  222 N.J. 304 (2015). 

HELD:  The duty of care recognized in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) may, in proper circumstances, extend beyond a spouse of a worker exposed to a workplace toxin that is the basis for a take-home toxic-tort theory of liability.  

1. The threshold question certified by the Third Circuit -- whether the premises liability rule set forth in Olivo may extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner’s premises -- necessitates a review of Olivo and the reasoning that led to its holding.  In Olivo, the Court considered whether a landowner could be liable for injuries allegedly caused from asbestos exposure experienced by the wife of a worker who had performed welding and steam fitting tasks that brought him into contact with asbestos on the landowner’s premises.  There, the Court explained “whether a duty of care can be owed to one who is injured from a dangerous condition on the premises, to which the victim is exposed off-premises, devolves to a question of foreseeability of the risk of harm to that individual or identifiable class of individuals.”  Id. at 403.  Once foreseeability is established, a court must evaluate whether recognition of a duty accords with fairness, justness, and predictability, applying the following factors derived, in part, from Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993):  (1) the relationship of the parties, namely the relationship between plaintiff and defendant; (2) the nature of the attendant risk, including the danger of the toxin at issue and how easily the toxin is transmitted and causes injury (the greater the danger, the greater the duty); (3) the opportunity and ability to exercise care; and (4) the public interest in the proposed solution.  (pp. 7-9)   

2. Based on the facts presented in Olivo’s summary judgment record, the Court determined that the landowner should have foreseen that sending unprotected, soiled work clothes home on the backs of workers would result in their clothes being laundered.  That placed the person, who could be expected to perform the task of handling and laundering the unprotected work clothing, in regular and close contact with material that had become infiltrated with asbestos in the worksite.  As a result, the Court held that a duty of care to protect on-site workers from exposure to friable asbestos in the worksite extended to spouses “handling the workers’ unprotected work clothing based on the foreseeable risk of exposure from asbestos borne home on [the workers’] contaminated clothing.”  Olivo, supra, 186 N.J. at 404-05 (emphasis added).  Applying the Hopkins factors, the Court concluded that fairness and justness would be served by extending off-premises liability in that setting.  (pp. 9-11)

3. In so holding, the Court determined that the landowner’s concerns about essentially limitless liability were unfounded because the duty recognized under the circumstances of Olivo was “focused on the particularized foreseeability of harm to plaintiff’s wife.”  Id. at 405.  That concise statement cannot be taken out of its context -- a duty was found to exist based on the foreseeability of regular and close contact with the contaminated material over an extended period of time.  Id. at 404-05.  The duty of care for take-home toxic-tort liability discussed in Olivo was not defined by the role of lawfully wedded spouse to someone who worked on the landowner’s premises.  Rather, it was foreseeable that Eleanor (plaintiff’s wife) would be handling and laundering the plaintiff’s soiled, asbestos-exposed clothes, which the landowner failed to protect at work and allowed to be taken home by workers.  That easily foreseeable, regular, and close contact with the dangerous condition produced the conclusion that the landowner could be held liable to Eleanor for her injuries.  (pp. 11-13)

4. Tort law is built on case-by-case development based on the facts presented by individual cases.  The evolution of case law must reflect the simultaneous evolution of societal values and public policy.  Olivo does not suggest that the duty recognized must remain static for all future cases -- no matter the pleadings and proofs, including unknown aspects of other toxins -- and that take-home toxic-tort liability must remain limited to a spouse handling take-home toxins.  Olivo does not state, explicitly or implicitly, that a duty of care for take-home toxic-tort liability cannot extend beyond a spouse.  Nor does it base liability on some definition of “household” member, or even on the basis of biological or familial relationships.  Olivo must be recognized as a step in the development of the common law, which of necessity is built case by case on individual factual circumstances.  (pp. 13-16)

5. The Court cannot define the contours of the duty owed to others in a take-home toxic-tort action through a certified question of law.  While there may be situations in which household members are in contact with toxins brought home on clothing, a refined analysis for particularized risk, foreseeability, and fairness requires a case-by-case assessment in toxic-tort settings.  Although the Court cannot predict the direction in which the common law will evolve, the Court identifies certain factors that will be important as such cases present themselves.  In sum, the duty of care recognized in Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse.  The assessment should take into account a weighing of the factors identified herein to determine whether the foreseeability, fairness, and predictability concerns of Hopkins should lead to the conclusion that a duty of care should be recognized under common law.  (pp. 16-19)

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. 

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OSHA cites Jersey City food manufacturer after worker dies after 24-foot fall

Employer name: Wei-Chuan U.S.A. Inc.

Inspection site: 80 Amity St., Jersey City, New Jersey

Citations issued: On June 22, 2016, the U.S. Department of Labor's Occupational Safety and Health Administration issued citations to Wei-Chuan U.S.A. Inc. for one willful, one repeat and sixserious violations.

Inspection findings: OSHA initiated an inspection on Dec. 27, 2015, after the Jersey City Police Department notified the agency of a worker's death at the company's Jersey City food distribution warehouse. Inspectors found a 60-year-old warehouse supervisor died after falling 24 feet from a top-tier warehouse rack. Inspectors learned the company knowingly allowed forklifts to elevate employees on pallets as they conducted inventory.

OSHA cited the company with a willful violation for its failure to use an approved platform for raising employees on forklifts, and failure to provide fall protection. Hazard communication training deficiencies resulted in the repeat citation, for which OSHA cited Wei-Chuan previously in February 2011.

The agency found the serious violations were due to employees being allowed to improperly climb warehouse racks, lack of hand protection while handling hazardous materials, electrical hazards, hazard communication deficiencies and lack of forklift training.

Quote: "Wei-Chuan U.S.A. failed to provide required fall protection and ensure its forklift practices were safe, resulting in a preventable fatality. This tragedy could have been prevented if the company used basic safeguards and properly trained its employees to recognize workplace hazards," said Brian Flynn, acting director at OSHA's Parsippany Area Office.

Proposed penalties: $107,000

The citations can be viewed at: http://www.osha.gov/ooc/citations/Wei-Chuan_1114139.pdf

Wei-Chuan U.S.A. Inc. is a food manufacturing and distribution company that produces frozen food products and is headquartered in Bell Gardens, California.

The employer has 15 business days from receipt of its citations and proposed penalties to comply, request a conference with OSHA's area director or contest the findings before the independentOccupational Safety and Health Review Commission.

….

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 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

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OSHA fines Johns Manville after employee suffers hand amputation

Employer name: Johns Manville

Inspection site: 200 West Industrial Blvd., Cleburne, Texas 76033

Citations issued: June 29, 2016

Investigation findings: The U.S. Department of Labor's Occupational Safety and Health Administration began an inspection Feb. 11, 2016, after reports that a machine severed an employee's hand at the Johns Manville Cleburne manufacturing facility as he tried to clear a jam in a machine. Investigators issued citations for two repeat and three serious violations. The agency issued repeat citations for lacking machine guards on a conveyor to protect workers from in-running nip point hazards and for allowing an unguarded and protruding shaft to project more than one-half its diameter. OSHA cited the company for the same or similar violations at its locations in Ohio and New Jersey.

Serious violations include:

• Energy-control procedures did not clearly outline steps for shutting down, isolating, blocking and securing machines to control hazardous energy.
• When locking out for energy control, the company's periodic inspection did not include a review between the inspector and each authorized employee.
• The employer failed to train authorized employees adequately to recognize hazards associated with hazardous energy.

OSHA initiated the investigation under a National Emphasis Program for Amputation.

Proposed Penalties: $49,600

Quote: "Johns Manville's flawed procedures to control hazardous energy sources and a lack of machine guards ultimately led to an amputation," said Jack A. Rector, OSHA's area director in Fort Worth. "The company should have evaluated its lockout/tagout program and provided proper machine guarding. It is simply unacceptable that a 34-year-old father of four young children suffered a gruesome injury, and has had life forever changed by an incident that was preventable."

Link to the citations: http://www.osha.gov/ooc/citations/JohnsManville_1125065.pdf

….

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 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Early screening spots emergency workers at greater risk of mental illness

Today's post is shared from sciencedaily.com

Emergency services workers who are more likely to suffer episodes of mental ill health later in their careers can be spotted in the first week of training. Researchers wanted to see if they could identify risk factors that made people more likely to suffer post-traumatic stress (PTSD) or major depression (MD) when working in emergency services.

Researchers from the University of Oxford and King's College London wanted to see if they could identify risk factors that made people more likely to suffer post-traumatic stress (PTSD) or major depression (MD) when working in emergency services.

Dr Jennifer Wild from the University of Oxford explained: 'Emergency workers are regularly exposed to stressful and traumatic situations and some of them will experience periods of mental illness. Some of the factors that make that more likely can be changed through resilience training, reducing the risk of PTSD and depression. We wanted to test whether we could identify such risk factors, making it possible to spot people at higher risk early in their training and to develop interventions that target these risk factors to strengthen their resilience.'

Click here to read the entire article.

….

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 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Happy 4th of July

Happy 4th of July

 “Where liberty dwells, there is my country.”

Benjamin Franklin

US Worker Infected by Zika Virus - Is the Workers' Compensation System Ready?

The emerging viral infection, Zika, is now begun to plaque US workers. The Pennsylvania Allegheny County Department of Health (ACDH) reports that a researcher was infected by a needle stick wound. This is the 4th confirmed case of Zika virus reported by the ACHD.