Compensability

Many employers offer flu shots and other inoculations to employees on company premises during work hours. Complications from flu shots are very rare but the Centers for Disease Control have noted that about one in 100,000 people who get a flu shot will develop Guillain-Barre syndrome, which is a debilitating nerve disorder. There are also rare cases of life threatening allergic reactions, and people over 65 are generally at greater risk due to the prevalence of other medical conditions, such as blood, heart, lung, kidney or liver disorders. (more…)

Since the legislative change in 1979 to substitute a premises rule for the going-and-coming rule, there have been many attempts to expand the “special mission” exception. The general rule is that only injuries on employer-owned or maintained premises are covered. One big exception involves injuries that emanate from the performance of special missions. That latest attempt to prove a special mission comes from Delle Donne v. Shiki Japanese Steakhouse of Middletown, A-1919-10T1 (App. Div. 2011). (more…)

John Gioia worked for Herr Foods as a delivery person. He injured his right ankle stepping from his delivery truck on November 23, 2007. He began authorized treatment right away and underwent an MRI one month later which revealed an avulsion fracture and sprain of the deltoid ligaments. (more…)

In addition to terminating temporary disability benefits on maximal medical improvement, an employer can terminate such benefits when the employee can return to work light or modified duty under Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 (App. Div. 1986). The basic rule which emerges from Harbatuk is this:  the employer has to offer a light-duty job to the employee in order to terminate temporary disability benefits. If the employee rejects the light-duty offer, the employer can still terminate temporary disability benefits. Obviously, the light-duty job has to be one that is safe for the employee to perform. A functional capacity exam (FCE) can be of real assistance in determining whether the employee can safely perform the light-duty job.

Light duty is not defined in the New Jersey Workers’ Compensation Act. A better term would be transitional duty since an employee may resent the implication that the temporary duty is “light.” Another term used is “temporary alternative duty” or “modified duty.” Whatever the terminology, the light-duty phase is the bridge between being out of work and full duty.

In New Jersey it is very difficult to get past the exclusive remedy provision.  The leading case on proving an intentional harm claim sufficient to get beyond the exclusive remedy is Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161 (1985) in which plaintiffs had shown intentional wrong by respondent in deliberately concealing x-ray evidence of asbestos injuries. In Millison the court set forth two factors in proving deliberate intent to injure:

1. Conduct which amounts to substantial certainty of harm, well beyond negligence or recklessness; and
2. A context in which the injury or illness is plainly beyond anything the Legislature could have contemplated as entitling the employee to recover only under the New Jersey Workers’ Compensation Act, excluding those risks that are simply a fact of life in the industrial setting.

Until 2002, the standard employed to decide whether conduct constituted intentional harm was so rigid that it basically amounted to proving that an employer created a virtual certainty of harm. Then came a series of decisions from the New Jersey Supreme Court which opened up the exclusive remedy provision. One of the leading cases is Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002), Rudolph Laidlow worked as a setup man, which required him to insert metal bars into a channel which led to a rolling mill. He sometimes applied pressure to the bars to feed them into the rollers. One day his glove got caught while pushing a bar, and his hand was yanked into the roller, causing numerous amputations and loss of skin.

The facts revealed that his employer never engaged the safety guard. When OSHA inspectors came to the plant over the years, the supervisor would instruct employees to release the wire which was holding up the safety guard. When they would leave, the safety guard would then be disengaged.

There were “near misses” over the years, and Laidlow spoke to his supervisor, Mr. Portman, three times prior to the accident about the need to engage the safety guard. Mr. Portman ignored Laidlow’s request. Plaintiff’s engineering expert testified that there was a “virtual certainty” of injury to Laidlow or others without using the safety guard.

The employer argued that plaintiff could not sue the employer civilly because there was no evidence of intentional wrong by AMI, the employer. AMI contended that under Millison, supra, plaintiff needed to prove a subjective intent to injure. The Supreme Court rejected this approach. It chose a two-part test:

1.         Plaintiff must show there was a substantial certainty of injury; and

2.         The injury and circumstances surrounding it must not be part and parcel of everyday industrial life.

Under this test, the Supreme Court concluded a jury might find that the actions of deceiving OSHA showed a substantial certainty of injury known to the employer and that the resulting injury to Laidlow was more than a fact of life of industrial employment.