Archive for April, 2013

The “Injury-Free Workplace”: A Myth?

By Kendall W. Medway

Tuesday, April 30th, 2013

During a recent drive to Court in New Brunswick, I passed a large industrial facility along the side of the road.  Emblazoned in large letters on the side of the building was the following statement:  Eight Injury-Free Years!  I have to admit that it sounded very impressive at first, but then I started thinking about the implications of such a statement.

Given the size of the facility I feel that I have to take a jaundiced view of the statement’s truthfulness.  While it would be nice to believe that a facility of that size could be sophisticated and forward-thinking enough to render itself “safe,” there is a much likelier explanation for the statement:  that the employees of the facility simply don’t tell anybody about their workplace injuries.

Think about it.  An employer that creates a culture of fear surrounding the occurrence and reporting of workplace injuries could easily make such a statement.  If the employees are concerned that reporting a work injury could result in the loss of their jobs, or other retaliatory action, the frequency of such injuries will drop substantially (at least on paper).

However, keeping silent about a work injury hurts not just the employee, but everybody in the long run.  It hurts the employee on a physical level, but it also hurts the insurance carrier, since it’s paying for treatment that workers’ compensation benefits should cover.  It even hurts the other employees, since the company is much less likely to put safety measures in place without the financial impetus of rising insurance costs at the end of each year.

So, if you get hurt at work, be sure to report the incident to your employer and get in touch with a knowledgeable attorney for assistance.  You’ll be glad in the long run.

Giving Notice for a Work Related Accident

By Jeffrey S. Monaghan

Tuesday, April 16th, 2013

Under our workers’ compensation statutes, an employee who is involved in a work related accident is required to give notice of this accident to their employer within 90 days of the date of the accidents.  Failure to do so will prevent the employee from recovering any workers’ compensation benefits in connection with the accident.

On March 11, 2003, our New Jersey Appellate Division in the case of Adler v. Lebanon Township, affirmed the decision of a workers’ compensation trial judge dismissing a workers’ compensation claim petition that had been filed on behalf of a voluntary emergency technician (EMT) for the Township of Lebanon because the employee did not report his work related accident within the 90 day period.

In this case, an emergency medical technician was injured while responding to a motor vehicle accident on November 18, 2008.  He did not notify anyone associated with the Township about this accident until February of 2010.  On appeal, the injured volunteer argued to the Appellate Court, that the Trial Judge had erred by failing to consider that his delay with seeking compensation was due to his unawareness of a causal link between the accident and the ultimate injuries that he sustained.  Mr. Adler argued that under these circumstances, the court of compensation should have tolled and the running of the notice statute until February of 2010, when his physician first informed him that his injuries were related to the November 2008 work injury.

The Appellate Division in affirming the Trial Judge’s decision held that the record supported the findings of the trial judge that a reasonable person facing the volunteer EMT circumstances would have been aware that he sustained a work related compensable injury on November 18, 2008.  This failure to give timely notice to his employer under these circumstances is legally untenable.

It is critically important that an employee involved in any type of work related incident that may possibly result in some type of bodily injury give notice of the incident to a supervisor or employer representative.  If possible, the employee should request that an incident report setting forth a brief description of the incident and the specifics of the physical injury be completed.

Many times an employee is not initially sure whether a work related accident will actually cause any permanent physical injury.  If following an accident an injury clears without the need for any such medical treatment “no harm, no foul”  however, if the injury becomes somewhat more disabling and requires medical treatment, by providing timely notice of the incident to a supervisor or employer’s representative, the employee’s workers’ compensation rights will have been fully preserved and protected.  Such notice must be given to the employer within 90 days of the date of the incident.

New Jersey Workers’ Compensation: Appellate Division Upholds Dismissal of Worker’s Claim for Gross Negligence

By Gary E. Adams

Thursday, April 11th, 2013

In a recent decision by the New Jersey Appellate Division, the Court re-affirmed the exclusivity section of New Jersey’s Worker’s Compensation Act, which provides that an injured worker can only pursue a civil lawsuit against his employer if there is “intentional wrong”. In New Jersey, an employee can avoid the exclusive remedy provision (known as the “workers’ compensation bar”) in the Worker’s Compensation Act only if the employer knowingly exposes the employee to a “substantial certainty of injury” and the injury sustained is not a “fact of life of industrial employment” which the New Jersey legislature intended the Worker’s Compensation Act to immunize. However, merely proving a high probability of injury or knowledge that injury or death could result is insufficient to avoid the exclusivity of the Worker’s Compensation Act.

In the matter of Fendt v. Abramson, the employee was working on a driveway paving job as a traffic flagger when he was struck by a vehicle.  He had been directed by his supervisor to direct traffic around the construction site.  He was directed to stand in the street with nothing more than a flag in his hand.  The employer later plead guilty to violating traffic safety laws. In addition, the employer conceded it had traffic safety equipment available, but did not use it. Plaintiff’s expert opined that plaintiff’s employer “knowingly exposed plaintiff to a risk that was substantially or virtually certain to result in harm.” At the close of discovery, the defendant employer was granted summary judgment on the basis that while its conduct may have been negligent, it was not an “intentional wrong.” The Appellate Division affirmed, noting that while the employer’s conduct may have been grossly negligent, there was no affirmative act taken by plaintiff’s employer that made the workplace significantly less safe for its employees.

TheNew Jerseyappellate courts have consistently limited the “intentional act” exception to the Worker’s Compensation Act. These decisions make it clear that even where employers are grossly negligent in exposing workers to extremely dangerous work environments, they are immune from civil lawsuits due to their conduct, and the injured worker is limited to his workers’ compensation remedy.