Shielding the employer from liability: the substantial burden of proof required to overcome the exclusive remedy provision of the Workers' Compensation Act.

The plaintiff, a Vietnamese immigrant, was employed as a line-worker for the defendant, a manufacturer of baked goods. The plaintiff did not speak, read or understand English. On November 7, 2003, the plaintiff was packaging biscotti as they were dispensed from a biscotti machine. Though the plaintiff had worked on various other machines during her approximately one year of employment with the defendant, she had never worked on the biscotti machine before this day, nor had she received any type of training or instruction on how to operate the machine. The machine – housed inside a four-foot by six-foot sheet-metal box – was designed to convey a loaf of biscotti through a series of blades which would then cut the biscotti into identically sized pieces ready for packaging. A sheet-metal guard prevented any inadvertent contact with the blades by the machine's operator, and a warning label cautioned – both pictorially and in writing in English – against placing one's hand inside the machine. On the day of the accident, the machine's conveyor mechanism became clogged with bits of biscotti. While the machine was still running, the plaintiff reached her hand under the sheet-metal guard and into the machine in an attempt to remove the clog. Her hand came into contact with the blades causing significant injury. The plaintiff filed an action in tort against the defendant. In granting the defendant's motion for summary judgment, the trial judge found that the plaintiff had not presented sufficient evidence to overcome the intentional wrong exception to the workers’ compensation exclusivity bar. The judge relied on Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985), which holds that the "exclusive remedy" provision of the Workers' Compensation Act prevents an employee from suing his/her employer in a civil action except for those injuries which have resulted from the employer’s intentional wrong. The Millison Court articulated a two-prong test an injured worker must satisfy to overcome the exclusivity bar: "(1) The “conduct” prong requires that the plaintiff allege sufficient facts to demonstrate that his or her employer knew its actions were substantially certain to result in injury to the employee; and (2) The “context” prong requires a showing that the resulting injury and the circumstances of its infliction on the worker constituted more than a mere fact of life of industrial employment." The trial judge found that the plaintiff had satisfied neither prong. As to the first prong, the judge rejected the plaintiff’s argument that her lack of training and inability to read English made it substantially certain that she would have been seriously injured by the biscotti machine. The judge reasoned that the employer could easily assume that a rational person would not place his or her hand in a machine without first disengaging the machinery or powering it off. As such, neither the defendant’s failure to instruct the plaintiff not to insert her hand into the machine while it was operating, nor the plaintiff’s inability to comprehend the warning label affixed to the machine, rose to the level of a substantial certainty that the plaintiff would be injured. With regards to the second prong, the trial judge concluded that the circumstances of the plaintiff’s accident – i.e., a lack of training and a failure to warn – as well as the type of injury she sustained, fell squarely within those workplace hazards which the Legislature intended to compensate exclusively through the provisions of the Workers’ Compensation Act. In affirming the lower court’s ruling, the Appellate Division reiterated the substantial burden of proof required to overcome the workers’ compensation exclusivity bar. “The dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution so that the statutory framework of the Act is not circumvented simply because a known risk later blossoms into reality. An employer’s mere knowledge that the workplace is dangerous does not qualify as an intentional wrong,” the Appellate Division concluded. “We must instead demand a virtual certainty.”

Case Law Alert - 1st Qtr 2010