Look Out Below! – Petitioner's Intentional Injury Claim Falls Short of Piercing the New Jersey Workers' Compensation Bar

New Jersey – Workers' Compensation

Key Points:

• A petitioner has a very high burden to prove an intentional injury and pierce the workers' compensation bar.
• The court will look at a wide variety of factors in assessing the employer's alleged misconduct in an intentional injury claim.
• Employers should perform a thorough and complete investigation in worker' compensation claims to avoid liability for an intentional injury claim.

The Appellate Division has once again rejected a claim for an “intentional injury” in Kane v. County of Burlington, Docket No. A-2342-10T3 (December 9, 2011). In Kane, the petitioner/plaintiff was hired as a maintenance mechanic and HVAC mechanic. He also owned his own mechanical business and worked for a local mental health center where he performed maintenance, mechanical and HVAC tasks. As a licensed mechanic, Kane was familiar with the methods for installing compressors on rooftops.

On more than twenty occasions, Kane had hoisted compressors to the rooftops of buildings by hand, although none of the compressors weighed more than fifteen pounds. Whenever he installed heavier compressors, the compressor was lifted by a crane. The decision whether to use a crane or to hoist the compressor by hand was made by Kane's immediate supervisor, Ken James.

Interestingly, the court noted that Kane was in excellent physical condition, having been trained by a professional weightlifter. He could move great amounts of weight, such as being able to dead lift 570 pounds and incline bench 375 pounds.

James issued a work order directing Kane to install a 121-pound compressor onto the roof of a county building. Kane initially was to install the compressor by himself. However, Watkins, a County Assistant Superintendent, later assigned Kane an assistant, Staiger. When Kane and Staiger arrived at the work site, there was no crane present. However, neither man objected.

Kane later testified that when he arrived at the worksite, it was his opinion he could hoist the compressor "[o]r he would not have attempted the job." He added, "I am a professional, I should be able to know my job. I should not be told how to do my job. I'm trained, I'm certified, that's why they hired me, for my knowledge and my expertise."

Kane and Staiger decided that Kane would stand on the roof to pull the compressor up using a rope, while Staiger remained on the ground to guide the compressor so it would not get caught on an overhang. While hoisting the compressor, the rope slid from Kane’s hands, causing him to fall backward, hit his head and sustain injury.

Kane received workers' compensation benefits. He then filed a personal injury complaint against the county, alleging that the county acted recklessly by "intentionally placing him in an unsafe job detail with minimum safety equipment, and knew or should have known that the hoisting of a compressor to the roof was certain to cause serious injury or death to an employee."

 During depositions, James acknowledged that for safety reasons, hoisting a compressor weighing more than seventy-five pounds was "typically a two-man job" and that one person hoisting a 120-pound compressor alone "wouldn't be safe." Watkins maintained that two men could safely lift a 150-pound compressor onto a roof without a crane. Doty, the Superintendent of Buildings and Grounds for the county, testified that compressors weighing over 100 pounds would typically be lifted to the roof with "a crane or some type of chain and hoist," although he maintained that two people could safely lift a 120-pound compressor if both men stood on the roof raising the compressor with a rope "hand-over-hand."

Kane’s expert opined that Kane's method of hoisting the compressor was "extremely dangerous" and that the ladder method recommended by both Watkins and James was "more dangerous," based on the weight of the compressor, the lack of fall protection on the roof and the inability of the worker on the ladder to maintain three-point contact. The expert also stated that the use of a crane would have "eliminated the hazards involved with manually handling the compressor."

At the conclusion of pretrial discovery, the county moved for summary judgment, arguing that Kane did not raise a genuine issue of material fact sufficient to overcome the exclusive remedy provision of the workers' compensation statute. After initial denial of the motion, the county subsequently filed a motion for reconsideration, which the judge granted, citing Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161 (1985).

In affirming the dismissal, the Appellate Division first reviewed the intentional injury exception of the workers’ compensation bar as interpreted by the Supreme Court of New Jersey in Millison and Laidlow v. Hariton Mach. Co., 170 N.J. 602 (2002). To summarize, under the "intentional wrong" exception, a plaintiff may pursue common law remedies if he or she satisfies the following two-prong test:

(1) the employer must know that his actions are substantially certain to result in injury or death to the employee; and

(2) the resulting injury and the circumstances of its infliction on the worker must be:

(a) more than a fact of life of industrial employment; and;

(b) plainly beyond anything the legislature intended the Workers' Compensation Act to immunize.

An employer's mere knowledge and appreciation of a risk - something short of substantial certainty - is not intent. Even an employer who requires his employee to perform a task that contains an appreciable risk of harm has not committed an intentional wrong. Reckless or wanton behavior is not an intentional wrong. The court emphasized in Millison that if “intentional wrong” is interpreted too broadly, this single exception would swallow up the entire exclusivity provision of the Act.

The appellate division then went on to note that, unlike the facts in Millison and Laidlow, in the case before it, the county's conduct was more akin to the "mere knowledge and appreciation of a risk" found to be insufficient to pierce the workers' compensation bar. There was no showing that the county was aware that requiring two men to pull a 120-pound compressor up to the roof was "substantially certain" to result in injury. James and Watkins believed that two employees working together could safely accomplish the assigned task, which was not an unreasonable assumption in light of Kane's physical fitness. Moreover, there was no evidence of prior similar accidents or close calls, no evidence that OSHA regulations were violated, and no evidence that Kane or Staiger had ever complained about the assignment. While it was true that in the past cranes were used when the compressor was heavy, there was no evidence in the record showing that James was aware that if a crane was not used, injury was a virtual certainty. The court concluded that, at most, the conduct of James and Watkins was an instance of gross negligence, or a wanton disregard for the safety of another, but such conduct was not sufficient to overcome the workers' compensation bar.

As our economy continues to recover, it is anticipated that there will be an ever-increasing number of cases like this that will attempt to pierce the workers’ compensation bar so as to obtain benefits in excess of those provided by the Workers' Compensation Act. Despite the high number of cases in this area, this decision continues to show that courts, while looking at a wide variety of factors, will require a showing of significantly dangerous behavior on behalf of the employer before allowing such a recovery.

Nevertheless, employers would be wise to perform thorough and complete investigations when an injury occurs, documenting as much as possible, since there is no telling what single fact, such as here – the plaintiff’s extremely high level of physical fitness – may have an impact on a court’s final analysis. If you have a workplace injury and have questions on how to investigate or respond, contact your workers’ compensation defense counsel immediately. It could save you tens of thousands of dollars down the road.
 

*Bob, a shareholder in our Cherry Hill, New Jersey, office, can be reached at 856.414.6009 or rjfitzgerald@mdwcg.com.

Defense Digest, VOlume 18, No. 1, March 2012