Many injured workers are surprised to learn that they cannot file a lawsuit against an employer or co-employee. (See exceptions noted below.) The New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-1 to 128, provides the exclusive remedy for claims against an employer when a worker is injured on the job, except for injuries that have resulted from the employer’s “intentional wrong” under 34:15-8. Under that exception, the worker may pursue a common-law tort remedy in the Law Division of Superior Court if:
- the employer knew that his or her actions were substantially certain to result in injury or death to the employee, and
- 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. For further information on this “intentional wrong” exception read Millison v. E.I. duPont de Mours & Co., 101 N.J. 161 (1985) and Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002).
This intentional wrong exception is very difficult to meet, and not something that the courts allow very often. It is really the exception to the general rule, and a very rare exception at that. In most cases suing an employer for negligence is absolutely not allowed by the Court for the reasons stated in the above paragraph.
The concept of employee fault, while not normally addressed in the Workers’ Compensation Statute, is addressed in N.J.S.A. 34:15-7. Compensation coverage may be denied where the injury or death is intentionally self-inflicted or when intoxication or the unlawful use of drugs is a factor, or where there is a willful failure to make use of a reasonable and proper personal protective device furnished by the employer. It is very difficult for an employer to use employee intoxication as a defense in New Jersey because the employer has to prove that the intoxication was basically the sole cause of the injury.
Once the initial information is gathered, your attorney we can prepare a Claim Petition while you are in the office or wait until a later date. Many attorneys prefer to file the Claim Petition during their initial meeting. Nowadays this is easier than ever to accomplish because the claim can be E-Filed at COURTS on-line on the computer while the injured worker is in our office, and the Claim Petition is immediately assigned a C.P. number and scheduled for a hearing in the appropriate workers’ compensation court.
Marci Hill Jordan is a Shareholder in Stark & Stark’s Marlton, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Ms. Jordan.