| Volume 12 Number 6 | Fall 2001 |
| APPELLATE DIVISON DECLINES TO
EXTEND "INTENTIONAL WRONG" EXCEPTION TO EXCLUSIVE REMEDY PROVISON OF WORKERS' COMPENSATION ACT |
NO MORE LIEN |
| The New Jersey Appellate Division recently ruled that an employer's knowledge of and failure to remedy unsafe working conditions that were previously cited by OSHA does not constitute an intentional wrong for purpose of the Workers' Compensation Act. | The law of Lien is important to all sides of litigation. In the settlement of a personal injury suit, the reduction of the gross recovery by any liens would affect the plaintiff's decision of what figure to accept. Similarly, this would bear on a carrier's calculation of what figure to offer and reasonably expect would be accepted by the plaintiff. Of course, understanding liens is especially significant for insurance carriers in their attempts to subrogate and recover the amounts paid in first party benefits to their injured insureds. |
| Typically, an employer is protected from direct liability claims for injuries to employees by virtue of the Workers' Compensation Act, which sets forth that workers' compensation shall be the exclusive remedy for the injured worker. The exception to this exclusive provision concerns intentional wrongs committed by the employer. The scope of this exception was previously defined by the Court to include situations where the employer demonstrates an actual intent to injure, or where the employer knowingly exposed the employee to a risk that is "substantially or virtually certain to result in injury". | The law of liens and subrogation in New Jersey previously created a seeming inequity. Generally, a plaintiff is barred by the Collateral Source Rule embodied in NJSA 2A:15-97 from asserting a claim against a tortfeasor and recovering for a medical expenses which are in fact paid by health insurer; since the medical bills are paid. The plaintiff did not suffer a loss for same. However, the plaintiff would then have to satisfy the lien of the insurance carrier who covered the medical bills. Thereby, the insurance carrier would be made whole but the plaintiff was forced to pay for the bills without having right to assert a claim and recover for them. |
| Crippen Vs. Central Jersey Concrete and Pipe Co. involved a wrongful death claim brought on behalf of an employee of a concrete pipe manufacturer who suffocated when he fell into a material hopper and was buried in sand and gravel. The flow of materials from an adjacent conveyor belt into the hopper was controlled by a manual lever that the decedent was operating pior to his death. In order to access the lever, the decedent had to walk across a plank that spanned the hopper and then climb a step ladder. After the accident, it came to light that the employer had been cited numerous times by OSHA in connection with this arrangement. The OSHA citations charged the employer with four serious violations and required prompt abatement of those violations. When it investigated the accident, OSHA further cited the employer for failure to abate the previously-issued violations. The employer's representative admitted that a decision was made to do the minimum necessary so it would appear to OSHA that the violations had been abated, although they continued to exist. | This issue was broached in Werner Vs. Latham, 332 NJ Super 76 (App.Div. 2000). A plaintiff had sustained catastrophic injuries in a motorcycle accident, which was not covered by PIP under the New Jersey's No Fault Law, NJSA 36:6A, et seq. Therefore the health insurer paid the medical bills. When the plaintiff brought suit, he also sought a declaratory judgment that the health insurer was not entitled to a lien. The appellate court held that NJSA 2A:15-97 controlled, and therefore the tortfeasor was not liable for the paid medical expenses. However, the health insurer's recovery on it's lien was limited to only the portion of the judgment or settlement reasonably attributably to the medical expenses. This case furthered the principle that a plaintiff is entitled to a full single recovery, but still left intact the health insurer's right to assert a lien and subrogate. |
| Despite the employer's blatant and admitted attempts to mislead OSHA, the Appellate Division found that this conduct did not demonstrate awareness of a
continued on page 3 |
On June 26, 2001, The New Jersey Supreme Court directly continued on page 3 |
