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Is workers’ compensation always an injured worker’s exclusive remedy? P.2

In our last post, we spoke briefly about New Jersey law as it concerns the exclusiveness of workers’ compensation as a remedy for injured workers. As we noted, an injured worker is able to sue an employer under very limited circumstances—only in cases where the employer has “substantial certainty” that a workplace condition would result in harm to workers.

The substantial certainty standard is all the more difficult to meet given that case law has established the additional rule that a plaintiff is unable to sue an employer for a workplace injury if the injury can be fairly said to be an ordinary condition in the plaintiff’s industry, even if the employer did have substantial certainty of harm. 

The case that gave rise to this rule was Menkevich v. Delta Tools, which involved an experienced carpenter whose hand was injured while he used a table saw to make plunge cuts in pieces of wood. In that case, the carpenter had been instructed not to use the saw without a safety guard, but that policy was never actually enforced by the employer. Still, the carpenter was unable to recover because the circumstances under which the injury occurred were deemed to be a “fact of life” for workers in the industry.

The case established what is known as the “context” test for intentional harm claims. So, in order for an injured worker to sue his or her employer for on –the-job injuries, he or she has to show (1) that the employer had a substantial certainty that harm would result and (2) that the circumstances under which the injuries occurred cannot reasonably be considered a “fact of life” for workers in the industry.

In any workers’ compensation case, but especially in cases where an injured worker believes he or she has a case for intentional harm, it is critical to work with an experienced attorney to put forward the strongest case possible. Our firm is committed to helping injured workers build the strongest cases possible. 

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